Exhibit 10.2
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), is made and
entered into as of October 10, 2003 among CURATIVE HEALTH SERVICES, INC., a
Minnesota corporation ("Holdings"), XXXXXXXX.XXX, 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, Inc., 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 that certain Consent and First
Amendment to Credit Agreement, dated as of July 11, 2003, by and among the
Borrowers, Lenders and Agent, 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 the
definitions of Revolving Credit Commitment and Term Loan Commitment, among other
things.
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. 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 the
definitions of "Acquisition", "Revolving Credit Commitment" and "Term Loan
Commitment" in their entirety and substituting in lieu thereof the following new
definitions to read in their entirety as follows:
"Acquisition" means the purchase by any Credit Party of: (i)
any company, limited liability company, association, partnership or
other organization that is engaged in any business that is not
materially different than the businesses engaged in by the Credit
Parties on the Closing Date; (ii) all or substantially all of the
assets of any such Person or (iii) a business line of any Person
which business line is related to the business line of the
Borrowers.
"Revolving Credit Commitment" means: (a) as to any Lender (i)
for the period from the Closing Date through but not including July
11, 2003, a commitment in the amount of $15,000,000 held by GE
Capital, as sole Lender, (ii) for the period on and after July 11,
2003 through but not including the Second Amendment Effective Date,
a commitment in the amount of $20,000,000 held by GE Capital, as
sole Lender, and (iii) for the period on and after the Second
Amendment Effective Date, as to any Lender listed on the signature
pages to the Second Amendment, the amount (if any) set forth thereon
opposite the name of such Lender under the heading "Revolving Credit
Commitment"; (b) with respect to any assignee of a Revolving Credit
Commitment, the amount of the transferor Lender's Revolving Credit
Commitment assigned to such assignee pursuant to Section 11.6; and
(c) as to all Lenders having a Revolving Credit Commitment, the
aggregate commitment of all Lenders to make Revolving Credit
Advances, which aggregate commitment shall be (i) $15,000,000 for
the period from the Closing Date through but not including July 11,
2003, (ii) $20,000,000 for the period on and after July 11, 2003
through but not including the Second Amendment Effective Date, and
(iii) $15,000,000 on and after the Second Amendment Effective Date,
as such amount may be reduced from time to time pursuant to Section
2.8 or changed as a result of an assignment pursuant to Section
11.6. The term "Revolving Credit Commitment" does not include the
Swingline Commitment.
"Term Loan Commitment" means: (a) as to any Lender (i) for the
period from the Closing Date through but not including the Second
Amendment Effective Date, a commitment in the amount of $20,000,000
held by GE Capital, as sole Lender, and (ii) for the period on and
after the Second Amendment Effective Date, as to any Lender listed
on the signature pages to the Second Amendment, the amount (if any)
set forth opposite the name of such Lender under the heading "Term
Loan Commitment"; (b) with respect to any assignee of a Term Loan
Commitment, the amount of the transferor Lender's Term Loan
Commitment assigned to such assignee pursuant to Section 11.6, and
(c) as to all Lenders with a Term Loan Commitment, the aggregate
commitment of all Lenders to make the Term Loan, which aggregate
commitment shall be (i) $20,000,000 on the Closing Date, and (ii)
$25,000,000 on and after the Second Amendment Effective Date. After
any Term Loan advance to be made pursuant to the Second Amendment,
each reference to a Lender's Term Loan Commitment shall refer to the
outstanding principal amount of that Lender's Term Loan.
(b) Section 1.1 of the Credit Agreement is hereby amended by deleting the
definitions of "Indenture", "Original Note Issuance Date", "Senior Subordinated
Debt" and "Senior Subordinated Notes" in their entirety.
(c) Section 1.1 of the Credit Agreement is hereby amended by inserting the
following new definitions for "Second Amendment" and "Second Amendment Effective
Date" to read in their entirety as follows:
"Second Amendment" means that certain Second Amendment to
Credit Agreement dated as of October 10, 2003, by and among
Borrowers, Agent and Lenders.
"Second Amendment Effective Date" means October 10, 2003.
