EXHIBIT 10.7
AMENDMENT
THIS AMENDMENT ("Amendment") is made and entered into as of this 12th
day of May, 2003, by and between X. Xxxxx Medical Inc., successor in interest to
XxXxx, Inc. ("X.Xxxxx") and Xxxxx Healthcare Corporation, as debtor ("Coram").
BACKGROUND
X. X.Xxxxx and Xxxxx Healthcare Corporation entered into an agreement
for the purchase and sale of certain disposables and IV products dated November
17, 1995, which has been amended by various letter addendums and amendments
dated, February 28, 1996, February 29, 1996, June 3, 1996, September 30, 1996,
November 8, 1996, December 10, 1996, February 3, 1997, May 2, 1997, December 18,
1997, January 12, 1998, February 2, 1998, February 16, 1998, March 17, 1998,
March 23, 1998, June 15, 1998, July 15, 1998, November 18, 1998, October 3,
1999, March 29, 2000, September 29, 2000, November 13, 2000, April 16, 2001, and
January 9, 2002 (collectively, the "Agreement"), and
X. X.Xxxxx and Coram desire to amend the Agreement as set forth herein.
NOW THEREFORE, intending to be legally bound hereby, the parties agree
as follows:
AGREEMENT
1. Background Provisions; Defined Terms. The Background paragraphs set
forth above are hereby incorporated in this Amendment as if fully set forth
herein.
2. Pricing. Effective as of ten (10) business days after the Bankruptcy
Court issues an Order approving this Amendment and the assumption of the
Agreement by Coram, the prices for the products shall be as set forth on
Schedule A hereto. Schedule A reflects an updated list of all of the products
under the Agreement. These prices shall remain firm until December 31, 2004. On
January 1, 2005, and on each January 1st during the term of the Agreement,
X.Xxxxx shall have the right to increase prices by an amount equal to the
greater of 3% or the percentage increase in the Consumer Price Index for all
Urban Consumers for Medical Care Commodities for the twelve month period ending
three months prior to such anniversary date.
3. Bankruptcy Court Approval and Assumption of Agreement. Coram hereby
agrees to seek Bankruptcy Court approval for the assumption of the Agreement and
approval of a Continuing Guaranty and Suretyship dated of even date herewith
(the "Guaranty"), pursuant to which Coram and Coram, Inc. jointly and severally
guaranty and become surety for the obligations of Curaflex Health Services, Inc.
("Curaflex") under a lease agreement of even date herewith between X.Xxxxx and
Curaflex for 1000 Vista(R) Basic IV Pumps. X.Xxxxx'x obligations under this
Amendment and the Guaranty are contingent upon X.Xxxxx'x satisfaction with the
terms of the Court's Order.
4. Sale of Assets. If during or after confirmation of a plan of
reorganization, a purchaser purchases substantially all of the assets of Coram,
Coram will use its best efforts, subject to X.Xxxxx'x consent, to have such
purchaser assume the obligations of the Agreement. If the Agreement is not
assumed by such purchaser, then Coram agrees that X.Xxxxx will have an
administrative claim to be paid out of the proceeds of such sale, and if the
proceeds are inadequate, from the general assets of Coram. Coram hereby agrees
that the automatic stay under 11 U.S.C. Section 362 shall not be applicable to
the enforcement by X.Xxxxx of any of its rights under the terms of the Agreement
or applicable law, and the Order approving this Amendment will so provide.
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5. Default. The parties agree that any default under the Agreement
shall be a default under the Guaranty, and any default under the Guaranty shall
be a default under the Agreement and X.Xxxxx may exercise its rights and
remedies under one or both agreements.
6. Incorporation; Ratification. Other than as specifically set forth in
this Amendment, the terms and conditions of the Agreement shall remain in full
force and effect without modification, and are hereby ratified and affirmed.
This Amendment is made a part of the Agreement and the Agreement is hereby
incorporated herein. All references to the Agreement, shall mean the Agreement
as modified by this Amendment.
7. Counterparts and Facsimile Signatures. This Amendment may be
executed in one or more counterparts, all of which shall constitute one original
agreement for all purposes. Any and all counterpart signatures may be executed
by facsimile or electronic means and any signature so executed shall be deemed
an original signature of the executing party.
IN WITNESS WHEREOF, the parties have executed and delivered this
Amendment as of the day and year first above written.
X. XXXXX MEDICAL INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President Sales - OPM Division
CORAM HEALTHCARE CORPORATION, in its
capacity as debtor
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Senior Vice President, Materials
Management
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Exhibit A
PRICE LIST
Redacted
