EXHIBIT 99.6
AMENDMENT NO. 5 TO SECURITIES EXCHANGE AGREEMENT
AMENDMENT NO. 5 (this "Agreement"), dated as of December 31,
2001, in respect of the Securities Exchange Agreement dated as of May 6, 1998,
as heretofore amended (said Securities Exchange Agreement, as so amended, being
the "Securities Exchange Agreement", and the terms defined therein being used
herein as therein defined unless otherwise defined herein) among CORAM, INC., a
Delaware corporation (the "Company"), CORAM HEALTHCARE CORPORATION, a Delaware
corporation ("Holdings"), CERBERUS PARTNERS, L.P. ("Cerberus"), XXXXXXX XXXXX
CREDIT PARTNERS L.P. ("GSCP") and FOOTHILL CAPITAL CORPORATION ("Foothill")
(each a "Noteholder" and, together with any other holders from time to time of
interests in the Series A Notes or Series B Notes, collectively, the
"Noteholders").
WITNESSETH:
WHEREAS, the Noteholders, the Company and Holdings entered
into the Securities Exchange Agreement, pursuant to which the Noteholders
received, among other things, Series A Notes and Series B Notes, as the case may
be, in exchange for the Noteholders' interests in the Subordinated Rollover
Notes and the Warrants;
WHEREAS, pursuant to an Exchange Agreement, dated as of
December 29, 2000, by and among the Company and the Noteholders (the "December
2000 Exchange Agreement"), the Noteholders exchanged (the "December 2000
Exchange") approximately $97,715,434 aggregate principal amount of Series A
Notes and $11,610,542 of accrued interest on the Series A Notes and the Series B
Notes for their pro rata share of 905 shares of the Preferred Stock (as defined
in the December 2000 Exchange Agreement);
WHEREAS, following the December 2000 Exchange, the Noteholders
held $61,207,938 aggregate principal amount of Series A Notes and $92,084,099
aggregate principal amount of Series B Notes (collectively, the "December 2000
Notes");
WHEREAS, as of the date hereof, the Noteholders own in the
aggregate 100% of the outstanding principal amount of the Series A Notes and
Series B Notes;
WHEREAS, pursuant to an Exchange Agreement, dated as of
December 31, 2001, by and among the Company and the Noteholders (the "December
2001 Exchange Agreement"), the Noteholders have agreed to exchange (the
"December 2001 Exchange") an additional $21,000,000 aggregate principal amount
of Series A Notes and $1,900,500 of accrued interest on the Series A Notes and
the Series B Notes for their pro rata share of 189.5705 shares of the December
2001 Preferred Stock (as defined in the December 2001 Exchange Agreement);
WHEREAS, following the December 2001 Exchange, the Noteholders
will hold $40,207,938 aggregate principal amount of Series A Notes and
$92,084,099 aggregate principal amount of Series B Notes (collectively, the
"December 2001 Notes");
WHEREAS, as further consideration for the December 2001
Exchange, the Company, Holdings and the Noteholders have agreed to amend the
maturity of the December 2001 Notes; and
WHEREAS, the Company, Holdings and the Noteholders have agreed
to amend the Securities Exchange Agreement and to enter into this Agreement upon
the terms and subject to the conditions contained herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendments to the Securities Exchange Agreement.
Upon the satisfaction of the conditions contained in Section 4 of this
Agreement, Section 1 to the Securities Exchange Agreement is hereby amended by
deleting the existing definitions of "Series A Maturity Date", "Series A Notes",
"Series B Maturity Date" and "Series B Notes" and replacing them with the
following:
"Series A Maturity Date" shall mean the earlier of
(i) June 30, 2002, and (ii) the effective date of a Joint Plan
of Reorganization of Holdings and the Company.
"Series A Notes" shall mean the Series A Senior
Subordinated Notes of the Company issued to the Noteholders
hereunder, substantially in the form of Exhibit A-1 hereto,
and any Additional Series A Notes, together with any notes
substituted therefor.
"Series B Maturity Date" shall mean the earlier of
(i) June 30, 2002, and (ii) the effective date of a Joint Plan
of Reorganization of Holdings and the Company.
"Series B Notes" shall mean the Series B Senior
Subordinated Convertible Notes of the Company issued to the
Noteholders hereunder, substantially in the form of Exhibit
A-2 hereto, and any Additional Series A Notes, together with
any notes substituted therefor.
SECTION 2. Representations and Warranties of the Company and
Holdings. Each of the Company and Holdings hereby represents and warrants as to
itself and the Coram Parties that the execution, delivery and performance of
this Agreement, the Amended and Restated Series A Senior Subordinated Note and
the Amended and Restated Series B Senior Subordinated Convertible Note
(collectively, the "Amendment Agreements") have been each duly authorized by all
necessary corporate action on the part of such Coram Party and the Amendment
Agreements and the Securities Exchange Agreement amended hereby each constitute
a legal, valid and binding obligation of such Coram Party, enforceable against
it in accordance with their terms.
SECTION 3. Representations and Warranties of the Noteholders.
Each of the Noteholders hereby represents and warrants as to itself that the
execution, delivery and performance of this Agreement have been duly authorized
by all necessary corporate or partnership action on the part of such Noteholder.
SECTION 4. Conditions to Effectiveness. The amendments
contained in Section 1 of this Agreement shall be subject to the satisfaction of
the following conditions precedent:
2
(a) the due execution and delivery of this Agreement
by each of the Noteholders, Holdings and the Company;
(b) the due execution and delivery of a consent and
confirmation of guaranty, in the form attached hereto as Exhibit A, by
Holdings and each Subsidiary Guarantor listed on Annex A attached
hereto;
(c) the due execution and delivery of an Amended and
Restated Series A Senior Subordinated Note by the Company to each of
the Noteholders;
(d) the due execution and delivery of an Amended and
Restated Series B Senior Subordinated Convertible Note to each of the
Noteholders;
(e) the consent of the Xxxxxxxxx L.L.C., as lender
under the Financing Agreement, to this Agreement, the December 2001
Exchange Agreement and the transactions contemplated thereby; and
(f) the conditions precedent set forth in Section 6
of the December 2001 Exchange Agreement have been satisfied in full by
the Company or have been waived by the Noteholders, in their sole
discretion.
SECTION 5. Effect on the Securities Exchange Agreement. Except
as amended hereby, the Securities Exchange Agreement and the other Note
Documents shall remain in full force and effect. Except as set forth herein,
nothing in this Agreement shall be deemed to (i) constitute a forbearance or
waiver of compliance by any of the Coram Parties of any term, provision or
condition of the Securities Exchange Agreement or any other instrument or
agreement referred to therein or under the Note Documents or (ii) prejudice any
right or remedy that any Noteholder may not have or may have in the future under
or in connection with the Securities Exchange Agreements or any other Note
Document.
SECTION 6. Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together constitute one and the same agreement.
SECTION 7. Governing Law. The validity, interpretation and
enforcement of this Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard to the conflict of laws
principles thereof.
SECTION 8. Headings. Section headings in this Agreement are
included herein for the convenience of reference only and shall not constitute
part of this Agreement for any other purpose.
SECTION 9. References. References herein and in the other Note
Documents to the "Securities Exchange Agreement", "this Agreement", "hereunder",
"hereof", or words of like import referring to the Securities Exchange
Agreement, shall mean and be a reference to the Securities Exchange Agreement as
amended hereby.
3
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their proper and duly authorized
officers as of the date set forth above.
CORAM, INC.
By: /s/ XXXXX XXXXXX
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
Chief Financial Officer
CORAM HEALTHCARE CORPORATION
By: /s/ XXXXX XXXXXX
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
Chief Financial Officer
CERBERUS PARTNERS, L.P.
By Cerberus Associates LLC, its General
Partner
By: /s/ XXXX X. NEPORENT
---------------------------------------
Name: Xxxx X. Neporent
Title: Managing Director
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By: /s/ XXXXX X. BOOK
---------------------------------------
Name: Xxxxx X. Book
Title: Authorized Signatory
FOOTHILL CAPITAL CORPORATION
By: /s/ XXXXXX X. XXXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
[Signature Page to Amendment No. 5 to Securities Exchange Agreement]
EXHIBIT A
CONSENT
Dated as of December 31, 2001
Each of the undersigned, in its capacity as a Guarantor under
the Securities Exchange Agreement referred to in the foregoing Agreement, hereby
consents to the said Agreement and hereby confirms and agrees that its guaranty
of the Guaranteed Obligations (as such term is defined in the Guarantee
Agreements) is, and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects except that, upon the effectiveness of,
and on and after the date of, the said Agreement, each reference in each
Guarantee Agreement to "this Agreement", "hereunder", "thereunder", "thereof" or
words of like import shall mean and be a reference to the Securities Exchange
Agreement as amended by said Agreement.
