Exhibit 10.6
SECOND AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), is made and entered into as of June 30, 2004 among CURATIVE HEALTH
SERVICES, INC., a Minnesota corporation formerly known as Curative Holding Co.
("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 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 as of April 23, 2004, as amended by that
certain First Amendment to Amended and Restated Credit Agreement and Collateral
Documents dated as of May 3, 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. The parties hereto desire to enter into this Amendment to amend certain
provisions of the Credit Agreement as provided for herein.
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 3 hereof, the Credit
Agreement is hereby amended as follows:
(a) Section 7.15 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 7.15. Total Leverage Ratio. The Borrowers shall
not permit the Total Leverage Ratio as of the last day of any Fiscal
Quarter to be greater than the amount specified in the table below
for the corresponding period specified below for each Fiscal
Quarter.
Quarterly Period Maximum Total Leverage Ratio
Fiscal Quarter Ended June 30, 2004 5.25:1.00
Fiscal Quarter Ended September 30, 2004 6.50:1.00
Fiscal Quarter Ended December 31, 2004 7.00:1.00
Fiscal Quarter Ended March 31, 2005 6.50:1.00
Fiscal Quarter Ended June 30, 2005 6.00:1.00
Fiscal Quarter Ended September 30, 2005 5.50:1.00
Fiscal Quarter Ended December 31, 2005 5.30:1.00
Fiscal Quarter Ended March 31, 2006 3.75:1.00
Fiscal Quarter Ended June 30, 2006 3.75:1.00
Fiscal Quarter Ended September 30, 2006 3.25:1.00
Fiscal Quarter Ended December 31, 2006 3.25:1.00
Fiscal Quarter Ended March 31, 2007 3.00:1.00
Fiscal Quarter Ended June 30, 2007 3.00:1.00
Fiscal Quarter Ended September 30, 2007 2.75:1.00
Fiscal Quarter Ended December 31, 2007 2.75:1.00
Fiscal Quarter Ended March 31, 2008 2.50:1.00
Fiscal Quarter Ended June 30, 2008 2.50:1.00
Fiscal Quarter Ended September 30, 2008 and each Fiscal 2.25:1.00
Quarter thereafter
(b) Section 7.17 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 7.17. Fixed Charge Coverage Ratio. The Borrowers
shall not permit the Fixed Charge Coverage Ratio, determined on a
consolidated basis for the Borrowers and their consolidated
Subsidiaries, for the twelve (12) months ending as of the last day
of any Fiscal Quarter, to be less than the amount specified in the
table below for the corresponding period specified below for each
Fiscal Quarter.
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Minimum Fixed Charge
Quarterly Period Coverage Ratio
Fiscal Quarter Ended June 30, 2004 1.50:1.00
Fiscal Quarter Ended September 30, 2004 1.50:1.00
Fiscal Quarter Ended December 31, 2004 1.25:1.00
Fiscal Quarter Ended March 31, 2005 1.25:1.00
Fiscal Quarter Ended June 30, 2005 1.25:1.00
Fiscal Quarter Ended September 30, 2005 1.25:1.00
Fiscal Quarter Ended December 31, 2005 1.25:1.00
Fiscal Quarter Ended March 31, 2006 2.00:1.00
Fiscal Quarter Ended June 30, 2006 2.00:1.00
Fiscal Quarter Ended September 30, 2006 2.25:1.00
Fiscal Quarter Ended December 31, 2006 2.25:1.00
Fiscal Quarter Ended March 31, 2007 2.75:1.00
Fiscal Quarter Ended June 30, 2007 2.75:1.00
Fiscal Quarter Ended September 30, 2007 2.75:1.00
Fiscal Quarter Ended December 31, 2007 2.75:1.00
Fiscal Quarter Ended March 31, 2008 and each Fiscal 3.25:1.00
Quarter thereafter
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 after giving effect to this Amendment, 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 GE Capital and each of the
Credit Parties.
4. 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.
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.
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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 Credit Party hereby waives any provision of
law that renders any provision hereof prohibited or unenforceable in any
respect.
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.
Delivery of an executed signature page hereof by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
8. 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.
9. 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]
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IN WITNESS WHEREOF, the parties have caused this Second Amendment to
Amended and Restated 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/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
------------------------------------
Title: Executive VP and CFO
------------------------------------
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 Amended and Restated 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 Co., its Sole
Member
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
------------------------------------
Title: Treasurer
------------------------------------
INFINITY INFUSION II, LLC
By: Curative Health Services Co., its Sole
Member
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
------------------------------------
Title: Treasurer
------------------------------------
[Signature page to Second Amendment to Amended and Restated Credit Agreement]
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/ 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
-----------------------------------
CURATIVE HEALTH SERVICES CO.,
a Minnesota corporation formerly known as
Curative Health Services, Inc.
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxx
-----------------------------------
Title: CFO and Treasurer
-----------------------------------
CRITICAL CARE SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxx
-----------------------------------
Title: CFO and Treasurer
-----------------------------------
[Signature page to Second Amendment to Amended and Restated Credit Agreement]
GUARANTORS:
CURATIVE HEALTH SERVICES III CO.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
------------------------------------
Title: CFO and Treasurer
------------------------------------
[Signature page to Second Amendment to Amended and Restated Credit Agreement]
GENERAL ELECTRIC CAPITAL
CORPORATION, as Lender and Agent
By: /s/ Xxxx X. Xxxxx III
-------------------------------------
Name: Xxxx X. Xxxxx III
Its Duly Authorized Signatory
[Signature page to Second Amendment to Amended and Restated Credit Agreement]
CONFIRMATION OF GUARANTY
The undersigned Guarantor hereby (a) acknowledges, consents and agrees to
the terms of the foregoing Second Amendment to Amended and Restated Credit
Agreement (the "Amendment"), including without limitation, the amendments to the
Amended and Restated Credit Agreement 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 30th day of June, 2004.
CURATIVE HEALTH SERVICES III CO.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxx
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Title: CFO and Treasurer
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