Exhibit 4
AMENDMENT NO. 2 TO CREDIT AGREEMENT
This Amendment No. 2 (this "Amendment") is entered into as of September
1, 2000 by and among OMNICARE, INC., a Delaware corporation (the "Borrower"),
the undersigned lenders (collectively, the "Lenders"), BANK ONE, NA (formerly
known as The First National Bank of Chicago), as one of the Lenders and in its
capacity as contractual representative (the "Agent") on behalf of itself and the
other Lenders, and BANK OF AMERICA, N.A. and SunTrust Bank, as Lenders and as
Co-Documentation Agents.
RECITALS:
WHEREAS, the Borrower, the Lenders and the Agent have entered into that
certain 364-Day Credit Agreement dated as of December 21, 1998, as amended (the
"Credit Agreement");
WHEREAS, the Borrower seeks to amend the Credit Agreement to extend the
maturity thereof; and
WHEREAS, the Lenders and the Agent are willing to amend the Credit
Agreement on the terms and conditions herein set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Defined Terms. Capitalized terms used herein and not otherwise
defined herein shall have the meanings attributed to such terms in the Credit
Agreement.
2. Amendments to Credit Agreement. Upon the effectiveness of this
Amendment in accordance with the provisions of Section 4 below, the Credit
Agreement is hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended by
deleting the definitions of "Business Day", "Corporate Base Rate",
"Eurodollar Base Rate", and "First Chicago" and inserting the following
new definitions alphabetically:
"Bank One" means Bank One, NA, having its principal
office in Chicago, Illinois, in its individual capacity, and
its successors.
"Business Day" means (i) with respect to any
borrowing, payment or rate selection of Eurodollar Loans, a
day (other than a Saturday or Sunday) on which banks generally
are open in Chicago, Illinois and New York, New York for the
conduct of substantially all of their commercial lending
activities and on which dealings in Dollars are carried on in
the London interbank market and (ii) for all other purposes, a
day (other than a Saturday or Sunday) on which banks generally
are open in Chicago, Illinois and New York, New York for the
conduct of substantially all of their commercial lending
activities.
"Eurodollar Base Rate" means, with respect to a
Eurodollar Advance for the relevant Interest Period, the
applicable British Bankers' Association Interest Settlement
Rate for deposits in Dollars appearing on Reuters Screen FRBD
as of 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period, and having a maturity equal
to such Interest Period; provided, that, (i) if the Reuters
Screen FRBD rate is not available to the Agent for any reason,
the applicable Eurodollar Base Rate for the relevant Interest
Period shall instead be the applicable British Bankers'
Association Interest Settlement Rate for deposits in Dollars
as reported by any other generally recognized financial
information service as of 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period,
and having a maturity equal to such Interest Period, and (ii)
if no such British Bankers' Association Interest Settlement
Rate is available to the Agent, the applicable Eurodollar Base
Rate for the relevant Interest Period shall instead be the
rate determined by the Agent to be the rate at which Bank One
or one of its affiliate banks offers to place deposits in
Dollars with first-class banks in the London interbank market
at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, in the
approximate amount of Bank One's relevant Eurodollar Loan and
having a maturity equal to such Interest Period. Any
Eurodollar Base Rate determined on the basis of the rate
displayed on Reuters Screen FRBD (or such other generally
recognized financial information service as described in
clause (ii) above) in accordance with the foregoing provisions
of this subparagraph shall be subject to corrections, if any,
made in such rate and displayed by such service within one
hour of the time when such rate is first displayed on such
service.
"Prime Rate" means the prime rate of interest
announced by Bank One or its parent from time to time (which
is not necessarily the lowest rate charged to any customer),
changing when and as said prime rate changes.
and by amending the definition of "Eurodollar Rate" to delete the last sentence
thereof.
(b) The Credit Agreement is hereby amended by (i) deleting all
references to the defined term "Corporate Base Rate" and substituting therefor
the defined term "Prime Rate", (ii) deleting all references to the defined term
"First Chicago" and substituting therefor the defined term "Bank One", and (iii)
deleting all references to "The First National Bank of Chicago" and substituting
therefor "Bank One, NA (having its principal office in Chicago, Illinois)".
(c) Section 1.1 of the Credit Agreement is hereby amended by deleting
from the definition of "Revolving Credit Termination Date" the date "September
2, 2000" and substituting therefor the date "August 31, 2001".
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(d) Section 1.1 of the Credit Agreement is hereby amended by
deleting from the definition of "Facility Termination Date" the date
"September 2, 2001" and substituting therefor the date "August 31,
2002".
(e) Section 2.2 of the Credit Agreement is hereby amended by
deleting from the third sentence thereof the dates "December 2, 2000,
March 2, 2001, June 2, 2001" and substituting therefor the dates
"November 30, 2001, February 28, 2002, May 31, 2002".
(f) Schedule I of the Credit Agreement is hereby amended by
deleting the table contained therein in its entirety and substituting
therefor the following:
-------------------------------------------------------------------------------------
STATUS LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
STATUS STATUS STATUS STATUS STATUS
-------------------------------------------------------------------------------------
Applicable 1.00% 1.25% 1.50% 1.75% 2.00%
Margin
-------------------------------------------------------------------------------------
Applicable 0.20% 0.25% 0.25% 0.375% 0.50%
Commitment
Fee Rate
-------------------------------------------------------------------------------------
(g) The Litigation Disclosure section of Schedule II of the
Credit Agreement is hereby amended by substituting therefor in its
entirety a new amended Litigation Disclosure section of Schedule II in
the form attached hereto.
(h) Schedule IV of the Credit Agreement is hereby amended by
substituting therefor in its entirety a new Amended Schedule IV in the
form attached hereto.
3. Exiting Lenders; New Lenders.
3.1 On the Effective Date, the Borrower shall pay to the Agent for the
account of each of the following Lenders (the "Exiting Lenders") all accrued and
unpaid commitment fees to but excluding the Effective Date, all accrued and
unpaid interest on the outstanding Loans of such Exiting Lenders to but
excluding the Effective Date and all amounts owing to such Exiting Lenders
pursuant to Section 3.4 of the Credit Agreement:
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BW Capital Markets, Inc.
Citicorp USA, Inc.
Comerica Bank
Deutsche Bank AG New York Branch
and/or Cayman Islands Branch
Upon receipt of such amounts from the Borrower, the Agent shall promptly pay
such amounts to the respective Exiting Lenders.
3.2 As of the Effective Date, the Borrower shall be deemed to have
requested Loans pursuant to the Credit Agreement from each of the Lenders other
than the Exiting Lenders (the "Continuing Lenders"), the proceeds of which shall
be used to repay the principal amount of the outstanding Loans of the Exiting
Lenders as of the Effective Date. The respective amounts of such requested Loans
shall be determined by the Agent such that, after the making of such Loans by
the Continuing Lenders and the repayment of the Loans of the Exiting Lenders,
the outstanding Loans on the Effective Date shall be held by the Continuing
Lenders pro rata in accordance with their respective Commitments after giving
effect to this Amendment. The Agent shall give the Lenders reasonable notice of
the amount of the respective Loans to be made on the Effective Date, and each
Continuing Lender shall make its Loan available to the Agent prior to 12:00 noon
(Chicago time) on the Effective Date. Upon receipt thereof, the Agent shall
promptly use the proceeds of such Loans to repay the principal amount of the
outstanding Loans of the Exiting Lenders.
3.3 From and after the Effective Date and upon payment to each Exiting
Lender of all principal of and interest on such Exiting Lender's outstanding
Loans, all commitment fees owing to such Exiting Lender and all funding
indemnification owing to such Exiting Lender in accordance with Section 3.1 and
Section 3.2, each such Exiting Lender shall not be a Lender under the Credit
Agreement, as amended hereby, and shall be released from all obligations
thereunder, whether heretofore or hereafter arising.
3.4 On the Effective Date, the Borrower shall pay to the Agent for the
account of each of the Lenders other than the Exiting Lenders all amounts owing
to such Lenders pursuant to Section 3.4 of the Credit Agreement. Upon receipt of
such amounts from the Borrower, the Agent shall promptly pay such amounts to
such respective Lenders.
3.5 As of the Effective Date, each Lender that had no Commitment under
the Credit Agreement (prior to the effectiveness of this Amendment) shall be
bound by the terms of the Credit Agreement as amended hereby and shall have all
of the rights and obligations of a Lender under the Loan Documents. Each such
Lender hereby (a) confirms that it has received a copy of the Credit Agreement,
together with copies of the Borrower's consolidated financial statements dated
as of December 31, 1999, March 31, 2000 and June 30, 2000 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Amendment, (b) agrees that it will,
independently and without reliance upon the Agent or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Documents, (c) appoints and authorizes the Agent to take such action as
agent on
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its behalf and to exercise such powers under the Loan Documents as are delegated
to the Agent by the terms thereof, together with such powers as are reasonably
incidental thereto, and (d) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
4. Conditions of Effectiveness. This Amendment shall become effective
and be deemed effective as of the date hereof (the "Effective Date") if, and
only if, the Agent shall have received each of the following:
(a) duly executed originals of this Amendment from the Borrower and
each of the Lenders;
(b) the Reaffirmation attached hereto duly executed on behalf of
each of the Initial Guarantors and Supplemental Guarantors;
(c) an opinion of Xxxxx Xxxxxxx, Vice President and General Counsel
of the Borrower, substantially in the form of Exhibit A attached
hereto; and
(d) all fees and other amounts due and payable on or prior to the
Effective Date.
5. Representations and Warranties of the Borrower. The Borrower
represents and warrants to the Lenders that, as of the Effective Date before and
after giving effect to this Amendment:
(a) there exists no Default or Unmatured Default; and
(b) the representations and warranties contained in Article V of the
Credit Agreement are true and correct as of the Effective Date except
to the extent any such representation or warranty is stated to relate
solely to an earlier date, in which case such representation or
warranty was true and correct on and as of such earlier date.
6. Reference to and Effect on the Credit Agreement.
6.1 Upon the effectiveness of this Amendment pursuant to Section 4
hereof, on and after the Effective Date each reference in the Credit Agreement
to "this Agreement," "hereunder," "hereof," "herein" or words of like import and
each reference to the Credit Agreement in each Loan Document shall mean and be a
reference to the Credit Agreement as modified hereby.
6.2 Except as specifically waived or amended herein, all of the terms,
conditions and covenants of the Credit Agreement and the other Loan Documents
shall remain in full force and effect and are hereby ratified and confirmed.
6.3 The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of (a) any right,
power or remedy of any Lender or the Agent under the Credit Agreement or any of
the Loan Documents, or
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(b) any Default or Unmatured Default under the Credit Agreement.
7. CHOICE OF LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
8. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original and all
of which taken together shall constitute one and the same agreement.
9. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the Borrower, the Agent and the Lenders have
executed this Amendment No. 2 as of the date first above written.
OMNICARE, INC.
By: ______________________________
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Chief Financial Officer
BANK ONE, NA, as a Lender and as
Administrative Agent
By: ______________________________
Name: Xxxxxx X. Xxxxx
Title: First Vice President
BANK OF AMERICA, N.A., as a Lender
and as Co-Documentation Agent
By:_________________________________
Name:
Title:
SUNTRUST BANK, as a Lender and as
Co-Documentation Agent
By:_________________________________
Name:
Title:
BNP PARIBAS, as a Lender
By:_________________________________
Name:
Title:
Amendment No. 2 to
Omnicare, Inc. 364-Day Credit Agreement
September 1, 2000
CREDIT SUISSE FIRST BOSTON,
as a Lender
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
FLEET NATIONAL BANK,
as a Lender
By:_________________________________
Name:
Title:
THE HUNTINGTON NATIONAL BANK,
as a Lender
By:_________________________________
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By:_________________________________
Name:
Title:
Amendment No. 2 to
Omnicare, Inc. 364-Day Credit Agreement
September 1, 2000
FIRSTAR BANK, N.A.,
as a Lender
By:_________________________________
Name:
Title:
FIFTH THIRD BANK,
as a Lender
By:_________________________________
Name:
Title:
XXXXXX TRUST AND SAVINGS BANK,
as a Lender
By:_________________________________
Name:
Title:
EXITING LENDERS:
BW CAPITAL MARKETS, INC.,
as an Exiting Lender
By:_________________________________
Name:
Title:
Amendment No. 2 to
Omnicare, Inc. 364-Day Credit Agreement
September 1, 2000
CITICORP USA, INC.
as an Exiting Lender
By:_________________________________
Name:
Title:
COMERICA BANK,
as an Exiting Lender
By:_________________________________
Name:
Title:
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH,
as an Exiting Lender
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
Amendment No. 2 to
Omnicare, Inc. 364-Day Credit Agreement
September 1, 2000
SCHEDULE IV
COMMITMENTS
Lender Commitment
------ ----------
Bank One, NA $45,000,000
Bank of America, N.A. 65,000,000
SunTrust Bank 55,000,000
BNP Paribas 25,000,000
Credit Suisse First Boston 25,000,000
Fleet National Bank 25,000,000
The Huntington National Bank 20,000,000
LaSalle Bank National Association 15,000,000
Firstar Bank, N.A. 15,000,000
Fifth Third Bank 5,000,000
Xxxxxx Trust and Savings Bank 5,000,000
---------
Total $300,000,000
REAFFIRMATION
Each of the undersigned hereby acknowledges receipt of a copy
of the foregoing Amendment No. 2 to the 364-Day Credit Agreement dated as of
December 21, 1998, as amended, by and among Omnicare, Inc., a Delaware
corporation (the "Borrower"), the lenders from time to time parties thereto
(collectively, the "Lenders") and Bank One, NA (formerly known as The First
National Bank of Chicago), as one of the Lenders and in its capacity as
contractual representative (the "Agent") on behalf of itself and the other
Lenders (as amended and as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement") which Amendment
No. 2 is dated as of September 1, 2000 (the "Amendment"). Capitalized terms used
in this Reaffirmation and not defined herein shall have the meanings given to
them in the Credit Agreement. Without in any way establishing a course of
dealing by the Agent or any Lender, each of the undersigned reaffirms the terms
and conditions of the Guaranty executed by it and acknowledges and agrees that
such agreement and each and every other Loan Document executed by the
undersigned in connection with the Credit Agreement remain in full force and
effect and are hereby reaffirmed, ratified and confirmed. All references to the
Credit Agreement contained in the above-referenced documents shall be a
reference to the Credit Agreement as modified by the Amendment and as the same
may from time to time hereafter be amended, modified or restated.
AAHS ACQUISITION CORP.
ACCU-MED SERVICES, INC.
ACP ACQUISITION CORP.
AMC-NEW YORK, INC.
AMC TENNESSEE, INC.
XXXXXXXX MEDICAL SERVICES, INC.
BACH'S PHARMACY (EAST), INC.
BPNY ACQUISITION CORP.
BPTX ACQUISITION CORP.
CAMPO'S MEDICAL PHARMACY, INC.
CARE PHARMACEUTICAL SERVICES, INC.
CP ACQUISITION CORP.
CHP ACQUISITION CORP.
CIP ACQUISITION CORP.
COMPSCRIPT, INC.
COMPSCRIPT-BOCA, INC.
COMPSCRIPT-MOBILE, INC.
CTLP ACQUISITION CORP.
D&R PHARMACEUTICAL SERVICES, INC.
DATASCRIPT CORP.
XXXXX PHARMACY, INC.
EHIS ACQUISITION CORP.
ELECTRA ACQUISITION CORP.
XXXXX DRUGS, INC.
EVERGREEN PHARMACEUTICAL, INC.
EVERGREEN PHARMACEUTICAL OF CALIFORNIA,
INC.
HMIS, INC.
HOME CARE PHARMACY, INC.
HOME PHARMACY SERVICES, INC.
XXXXXX'X PHARMACY, INC.
HYTREE PHARMACY, INC.
I.V. SERVICES OF OKLAHOMA, INC.
INTERLOCK PHARMACY SYSTEMS, INC.
JHC ACQUISITION CORP.
KONSULT, INC.
XXXXXXX HEALTH SERVICES, INC.
XXXXXXX MEDICAL PRODUCTS, INC.
XXXXXXXX MEDICAL SUPPLY, INC.
LPI ACQUISITION CORP.
LO-MED PRESCRIPTION SERVICES, INC.
MANAGED HEALTH CARE, INC.
MED WORLD ACQUISITION CORP.
MEDICAL ARTS HEALTH CARE, INC.
MEDICAL SERVICES CONSORTIUM, INC.
MOSI ACQUISITION CORP.
NIHAN & XXXXXX, INC.
NIV ACQUISITION CORP.
NORTH SHORE PHARMACY SERVICES, INC.
OCR-RA ACQUISITION CORP.
OKLAHOMA CONSULTING SERVICES, INC.
OMNICARE PHARMACIES OF PENNSYLVANIA
WEST, INC.
OMNICARE OF NORTHEAST IOWA LLC
OMNICARE PHARMACY AND SUPPLY SERVICES,
INC.
OMNICARE PHARMACY OF THE MIDWEST, INC.
PBM-PLUS, INC.
PHARMACON CORP.
PHARMACY ASSOCIATES OF GLENS FALLS, INC.
PHARMED HOLDINGS, INC.
PRN PHARMACEUTICAL SERVICES, INC.
PROFESSIONAL PHARMACY GROUP, INC.