This Consent may be executed in any number of counterparts
each of which, when executed and delivered, shall constitute an original, but
all executed counterparts together shall constitute one and the same instrument.
Delivery of an executed counterpart of a signature page to this Consent by
telecopier shall be effective as delivery of a manually executed counterpart of
this Consent.
CORAM HEALTHCARE CORPORATION
By: /s/ XXXXX XXXXXX
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
Chief Financial Officer
FOR EACH OF THE SUBSIDIARY
GUARANTORS LISTED ON ANNEX A
HERETO
By: /s/ XXXXX XXXXXX
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
Chief Financial Officer
c/o Coram Healthcare Corporation
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
A-1
ANNEX A
Subsidiaries
Coram International Holdings Ltd.
Coram Healthcare Limited
Fairfax Hematology Oncology Associates, Inc.
HealthInfusion, Inc.
H.M.S.S., Inc.
Coram Homecare of Illinois, Inc.
T2 Medical, Inc.
Coram Healthcare Corporation of Alabama
Coram Healthcare Corporation of Florida
Coram Healthcare Corporation of Greater X.X.
Xxxxx Healthcare Corporation of Greater New York
Coram Healthcare Corporation of Indiana
Coram Healthcare Corporation of Kentucky
Coram Healthcare Corporation of Michigan
Coram Healthcare Corporation of Mississippi
Coram Healthcare Corporation of Nevada
Coram Healthcare Corporation of Northern California
Coram Healthcare Corporation of Rhode Island
Coram Healthcare Corporation of South Carolina
Coram Healthcare Corporation of Southern California
Coram Healthcare Corporation of Southern Florida
Coram Homecare of Minnesota, Inc.
Coram Homecare of Northern California
Coram Service Corporation
Curaflex Health Services, Inc.
Coram Alternative Site Services, Inc.
Coram Healthcare Corporation of Massachusetts
Coram Healthcare Corporation of New York
Coram Healthcare Corporation of North Texas
Coram Healthcare Corporation of Utah
Coram Healthcare of Wyoming, L.L.C.
A-2
AMENDED AND RESTATED SERIES A SENIOR SUBORDINATED NOTE
$18,275,371.22 New York, New York
December 31, 2001
FOR VALUE RECEIVED, the undersigned, CORAM, INC., a Delaware
corporation ("Company"), hereby unconditionally PROMISES TO PAY to the order of
XXXXXXX XXXXX CREDIT PARTNERS L.P. ("Holder"), at Xxxxxxx Sachs Credit Partners
L.P., c/o Goldman, Xxxxx & Co., 00 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000,
or at such other place as the holder of this Series A Senior Subordinated Note
(the "Note") may designate from time to time in writing, in lawful money of the
United States of America and in immediately available funds, the principal
amount of $18,275,371.22 (EIGHTEEN MILLION TWO HUNDRED SEVENTY FIVE THOUSAND
THREE HUNDRED SEVENTY ONE DOLLARS AND TWENTY TWO CENTS), together with interest
on the unpaid principal amount of this Note outstanding from time to time from
the date hereof, at the rate provided in the Securities Exchange Agreement (as
hereinafter defined).
This Note is issued pursuant to that certain Securities
Exchange Agreement, dated as of May 6, 1998 between the Company and CORAM
HEALTHCARE CORPORATION, a Delaware corporation ("Holdings"), CERBERUS PARTNERS,
X.X. XXXXXXX XXXXX CREDIT PARTNERS L.P. and FOOTHILL CAPITAL CORPORATION, (as
amended from time to time, the "Securities Exchange Agreement"), and is entitled
to the benefit of the Note Documents provided for therein, to which reference is
hereby made for a statement of all of the terms and conditions under which the
indebtedness evidenced hereby is made. All capitalized terms, unless otherwise
defined herein, shall have the meanings ascribed to them in the Securities
Exchange Agreement.
The principal amount of the indebtedness evidenced hereby
shall be payable in the amounts and on the dates specified in the Securities
Exchange Agreement and, if not sooner paid in full, on the earlier of (i) June
30, 2002, and (ii) the effective date of a Joint Plan of Reorganization of
Holdings and the Company. Interest thereon shall be paid until such principal
amount is paid in full at such interest rates and at such times as are specified
in the Securities Exchange Agreement.
If any payment on this 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 an Event of Default, this
Note may, as provided in the Securities Exchange Agreement, and without demand,
notice or legal process of any kind, be declared, and immediately shall become,
due and payable.
B-1
Except as set forth in the Securities Exchange Agreement
demand, presentment, protest and notice of nonpayment and protest are hereby
waived by Company.
This Note amends and restates and is a substitute for, but is
not in payment or satisfaction of, the Series A Senior Subordinated Note dated
December 29, 2000, issued by the Company to the Holder.
[SIGNATURE ON THE FOLLOWING PAGE]
B-2
This Note has been executed, delivered and accepted at New
York, New York and shall be interpreted, governed by and construed in accordance
with, the laws of the State of New York.
CORAM, INC.
By: /s/ XXXXX XXXXXX
---------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
[Signature Page to Series A Note for Xxxxxxx Xxxxx Credit Partners L.P.]
B-3
AMENDED AND RESTATED SERIES A SENIOR SUBORDINATED NOTE
$14,392,797.20 New York, New York
December 31, 2001
FOR VALUE RECEIVED, the undersigned, CORAM, INC., a Delaware
corporation ("Company"), hereby unconditionally PROMISES TO PAY to the order of
CERBERUS PARTNERS, L.P. ("Holder"), at Cerberus Partners, L.P., 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as the holder of
this Series A Senior Subordinated Note (the "Note") may designate from time to
time in writing, in lawful money of the United States of America and in
immediately available funds, the principal amount of $14,392,797.20 (FOURTEEN
MILLION THREE HUNDRED NINETY TWO THOUSAND SEVEN HUNDRED NINETY SEVEN DOLLARS AND
TWENTY CENTS), together with interest on the unpaid principal amount of this
Note outstanding from time to time from the date hereof, at the rate provided in
the Securities Exchange Agreement (as hereinafter defined).
This Note is issued pursuant to that certain Securities
Exchange Agreement, dated as of May 6, 1998 between the Company and CORAM
HEALTHCARE CORPORATION, a Delaware corporation ("Holdings"), CERBERUS PARTNERS,
X.X. XXXXXXX XXXXX CREDIT PARTNERS L.P. and FOOTHILL CAPITAL CORPORATION, (as
amended from time to time, the "Securities Exchange Agreement"), and is entitled
to the benefit of the Note Documents provided for therein, to which reference is
hereby made for a statement of all of the terms and conditions under which the
indebtedness evidenced hereby is made. All capitalized terms, unless otherwise
defined herein, shall have the meanings ascribed to them in the Securities
Exchange Agreement.
The principal amount of the indebtedness evidenced hereby
shall be payable in the amounts and on the dates specified in the Securities
Exchange Agreement and, if not sooner paid in full, on the earlier of (i) June
30, 2002, and (ii) the effective date of a Joint Plan of Reorganization of
Holdings and the Company. Interest thereon shall be paid until such principal
amount is paid in full at such interest rates and at such times as are specified
in the Securities Exchange Agreement.
If any payment on this 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 an Event of Default, this
Note may, as provided in the Securities Exchange Agreement, and without demand,
notice or legal process of any kind, be declared, and immediately shall become,
due and payable.
B-4
Except as set forth in the Securities Exchange Agreement
demand, presentment, protest and notice of nonpayment and protest are hereby
waived by Company.
This Note amends and restates and is a substitute for, but is
not in payment or satisfaction of, the Series A Senior Subordinated Note dated
December 29, 2000, issued by the Company to the Holder.
[SIGNATURE ON THE FOLLOWING PAGE]
B-5
This Note has been executed, delivered and accepted at New
York, New York and shall be interpreted, governed by and construed in accordance
with, the laws of the State of New York.
CORAM, INC.
By: /s/ XXXXX XXXXXX
---------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
[Signature Page to Series A Note for Cerberus Partners, L.P.]
B-6
AMENDED AND RESTATED SERIES A SENIOR SUBORDINATED NOTE
$7,539,769.58 New York, New York
December 31, 2001
FOR VALUE RECEIVED, the undersigned, CORAM, INC., a Delaware
corporation ("Company"), hereby unconditionally PROMISES TO PAY to the order of
FOOTHILL CAPITAL CORPORATION ("Holder"), at Foothill Capital Corporation, 0000
Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, XX 00000, or at such other place as the holder of
this Series A Senior Subordinated Note (the "Note") may designate from time to
time in writing, in lawful money of the United States of America and in
immediately available funds, the principal amount of $7,539,769.58 (SEVEN
MILLION FIVE HUNDRED THIRTY NINE THOUSAND SEVEN HUNDRED SIXTY NINE DOLLARS AND
FIFTY EIGHT CENTS), together with interest on the unpaid principal amount of
this Note outstanding from time to time from the date hereof, at the rate
provided in the Securities Exchange Agreement (as hereinafter defined).
This Note is issued pursuant to that certain Securities
Exchange Agreement, dated as of May 6, 1998 between the Company and CORAM
HEALTHCARE CORPORATION, a Delaware corporation ("Holdings"), CERBERUS PARTNERS,
X.X. XXXXXXX XXXXX CREDIT PARTNERS L.P. and FOOTHILL CAPITAL CORPORATION, (as
amended from time to time, the "Securities Exchange Agreement"), and is entitled
to the benefit of the Note Documents provided for therein, to which reference is
hereby made for a statement of all of the terms and conditions under which the
indebtedness evidenced hereby is made. All capitalized terms, unless otherwise
defined herein, shall have the meanings ascribed to them in the Securities
Exchange Agreement.
The principal amount of the indebtedness evidenced hereby
shall be payable in the amounts and on the dates specified in the Securities
Exchange Agreement and, if not sooner paid in full, on the earlier of (i) June
30, 2002, and (ii) the effective date of a Joint Plan of Reorganization of
Holdings and the Company. Interest thereon shall be paid until such principal
amount is paid in full at such interest rates and at such times as are specified
in the Securities Exchange Agreement.
If any payment on this 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 an Event of Default, this
Note may, as provided in the Securities Exchange Agreement, and without demand,
notice or legal process of any kind, be declared, and immediately shall become,
due and payable.
B-7
Except as set forth in the Securities Exchange Agreement
demand, presentment, protest and notice of nonpayment and protest are hereby
waived by Company.
This Note amends and restates and is a substitute for, but is
not in payment or satisfaction of, the Series A Senior Subordinated Note dated
December 29, 2000, issued by the Company to the Holder.
[SIGNATURE ON THE FOLLOWING PAGE]
B-8
This Note has been executed, delivered and accepted at New
York, New York and shall be interpreted, governed by and construed in accordance
with, the laws of the State of New York.
CORAM, INC.
By: /s/ XXXXX XXXXXX
---------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
[Signature Page to Series A Note for Foothill Capital Corporation]
B-9
AMENDED AND RESTATED SERIES B SENIOR SUBORDINATED
CONVERTIBLE NOTE
$41,854,200.46 New York, New York
December 31, 2001
FOR VALUE RECEIVED, the undersigned, CORAM, INC., a Delaware
corporation ("Company"), hereby unconditionally PROMISES TO PAY to the order of
XXXXXXX XXXXX CREDIT PARTNERS L.P. ("Holder"), at Xxxxxxx Sachs Credit Partners
L.P., c/o Goldman, Xxxxx & Co., 00 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000,
or at such other place as the holder of this Series B Senior Subordinated
Convertible Note (the "Note") may designate from time to time in writing, in
lawful money of the United States of America and in immediately available funds,
the principal amount of $41,854,200.46 (FORTY ONE MILLION EIGHT HUNDRED FIFTY
FOUR THOUSAND TWO HUNDRED DOLLARS AND FORTY SIX CENTS), together with interest
on the unpaid principal amount of this Note outstanding from time to time from
the date hereof, at the rate provided in the Securities Exchange Agreement (as
hereinafter defined).
