Exhibit 4-A(ii)
FIRST AMENDMENT
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TO REVOLVING CREDIT AGREEMENT
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This FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Amendment") is
made as of February 27, 2004, by and among PRIORITY HEALTHCARE CORPORATION, an
Indiana corporation (the "Borrower"), the several banks and other financial
institutions (the "Lenders") that are from time to time party to the Credit
Agreement (as defined below), SUNTRUST BANK, in its capacity as Administrative
Agent for the Lenders (the "Administrative Agent"), as Issuing Bank (the
"Issuing Bank") and as swingline lender (the "Swingline Lender").
WHEREAS, the Borrower, the Administrative Agent, the Issuing Bank, the
Swingline Lender and the Lenders are party to that certain Revolving Credit
Agreement, dated as of February 5, 2004, (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement");;
WHEREAS, the Borrower has requested that the Lenders amend the Credit
Agreement as set forth herein, and the Lenders are willing to so agree, subject
to the terms and conditions hereof
WHEREAS, each capitalized term not otherwise defined herein, shall have the
same meaning as in the Credit Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Amendment, the parties agree as
follows:
A. Amendment to the Credit Agreement.
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Section 6.3 of the Credit Agreement is amended hereby by deleting such
section in its entirety and replacing the following in lieu thereof:
Section 6.3 Consolidated Net Worth. The Borrower will not permit
its Consolidated Net Worth at any time to be less than an amount equal to
the sum of (i) 85% of the Consolidated Net Worth as at September 27, 2003,
plus (ii) 50% of Consolidated Net Income on a cumulative basis for all
Fiscal Quarters thereafter, commencing with the Fiscal Quarter ending
January 3, 2004; provided, that if Consolidated Net Income is negative in
any Fiscal Quarter the amount added for such Fiscal Quarter shall be zero
and such negative Consolidated Net Income shall not reduce the amount of
Consolidated Net Income added from any previous Fiscal Quarter, plus (iii)
85% of the amount by which the Borrower's "total stockholders' equity" is
increased as a result of any public or private offering of common stock of
the Borrower after the Closing Date. Promptly upon the consummation of such
offering, the Borrower shall notify the Administrative Agent in writing of
the amount of such increase in "total stockholders' equity".
B. Conditions Precedent.
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This Amendment shall become effective, when and only when the
Administrative Agent shall have received a duly executed counterpart of this
Amendment from the Borrower and the Required Lenders.
C. Miscellaneous.
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Section 1. Representations and Warranties. To induce the Lenders to enter
into this Amendment, the Borrower hereby represents and warrants to the Lenders
and the Administrative Agent that:
(a) the execution, delivery and performance of this
Amendment (1) is within its corporate power; (2) has been duly authorized
by all necessary corporate action and shareholder action; (3) does not
conflict with, or result in the breach of the terms, conditions or
provisions of, or constitute a default under, or result in any violation
of, or result in the creation of any Lien upon any of its properties or
assets or the properties and assets of any of its Subsidiaries pursuant to,
the charter or articles of organization or similar document, or by-Laws or
operating agreement or similar document of the Borrower, any award of any
arbitrator or any agreement (including any agreement with stockholders),
instrument, order, judgment, decree, statute, law, rule or regulation to
which the Borrower is subject and (4) does not require the consent,
permission, authorization, order or license of any governmental authority
or Person;
(b) this Amendment has been duly executed and delivered for
the benefit of or on behalf of the Borrower and constitutes a legal, valid
and binding obligation of Borrower, enforceable against the Borrower in
accordance with its terms except as the enforceability hereof may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
laws affecting creditors' rights and remedies in general; and
(c) after giving effect to this Amendment, all
representations and warranties set forth in Article IV of the Credit
Agreement are true and correct in all material respects and no Default or
Event of Default has occurred and is continuing as of the date hereof.
2. Survival. Except as expressly provided herein, the
Credit Agreement shall continue in full force and effect, and the
unamended terms and conditions of the Credit Agreement are expressly
incorporated herein and ratified and confirmed in all respects. This
Amendment is not intended to be or to create, nor shall it be
construed as, a novation or an accord and satisfaction.