(d) Section 2.1(b) of the Credit Agreement is hereby amended by deleting
the first sentence of such section in its entirety and substituting in lieu
thereof the following new sentence to read in its entirety as follows:
Upon the terms and subject to the conditions set forth herein (i) on the
Closing Date, each Lender, severally and not jointly, agrees to advance
funds to the Borrowers (each a "Closing Date Term Loan") in a principal
amount equal to its Term Loan Commitment as of the Closing Date not to
exceed $20,000,000 in the aggregate for all Lenders, and (ii) on and after
the Second Amendment Effective Date, each Lender, severally and not
jointly, agrees to advance funds to the Borrowers (each a "Post-Closing
Date Term Loan"; together with the Closing Date Term Loan referred to
herein collectively as the "Term Loan") in an aggregate principal amount
for all such Lenders of $5,000,000.
(e) Section 7.13 of the Credit Agreement is hereby amended by deleting
said 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) $6,500,000 in
the aggregate during the 2003 Fiscal Year and (b) $5,000,000 in the
aggregate during any Fiscal Year thereafter.
(f) Section 7.21 of the Credit Agreement is hereby amended by deleting
such Section in its entirety.
(g) Section 8.1(l) of the Credit Agreement is hereby amended by deleting
said Section in its entirety and substituting in lieu thereof the following new
Section to read in its entirety as follows:
(l) a Change of Control shall occur;
(h) Section 8.1 of the Credit Agreement is hereby amended by deleting
Section 8.1(u) in its entirety.
(h) Disclosure Schedule 1.1 (Permitted Restructuring) of the Credit
Agreement is hereby amended by deleting said Schedule in its entirety and
substituting in lieu thereof the Disclosure Schedule 1.1 (Permitted
Restructuring) attached hereto as Exhibit A.
Except for the amendments set forth above in this Section 1, the Credit
Agreement shall remain unchanged and in full force and effect. Nothing in this
Amendment is intended, or shall be construed, to constitute a novation or an
accord and satisfaction of Borrowers' or any other Credit Party's Obligations
under or in connection with the Credit Agreement or to modify, affect or impair
the perfection or continuity of Agent's security interests in, security titles
to or other liens on any Collateral for the Obligations.
2. Consent Revocation. The parties hereto hereby agree that the consent
granted by the Agent and Lenders in Section 2 of the First Amendment is and
shall hereby be deemed null and void ab initio and of no further force and
effect.
3. Covenant Revocation. The parties hereto hereby agree that the covenants
made by the Borrowers in Section 3 of the First Amendment are and shall hereby
be deemed null and void ab initio and of no further force and effect.
4. 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).
5. 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 a Term Note in the aggregate principal
amount of $5,000,000 duly executed by each of the Borrowers and payable to
the order of GE Capital, in form and substance satisfactory to Agent.
6. Additional Agreements and Acknowledgements. The parties hereto hereby
acknowledge and agree that upon the effectiveness of this Amendment, (a) the
entire Post-Closing Date Term Loan in an aggregate principal amount of
$5,000,000 will be deemed to have been made by Lender to Borrowers on the Second
Amendment Effective Date, (b) the Term Loan advance made on the Closing Date in
the amount of $20,000,000 and the Post-Closing Date Term Loan in the amount of
$5,000,000 shall constitute one general obligation of Borrower and be deemed to
be the Term Loan, and (c) the entire proceeds of the Post-Closing Date Term Loan
will be applied by Lender to the repayment of outstanding Revolving Credit
Advances (without any reduction in the Revolving Credit Commitment). Each of the
Borrowers hereby directs Lender to apply the proceeds of the Post-Closing Date
Term Loan to the repayment of outstanding Revolving Credit Advances as provided
for in clause (c) of the immediately preceding sentence.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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]
IN WITNESS WHEREOF, the parties have caused this Second 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.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
XXXXXXXX.XXX, INC.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Treasurer
HEMOPHILIA ACCESS, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary and Treasurer
APEX THERAPEUTIC CARE, INC.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
CHS SERVICES, INC.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Treasurer
[Signature page to Second Amendment to Credit Agreement]
CURATIVE HEALTH SERVICES OF NEW YORK, INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Treasurer
OPTIMAL CARE PLUS, INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Treasurer
INFINITY INFUSION, LLC
By: Curative Health Services, Inc., its Sole Member
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary and Manager
INFINITY INFUSION II, LLC
By: Curative Health Services, Inc., its Sole Member
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary and Manager
[Signature page to Second Amendment to Credit Agreement]
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/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
MEDCARE, INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Treasurer
CURATIVE PHARMACY SERVICES, INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Treasurer
[Signature page to Second Amendment to Credit Agreement]
AGENT AND REQUIRED LENDERS:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Lender and Agent
Revolving Credit Commitment: By: /s/ Xxxxx Xxxxxx
$15,000,000 ----------------
Term Loan Name: Xxxxx Xxxxxx
Commitment: $25,000,000 Its Duly Authorized Signatory
[Signature page to Second Amendment to Credit Agreement]
CONFIRMATION OF GUARANTY
Each of the undersigned Guarantors hereby acknowledges, consents and
agrees to the terms of the foregoing Second 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 10th day of October, 2003.
CURATIVE HEALTH SERVICES CO.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Treasurer
CURATIVE HEALTH SERVICES III CO.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Treasurer
[Signature page to Confirmation of Guaranty]
DISCLOSURE SCHEDULE 1.1
PERMITTED RESTRUCTURING
Each Borrower hereby represents and warrants to Agent and Lenders that set forth
below in this Disclosure Schedule 1.1 is a true, correct and complete
description of the proposed Permitted Restructuring.
1. On or about August 19, 2003 Curative Health Services, Inc., a Minnesota
corporation ("CHS") will complete a holding company reorganization in accordance
with Section 302A.626 of the Minnesota Business Corporation Act.
2. The holding company organizational structure will be completed pursuant to a
Plan of Merger, dated as of August 15, 2003 (the "Plan of Merger"), by and among
Curative Holding Co., a Minnesota corporation and a wholly owned subsidiary of
CHS ("Curative Holding"), CHS, and Curative Health Services Co., a Minnesota
corporation and a wholly owned subsidiary of Curative Holding ("Merger Sub").
The Plan of Merger provides for the merger (the "Merger") of Merger Sub with and
into CHS, with CHS as the surviving corporation with the name "Curative Health
Services Co." Pursuant to Section 302A.626 (subd. 2) of the Minnesota Business
Corporation Act, shareholder approval is not required for the Merger. As a
result of the Merger, CHS will become a wholly owned subsidiary of Curative
Holding. Prior to the Merger, Curative Holding will execute and deliver to Agent
a Guaranty and a security agreement and pledge agreement, all in form and
substance satisfactory to Agent, pursuant to which Curative Holdings will become
a Guarantor and will grant to Agent a valid first priority lien on all of its
assets (including Stock of any Subsidiaries)
3. Immediately following the completion of the Merger, Curative Holding will
change its name from "Curative Holding Co." to "Curative Health Services, Inc."
by means of a merger (the "Name Change Merger") with Curative Health Services IV
Co., a Minnesota corporation and a wholly owned subsidiary of Curative Holding.
Curative Holding will be the survivor of such Merger.
4. By virtue of the Merger, each share of CHS's outstanding common stock will be
automatically converted, on a share for share basis, into one share of common
stock of Curative Holding. Shareholder approval of this conversion is not
required under Applicable Law. As a result, each shareholder of CHS will become
the owner of an identical number of shares of common stock of Curative Holding.
Additionally, each outstanding option to purchase shares of CHS's common stock
will automatically convert into an option to purchase, upon the same terms and
conditions, an identical number of shares of Curative Holding's common stock.
The conversion of shares of capital stock in the Merger will occur without an
exchange of certificates. Accordingly, certificates formerly representing shares
of outstanding capital stock of CHS are deemed to represent the same number of
shares of capital stock in Curative Holding. Curative Holding's common stock
will be listed on The NASDAQ Stock Market under the symbol "CURE". Immediately
following the Merger, each of CHS and Curative Holding will file a Form 8-K
declaring Curative Holding as the successor issuer to CHS. In addition, Curative
Holding will file post-effective amendments to each active CHS S-8 and S-3, by
which Curative Holding shall assume the registration statements.
5. In accordance with Section 302A.626 (subd. 7) of the Minnesota Business
Corporation Act, the provisions of the articles of incorporation and bylaws of
Curative Holding and CHS shall be identical prior to and immediately after
giving effect to the Merger; provided, however, that provisions dealing with the
corporate name and capitalization shall differ as permitted by Section 302A.626
(subd 3) (8) of the Minnesota Business Corporation Act, and the articles of
incorporation of CHS after the Merger shall have a parent company shareholder
voting provision not present in the articles of incorporation of
Curative Holding as required by Section 302A.626 (subd. 3)((8)(i) of the
Minnesota Business Corporation Act. The authorized capital stock of Curative
Holding immediately after the Merger shall be identical to that of CHS
immediately prior to the Merger, and the designations, rights, powers and
preferences of such capital stock of Curative Holding immediately after the
Merger and the qualifications, limitations and restrictions thereof shall also
be identical to that of CHS immediately prior to the Merger. The directors and
executive officers of Curative Holding are the same individuals who are serving
in such capacities on behalf of CHS immediately prior to the Merger. The holding
company reorganization is tax free to CHS, CHS's shareholders and Curative
Holding and its consolidated subsidiaries.
