EXHIBIT 99.3
AMENDMENT NO. 6 TO SECURITIES EXCHANGE AGREEMENT
AMENDMENT NO. 6 (this "Agreement"), dated as of December 31, 2002,
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
forgave $11,610,542 of accrued but unpaid interest on the Series A Notes and the
Series B Notes for their pro rata share of 905 shares of the Series A Preferred
Stock, $0.001 par value per share of the Company (the "Series A Preferred
Stock");
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, 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 exchanged (the "December 2001 Exchange")
approximately $21,000,000 aggregate principal amount of Series A Notes and
forgave $1,900,500 of accrued but unpaid interest on the Series A Notes and on
the Series B Notes for their pro rata share of 189.5705 shares of the Series A
Preferred Stock;
WHEREAS, following the December 2001 Exchange, the Noteholders
held $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 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;
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WHEREAS, pursuant to an Exchange Agreement, dated as of December
31, 2002, by and among the Company and the Noteholders (the "December 2002
Exchange Agreement"), the Noteholders have agreed to exchange (the "December
2002 Exchange") an additional $40,207,938 aggregate principal amount of Series A
Notes, which constitutes all of the outstanding amount of the Series A Notes,
and $83,084,099 aggregate principal amount of Series B Notes, and $23,878,717 of
accrued but unpaid interest on the Series A Notes and the Series B Notes for
their pro rata share of 1,218.28079 shares of the December 2002 Preferred Stock
(as defined in the December 2002 Exchange Agreement);
WHEREAS, following the December 2002 Exchange, the Noteholders
will hold $9,000,000 aggregate principal amount of Series B Notes (the "December
2002 Notes");
WHEREAS, as further consideration for the December 2002 Exchange,
the Company, Holdings and the Noteholders have agreed to amend the maturity of
the December 2002 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" and amending the definition of
"Series B Maturity Date" and replacing it with the following:
"Series B Maturity Date" shall mean the earlier of (i) June 30,
2003, and (ii) the effective date of a Joint Plan of Reorganization of Holdings
and the Company.
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 and the Amended and Restated Series B Senior Subordinated
Convertible Notes (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.
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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:
(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 an Amended and Restated
Series B Senior Subordinated Convertible Note to each of the
Noteholders; and
(c) the conditions precedent set forth in Section 6 of the
December 2002 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.
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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 X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Senior Vice President, Chief Financial
Officer & Treasurer
CORAM HEALTHCARE CORPORATION
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Senior Vice President, Chief Financial
Officer & Treasurer
CERBERUS PARTNERS, L.P.
By: Cerberus Associates, LLC
Its: General Partner
By: /s/ XXXX X. NEPORENT
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Name: Xxxx X. Neporent
Title: Managing Director
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By: /s/ XXXXXX XXXXXX
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Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
FOOTHILL CAPITAL CORPORATION
By: /s/ M. E. XXXXXXX
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Name: M. E. Xxxxxxx
Title: Sr. VP
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