ROESCHEN'S HEALTHCARE CORP.
ROYAL CARE OF MICHIGAN LLC
SHORE PHARMACEUTICAL PROVIDERS, INC.
SOUTHSIDE APOTHECARY, INC.
SPECIALIZED HOME INFUSION OF MICHIGAN LLC
SPECIALIZED PATIENT CARE SERVICES, INC.
SPECIALIZED PHARMACY SERVICES, INC.
STERLING HEALTH CARE SERVICES, INC.
SUPERIOR CARE PHARMACY, INC.
TCPI ACQUISITION CORP.
THG ACQUISITION CORP.
THREE FORKS APOTHECARY, INC.
UC ACQUISITION CORP.
UNITED HEALTH CARE, INC.
UNITED HEALTH REFERRAL, INC.
UNITED SKIN THERAPEUTICS, INC.
VALUE HEALTHCARE SERVICES, INC.
VALUE PHARMACY, INC.
VITAL CARE INFUSION SUPPLY, INC.
XXXXX MEDICAL SYSTEMS, INC.
WESTHAVEN SERVICES CO.
XXXXXXXXXX DRUG COMPANY, INCORPORATED
XXXXXXX'X PHARMACY
By:
------------------------------
Xxxxxxx X. Xxxxxx,
Treasurer
BACH'S PHARMACY SERVICES, LLC
BADGER ACQUISITION LLC
BADGER ACQUISITION OF WASHINGTON LLC
BADGER ACQUISITION OF MINNESOTA LLC
BADGER ACQUISITION OF WISCONSIN LLC
BADGER ACQUISITION OF INDIANA LLC
BADGER ACQUISITION OF KENTUCKY LLC
BADGER ACQUISITION OF MICHIGAN LLC
BADGER ACQUISITION OF ORLANDO LLC
BADGER ACQUISITION OF TAMPA LLC
BADGER ACQUISITION OF BROOKSVILLE LLC
BADGER ACQUISITION OF PITTSBURGH LLC
BADGER ACQUISITION OF ALLENTOWN LLC
BADGER ACQUISITION OF OHIO LLC
BADGER ACQUISITION OF TEXAS LLC
LCPS ACQUISITION, LLC
OCR SERVICES CORPORATION
OMNICARE PENNSYLVANIA MED SUPPLY, LLC
OMNICARE PHARMACIES OF PENNSYLVANIA
EAST, LLC
OMNICARE PHARMACY OF COLORADO LLC
OMNICARE PHARMACY OF MAINE LLC
OMNICARE PHARMACY OF MASSACHUSETTS LLC
OMNICARE PHARMACY OF TENNESSEE LLC
PCI ACQUISITION, LLC
PHARMACY CONSULTANTS, INC.
PHARM-CORP OF MAINE LLC
SHC ACQUISITION CO, LLC
By:
--------------------------
Xxxxxxxxx X. Xxxxxx,
Secretary
HOSPICE OF THE HEARTLAND, LLC
By: HOSPICE ACQUISITION ONE CORP.,
Member
By:
----------------------------
Xxxxxxx X. Xxxxxx,
Treasurer
and By: HOSPICE ACQUISITION TWO CORP.,
Member
By:
----------------------------
Xxxxxxx X. Xxxxxx,
Treasurer
HOSPICE CARE OF OKLAHOMA, LLC
By: HOSPICE ACQUISITION ONE CORP.,
Member
By:
----------------------------
Xxxxxxx X. Xxxxxx,
Treasurer
and By: HOSPICE ACQUISITION TWO CORP.,
Member
By:
----------------------------
Xxxxxxx X. Xxxxxx,
Treasurer
OMNICARE CLINICAL RESEARCH, INC.
OMNICARE PHARMACEUTICS, INC.
By:
----------------------------
Xxxxxxx X. Xxxxxx,
Treasurer
COROMED, INC.
By:
----------------------------
Xxxxxxx X. Xxxxxx,
Treasurer
OMNICARE MANAGEMENT COMPANY
By:
----------------------------
Xxxxx X. Xxxxxxx, Xx.,
Treasurer
CREEKSIDE MANAGED CARE PHARMACY, INC.
OFL CORP.
OMNIBILL SERVICES LLC
XXXXXXXX.XXX, INC.
OMNICARE PHARMACIES OF MAINE HOLDING
COMPANY
OMNICARE PHARMACY OF MAINE LLC
By:
----------------------------
Xxxxxx X. Xxxxx
Assistant Treasurer