6. Immediately following the Merger, CHS will assign to Curative Holding all of
CHS's rights, titles, interests and obligations and Curative Holding will assume
all of CHS's rights, titles, interests and obligations, under the Rights
Agreement, dated as of October 25, 1995, by and between CHS and Xxxxx Fargo Bank
Minnesota, N.A., successor to Norwest Bank Minnesota, National Association, as
Rights Agent (the "Rights Agreement"). As a result of the Merger, rights to
purchase shares of CHS's Series A junior participating preferred stock pursuant
to the Rights Agreement will be exchanged for rights to purchase shares of
Curative Holding's Series A junior participating preferred stock pursuant to the
Rights Agreement (the "Rights"). Until the occurrence of certain events
specified in the Rights Agreement, the Rights will be represented by the
outstanding shares of Curative Holding's common stock in respect of which the
rights are issued, will not be transferable separately from the associated
shares of Curative Holding's common stock and are automatically transferred upon
transfer of the associated common stock.
7. Immediately following the Merger, CHS will assign to Curative Holding and
Curative Holding will assume all of CHS's obligations under those certain
existing unsecured subordinated convertible notes of CHS (collectively, the
"Convertible Notes"). This assignment will not (a) require the consent of the
holders of Convertible Notes under the terms of such notes or the related
documents and agreements pursuant to which they were issued, (b) result in any
default or event of default (by virtue of change of control or otherwise) or the
acceleration of the maturity of any Convertible Notes or the indebtedness
evidenced thereby, and (c) will not invalidate any of the terms of the
subordination agreements relating to the Convertible Notes to which such holders
are a party or otherwise impair in any manner adverse to Agent and Lenders the
subordination of the Convertible Notes provided for therein, and after giving
effect to such assignment the obligations of Curative Holdings as assignee of
CHS in respect of the Convertible Notes shall be subordinated on terms
satisfactory to Agent and Lenders to the Obligations owing by Curative Holdings
to Agent and Lenders under the Loan Documents.
8. Immediately following the Merger, Curative Holding will become a named party
to certain insurance policies of CHS.
9. On or about August 21, 2003, CHS transferred all outstanding shares of
Curative Health Services of New York, Inc. to Curative Holding in exchange for
261,434 shares of common stock of Curative Holding (the "Holding Shares')
10. On the earlier to occur of December 31, 2003 or the sale of the woundcare
business, Curative Holding will assume all of CHS's obligations under certain
employment and related agreements with executive officers of Curative Holding.
11. It is intended that sometime following the Merger and after receipt of a
favorable private letter ruling from the IRS, (a) all assets owned by CHS not
directly related to the conduct of the woundcare business will be transferred to
Curative Holding, (b) the stock of all Subsidiaries owned by CHS (collectively,
the "CHS Subsidiaries") and (c) the Holding Shares will be contributed by CHS to
Curative Health Services III Co., a Minnesota corporation and a wholly owned
subsidiary of CHS ("Stock Sub"). Prior to the contribution by CHS of assets, the
stock of its Subsidiaries and the Holding Shares to Stock Sub and the merger of
Stock Sub with Curative Holding, Stock Sub will execute and deliver to Agent a
Guaranty and a security agreement and pledge agreement, all in form and
substance satisfactory to Agent, pursuant to which Stock Sub will become a
Guarantor.
2
12. It is intended that following the subsidiary stock transfer described in 9
above, Stock Sub will merge with and into Curative Holding, with Curative
Holding being the survivor of such merger (the "Stock Sub Merger") and Stock Sub
will cease to exist. Following the Stock Sub Merger, Curative Holding shall be
the direct owner of all of the stock of the CHS Subsidiaries.
3
TERM NOTE
October 10, 2003 New York, New York
$5,000,000
FOR VALUE RECEIVED, the undersigned, CURATIVE HEALTH SERVICES, INC., a Minnesota
corporation, XXXXXXXX.XXX, INC., a Delaware corporation, HEMOPHILIA ACCESS,
INC., a Tennessee corporation, APEX THERAPEUTIC CARE, INC., a California
corporation, CHS SERVICES, INC., a Delaware corporation, CURATIVE HEALTH
SERVICES OF NEW YORK, INC., a New York corporation, OPTIMAL CARE PLUS, INC., a
Delaware corporation, INFINITY INFUSION, LLC, a Delaware limited liability
company, INFINITY INFUSION II, LLC, a Delaware limited liability company,
INFINITY INFUSION CARE, LTD., a Texas limited partnership, MEDCARE, INC., a
Delaware corporation, CURATIVE PHARMACY SERVICES, INC., a Delaware corporation
(the collectively, the "Borrowers"), HEREBY JOINTLY AND SEVERALLY PROMISE TO PAY
to the order of GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation
("Lender"), at the offices of GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation, as Agent for Lenders ("Agent"), at its address at 000 Xxxx Xxxxx
Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, or at such other place as Agent may designate
from time to time in writing, in lawful money of the United States of America
and in immediately available funds, the amount of Five Million Dollars
($5,000,000). Borrowers further promise to pay interest on the outstanding
unpaid principal amount hereof from the date hereof until payment in full at the
rate or rates from time to time applicable to the Term Loan as determined in
accordance with 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.
This Term Note is one of the Term Notes issued pursuant to that certain Credit
Agreement dated as of June 9, 2003 by and among Borrowers, the other Persons
named therein as Credit Parties, Agent, Lender and 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"), and is entitled to the benefit and
security of the Credit Agreement, the Borrower Security Agreement and all of the
other Loan Documents referred to therein. Reference is hereby made to the Credit
Agreement for a statement of all of the terms and conditions under which the
Loans evidenced hereby are made and are to be repaid.
The principal amount of the indebtedness evidenced hereby shall be payable in
the amounts and on the dates specified in the Credit Agreement. Interest thereon
shall be paid until such principal amount is paid in full at such interest rates
and at such times, and pursuant to such calculations, as are specified in the
Credit Agreement. The terms of the Credit Agreement are hereby incorporated
herein by reference. If any payment on this Term Note becomes due and payable on
a day other than a Business Day, the maturity thereof shall be extended to the
next succeeding Business Day and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.
Upon and after the occurrence of any Event of Default, the entire principal
amount this Term Note, together with accrued interest thereon, may, as provided
in the Credit Agreement, and without demand, notice or legal process of any
kind, be declared, and immediately shall become, due and payable.
Time is of the essence of this Term Note. Except as expressly required in the
Credit Agreement, demand, presentment, protest and notice of nonpayment and
protest are hereby waived by Borrowers. Borrowers further agree, subject only to
any limitation imposed by applicable law, to pay all expenses, including
attorneys' fees and legal expenses, incurred by Agent and Lender in endeavoring
to collect any amounts payable hereunder which are not paid when due, whether by
acceleration or otherwise.
THIS TERM NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE.
Whenever possible each provision of this Term Note shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provisions
of this Term Note shall be prohibited by or invalid under applicable law, such
provisions shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Term Note. Whenever in this Term Note reference is made to Agent, Lender
or Borrowers, such reference shall be deemed to include, as applicable, a
reference to their respective permitted successors and assigns and in the case
of Lender, any financial institution to which it has sold or assigned all or any
part of its interest in the Term Loan or in its commitment to make the Term Loan
as permitted by the Credit Agreement. The provisions of this Term Note shall be
binding upon and inure to the benefit of such successors and assigns, except
that no Borrower may assign its rights or obligations. Borrowers' successors and
assigns shall include, without limitation, a receiver, trustee or debtor in
possession of or for any Borrower.
[Remainder of page intentionally left blank; signature pages follow]
2
CURATIVE HEALTH SERVICES, INC.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
XXXXXXXX.XXX, INC.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Treasurer
HEMOPHILIA ACCESS, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary and Treasurer
APEX THERAPEUTIC CARE, INC.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
CHS SERVICES, INC.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Treasurer
CURATIVE HEALTH SERVICES OF NEW YORK, INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Treasurer
OPTIMAL CARE PLUS, INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Treasurer
INFINITY INFUSION, LLC
By: Curative Health Services, Inc., its Sole Member
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary and Manager
INFINITY INFUSION II, LLC
By: Curative Health Services, Inc., its Sole Member
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary and Manager
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/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
MEDCARE, INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Treasurer
CURATIVE PHARMACY SERVICES, INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Treasurer