This Note is issued pursuant to that certain Securities
Exchange Agreement, dated as of May 6, 1998 between the Company and CORAM
HEALTHCARE CORPORATION, a Delaware corporation ("Holdings"), CERBERUS PARTNERS,
L.P., XXXXXXX XXXXX CREDIT PARTNERS L.P., and FOOTHILL CAPITAL CORPORATION, (as
amended, the "Securities Exchange Agreement"), and is entitled to the benefit of
the Note Documents provided for therein, to which reference is hereby made for a
statement of all of the terms and conditions under which the indebtedness
evidenced hereby is made. All capitalized terms, unless otherwise defined
herein, shall have the meanings ascribed to them in the Securities Exchange
Agreement.
This Note shall be convertible into shares of common stock of
Holdings in the manner and in the time set forth in the Securities Exchange
Agreement.
The principal amount of the indebtedness evidenced hereby
shall be payable in the amounts and on the dates specified in the Securities
Exchange Agreement and, if not sooner paid in full, on the earlier of (i) June
30, 2002, and (ii) the effective date of a Joint Plan of Reorganization of
Holdings and the Company. Interest thereon shall be paid until such principal
amount is paid in full at such interest rates and at such times as are specified
in the Securities Exchange Agreement.
If any payment on this 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 an Event of Default, this
Note may, as provided in the Securities Exchange Agreement, and without demand,
notice or legal process of any kind, be declared, and immediately shall become,
due and payable.
B-10
Except as set forth in the Securities Exchange Agreement,
demand, presentment, protest and notice of nonpayment and protest are hereby
waived by Company.
This Note amends and restates and is a substitute for, but is
not in payment or satisfaction of, the Series B Senior Subordinated Convertible
Note dated December 29, 2000, issued by the Company to the Holder.
[SIGNATURE ON THE FOLLOWING PAGE]
B-11
This Note has been executed, delivered and accepted at New
York, New York and shall be interpreted, governed by and construed in accordance
with, the laws of the State of New York.
CORAM, INC.
By: /s/ XXXXX XXXXXX
---------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
[Signature Page to Series B Note for Xxxxxxx Xxxxx Credit Partners L.P.]
B-12
AMENDED AND RESTATED SERIES B SENIOR SUBORDINATED CONVERTIBLE NOTE
$32,962,340.54 New York, New York
December 31, 2001
FOR VALUE RECEIVED, the undersigned, CORAM, INC., a Delaware
corporation ("Company"), hereby unconditionally PROMISES TO PAY to the order of
CERBERUS PARTNERS, L.P. ("Holder"), at Cerberus Partners, L.P., 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as the holder of
this Series B Senior Subordinated Convertible Note (the "Note") may designate
from time to time in writing, in lawful money of the United States of America
and in immediately available funds, the principal amount of $32,962,340.54
(THIRTY-TWO MILLION NINE HUNDRED SIXTY TWO THOUSAND THREE HUNDRED FORTY DOLLARS
AND FIFTY-FOUR CENTS), together with interest on the unpaid principal amount of
this Note outstanding from time to time from the date hereof, at the rate
provided in the Securities Exchange Agreement (as hereinafter defined).
This Note is issued pursuant to that certain Securities
Exchange Agreement, dated as of May 6, 1998 between the Company and CORAM
HEALTHCARE CORPORATION, a Delaware corporation ("Holdings"), CERBERUS PARTNERS,
L.P., XXXXXXX XXXXX CREDIT PARTNERS L.P., and FOOTHILL CAPITAL CORPORATION, (as
amended, the "Securities Exchange Agreement"), and is entitled to the benefit of
the Note Documents provided for therein, to which reference is hereby made for a
statement of all of the terms and conditions under which the indebtedness
evidenced hereby is made. All capitalized terms, unless otherwise defined
herein, shall have the meanings ascribed to them in the Securities Exchange
Agreement.
This Note shall be convertible into shares of common stock of
Holdings in the manner and in the time set forth in the Securities Exchange
Agreement.
The principal amount of the indebtedness evidenced hereby
shall be payable in the amounts and on the dates specified in the Securities
Exchange Agreement and, if not sooner paid in full, on the earlier of (i) June
30, 2002, and (ii) the effective date of a Joint Plan of Reorganization of
Holdings and the Company. Interest thereon shall be paid until such principal
amount is paid in full at such interest rates and at such times as are specified
in the Securities Exchange Agreement.
If any payment on this 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 an Event of Default, this
Note may, as provided in the Securities Exchange Agreement, and without demand,
notice or legal process of any kind, be declared, and immediately shall become,
due and payable.
B-13
Except as set forth in the Securities Exchange Agreement,
demand, presentment, protest and notice of nonpayment and protest are hereby
waived by Company.
This Note amends and restates and is a substitute for, but is
not in payment or satisfaction of, the Series B Senior Subordinated Convertible
Note dated December 29, 2000, issued by the Company to the Holder.
[SIGNATURE ON THE FOLLOWING PAGE]
B-14
This Note has been executed, delivered and accepted at New
York, New York and shall be interpreted, governed by and construed in accordance
with, the laws of the State of New York.
CORAM, INC.
By: /s/ XXXXX XXXXXX
---------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
[Signature Page to Series B Note for Cerberus Partners, L.P.]
B-15
AMENDED AND RESTATED SERIES B SENIOR SUBORDINATED CONVERTIBLE NOTE
$17,267,558.00 New York, New York
December 31, 2001
FOR VALUE RECEIVED, the undersigned, CORAM, INC., a Delaware
corporation ("Company"), hereby unconditionally PROMISES TO PAY to the order of
FOOTHILL CAPITAL CORPORATION ("Holder"), at Foothill Capital Corporation, 0000
Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, XX 00000, or at such other place as the holder of
this Series B Senior Subordinated Convertible Note (the "Note") may designate
from time to time in writing, in lawful money of the United States of America
and in immediately available funds, the principal amount of $17,267,558.00
(SEVENTEEN MILLION TWO HUNDRED SIXTY SEVEN THOUSAND FIVE HUNDRED FIFTY EIGHT
DOLLARS), together with interest on the unpaid principal amount of this Note
outstanding from time to time from the date hereof, at the rate provided in the
Securities Exchange Agreement (as hereinafter defined).
This Note is issued pursuant to that certain Securities
Exchange Agreement, dated as of May 6, 1998 between the Company and CORAM
HEALTHCARE CORPORATION, a Delaware corporation ("Holdings"), CERBERUS PARTNERS,
L.P., XXXXXXX XXXXX CREDIT PARTNERS L.P., and FOOTHILL CAPITAL CORPORATION, (as
amended, the "Securities Exchange Agreement"), and is entitled to the benefit of
the Note Documents provided for therein, to which reference is hereby made for a
statement of all of the terms and conditions under which the indebtedness
evidenced hereby is made. All capitalized terms, unless otherwise defined
herein, shall have the meanings ascribed to them in the Securities Exchange
Agreement.
This Note shall be convertible into shares of common stock of
Holdings in the manner and in the time set forth in the Securities Exchange
Agreement.
The principal amount of the indebtedness evidenced hereby
shall be payable in the amounts and on the dates specified in the Securities
Exchange Agreement and, if not sooner paid in full, on the earlier of (i) June
30, 2002, and (ii) the effective date of a Joint Plan of Reorganization of
Holdings and the Company. Interest thereon shall be paid until such principal
amount is paid in full at such interest rates and at such times as are specified
in the Securities Exchange Agreement.
If any payment on this 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 an Event of Default, this
Note may, as provided in the Securities Exchange Agreement, and without demand,
notice or legal process of any kind, be declared, and immediately shall become,
due and payable.
B-16
Except as set forth in the Securities Exchange Agreement,
demand, presentment, protest and notice of nonpayment and protest are hereby
waived by Company.
This Note amends and restates and is a substitute for, but is
not in payment or satisfaction of, the Series B Senior Subordinated Convertible
Note dated December 29, 2000, issued by the Company to the Holder.
[SIGNATURE ON THE FOLLOWING PAGE]
B-17
This Note has been executed, delivered and accepted at New
York, New York and shall be interpreted, governed by and construed in accordance
with, the laws of the State of New York.
CORAM, INC.
By: /s/ XXXXX XXXXXX
---------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
[Signature Page to Series B Note for Foothill Capital Corporation]
B-18
