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EXHIBIT 10.53
Portions of this Exhibit marked with an * have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request
for confidential treatment.
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FIRST AMENDMENT TO PRIME VENDOR AGREEMENT
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THIS FIRST AMENDMENT TO PRIME VENDOR AGREEMENT ("FIRST AMENDMENT") is
dated as of January 1, 2000, by and between Cardinal Health* ("CARDINAL") and
Coram Healthcare Corporation** ("CUSTOMER").
RECITALS
A. On October 1, 1998, the parties executed a certain Prime Vendor Agreement
pursuant to which Cardinal agreed to supply to Customer, and Customer agreed to
purchase from Cardinal, its primary requirements of pharmaceuticals (the
"ORIGINAL AGREEMENT").
B. On October 14, 1999, the parties executed a Letter Agreement (the "LETTER
AGREEMENT") pursuant to which the parties agreed to amend certain provisions of
the Original Agreement.
C. The parties desire to amend the Original Agreement and the Letter Agreement
with respect to the term, early termination, pricing, payment terms, and
provision of consulting services.
NOW THEREFORE, in consideration of the foregoing recitals, the parties
hereby agree as follows:
1. Term. Section 12 of the Original Agreement is hereby amended to add after the
first sentence thereof the following: "The renewal term of this Agreement (the
"RENEWAL TERM") will be for a period of five (5) years commencing January 1,
2000."
2. Purchase Price. Section 3 of the Original Agreement is hereby amended as
follows:
a. Cardinal agrees to return, within three business days following the
date of execution of this First Amendment, to Coram * of the Prepay
Deposit currently held by Cardinal under the Original and Letter
Agreements.
b. In the second paragraph of Section 3, the first sentence is hereby
deleted in its entirety and replaced with the following:
The term "Prepay Deposit" means an amount paid by Coram to
Cardinal which is intended to equal Coram's average purchases
over a * day period and in which Coram hereby grants to
Cardinal a security interest. From time to time during the
term of this Agreement, Coram and Cardinal will review Coram's
purchases for purposes of determining Coram's average
purchases and promptly thereafter the parties will make
appropriate adjustments (e.g. either a payment to Cardinal to
increase the Prepay Deposit or a payment or credit to Coram to
decrease the Prepay Deposit) to ensure that the Prepay Deposit
is equal to Coram's then-average purchases over a * day
period.
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c. In the third paragraph of Section 3, the third sentence is hereby
deleted and replaced it in its entirety with the following:
In order to qualify for pricing and any COGS Adjustments as
articulated in the Original Agreement or this First Amendment,
each Coram facility must purchase its Primary Requirements
from Cardinal, and Coram must purchase a minimum of * of its
total purchases hereunder through CardinalSOURCE(TM) Programs
or other contracts provided by Cardinal or its subsidiaries
where the vendor net pricing is less than current Coram
pricing, meets Coram's formulary requirements, and has a
minimum of three (3) months' firm pricing.
3. Payment Terms. Section 4 of the Original Agreement is hereby amended to
delete the first paragraph thereof and replace it with the following:
*
4. Cost of Goods. Exhibit A to the Original Agreement ("Original Exhibit A") is
hereby deleted in its entirety and replaced with Exhibit A attached hereto.
5. Consulting Services. In Section A of Exhibit B to the Original Agreement, the
following is added is new Section A.2.f.:
f. Consultative resources, as available, will be provided
from Cardinal staff members, upon reasonable request of
Coram to assist Coram in evaluating, bidding, awarding
and enforcing the utilization of Coram's own contracts.
6. Quarterly Reviews and Sales Calls. The following is added to Section F of
Exhibit B of the Original Agreement: Cardinal and Coram agree to meet at least
quarterly to discuss business issues relevant to the relationship between the
parties, including without limitation, purchasing issues, payment history,
invoice reconciliation and service levels. Cardinal agrees to cause a Cardinal
sales representative to visit each Coram facility at least quarterly to review
such issues.
7. Miscellaneous. Capitalized terms not defined herein will have the same
meaning ascribed to them in the Original Agreement or the Letter Agreement, it
being the intent of the parties that the Original Agreement, the Letter
Agreement and this First Amendment will be applied and construed as a single
instrument. Except as amended or modified hereby, all terms and conditions of
the Original Agreement and the Letter Agreement remain in full force and effect.
The Original Agreement, as modified by the Letter Agreement and this First
Amendment, constitutes the entire agreement between Cardinal and Customer
regarding the subject matter of this First Amendment and supersedes all prior or
contemporaneous writings and understandings between the parties regarding the
same. This First Amendment will be binding upon the parties, their heirs, legal
representatives, successors and assigns. The terms and provisions of this First
Amendment are severable.
If any term or provision of this First Amendment is determined to be illegal or
unenforceable by a court of competent jurisdiction, the remaining terms and
provisions of this First Amendment
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and the Original Agreement will remain in full force and effect. This First
Amendment may only be amended in a writing signed by both Cardinal and Customer.
The Original Agreement, as modified by the Letter Agreement and this First
Amendment, may be assigned by either party only with the prior written consent
of the other, which shall not be unreasonably withheld [provided, however, that
Cardinal may assign its rights and obligations hereunder and thereunder to any
affiliate of Cardinal.]
IN WITNESS WHEREOF, the parties have executed this First Amendment on
the date set forth above.
CARDINAL DISTRIBUTION*
By:
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Its:
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Date:
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*The term "CARDINAL DISTRIBUTION" or "CARDINAL" will include those entities set
forth in the Original Agreement.
CORAM HEALTHCARE CORPORATION**
By:
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Its:
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Date:
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**The term "CORAM HEALTHCARE CORPORATION" or "CUSTOMER" will include those
entities set forth in the Original Agreement.
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EXHIBIT A
Pricing Matrix
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