3. Effect of Amendment. On and after the date hereof, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import shall
mean and be a reference to the Credit Agreement as amended hereby, and each
reference in the Credit Documents to the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended hereby.
4. Entire Understanding. This Amendment constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof. Neither
this Amendment nor any provision hereof may be changed, waived, discharged,
modified or terminated orally, but only by an instrument in writing signed by
the parties required to be a party thereto pursuant to the Agreement.
5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED IN ALL RESPECTS BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA
(WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF) AND ALL
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
6. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same document, and shall be
effective as of the date first above written.
7. Severability. In the event that any part of this Amendment shall be
found to be illegal or in violation of public policy, or for any reason
unenforceable at law, such finding shall not invalidate any other part thereof.
8. Reimbursement of Administrative Agent. Borrower shall reimburse the
Administrative Agent for the reasonable out-of-pocket expenses of the
Administrative Agent and the Arranger and the reasonable fees and expenses of
counsel for the Administrative Agent incurred in connection with this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their duly authorized officers as of the day and
year first above written.
PRIORITY HEALTHCARE CORPORATION, as
Borrower
By: /s/ Xxxxxxx Xxxx
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[SIGNATURE PAGE TO FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT]
SUNTRUST BANK
as Administrative Agent, as Issuing
Bank, as Swingline Lender and as
Lender
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
[SIGNATURE PAGE TO FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT]
REAFFIRMATION OF GUARANTY
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Each of the undersigned, being a Subsidiary Loan Party and a guarantor of
the Obligations of Priority Healthcare Corporation (the "Borrower") to the
Lenders (as defined below) under that certain Revolving Credit Agreement, dated
as of February 5, 2004, (as amended, restated, supplemented, or otherwise
modified from time to time, the "Credit Agreement"; capitalized terms used
herein but not defined herein shall have the respective meanings assigned to
such term in the Credit Agreement) by and among the Borrower, the several banks
and other financial institutions and lenders from time to time party thereto
(the "Lenders"), SUNTRUST BANK, in its capacity as administrative agent for the
Lenders (the "Administrative Agent"), as issuing bank (the "Issuing Bank") and
as swingline lender (the "Swingline Lender"), hereby (a) acknowledges its
receipt of a copy of the within and foregoing First Amendment to Revolving
Credit Agreement (the "Amendment"), (b) consents thereto and agrees to be bound
thereby and (c) agrees that its guaranty of the Obligations of Borrower to the
Lenders shall continue in full force and effect from and after the execution and
delivery by Borrower and the Lenders of the Amendment, without diminution or
impairment.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, each of the undersigned has caused this acknowledgment
to be executed under seal by their respective officers thereunto duly
authorized, as of February __, 2004.
PRIORITY HEALTHCARE PHARMACY, INC.
By: : /s/ Xxxxxxx Xxxx
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Name:
Title:
PRIORITY HEALTHCARE DISTRIBUTION, INC.
By: : /s/ Xxxxxxx Xxxx
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Name:
Title:
LYNNFIELD DRUG, INC.
By: : /s/ Xxxxxxx Xxxx
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Name:
Title:
LYNNFIELD COMPOUNDING CENTER, INC.
By: : /s/ Xxxxxxx Xxxx
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Name:
Title:
FRECO, INC.
By: : /s/ Xxxxxxx Xxxx
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Name:
Title:
CHESAPEAKE INFUSION, INC.
By: : /s/ Xxxxxxx Xxxx
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Name:
Title:
PRIORITY HEALTHCARE CORPORATION WEST
By: : /s/ Xxxxxxx Xxxx
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Name:
Title:
PHF, INC.
By: : /s/ Xxxxxxx Xxxx
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Name:
Title:
PHRC, INC.
By: : /s/ Xxxxxxx Xxxx
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Name:
Title:
XXXXXXX DRUG, INC.
By: : /s/ Xxxxxxx Xxxx
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Name:
Title:
PRIORITY HEALTHCARE CORPORATION
By: : /s/ Xxxxxxx Xxxx
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Name:
Title:
SPECIALTY INFUSION PHARMACY,INC.
By: : /s/ Xxxxxxx Xxxx
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Name:
Title:
SINUSPHARMACY, INC.
By: : /s/ Xxxxxxx Xxxx
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Name:
Title:
