AMENDMENT NO. 1 TO CREDIT AGREEMENT
This Amendment No. 1 (the "Amendment") is entered into as of September 3,
1999 by and among OMNICARE, INC., a Delaware corporation (the "Borrower"), the
undersigned lenders (collectively, the "Lenders") and 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.
RECITALS:
WHEREAS, the Borrower, the Lenders and the Agent have entered into that
certain 364-Day Credit Agreement dated as of December 21, 1998 (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 3 below, the Credit Agreement is
hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended by amending
the definition of "Commitment" in its entirety to read as follows:
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans not exceeding the amount set forth opposite such Lender's name
on Schedule IV hereto or as set forth in any Notice of Assignment relating
to any assignment that has become effective pursuant to Section 12.3.2, as
such amount may be modified from time to time pursuant to the terms hereof.
(b) Section 1.1 of the Credit Agreement is hereby amended by deleting
from the definition of "Revolving Credit Termination Date" the date
"December 20, 1999" and substituting therefor the date "September 2, 2000".
(c) Section 1.1 of the Credit Agreement is hereby amended by deleting
from the definition of "Facility Termination Date" the date "December 20,
2000" and substituting therefor the date "September 2, 2001".
(d) Section 2.2 of the Credit Agreement is hereby amended by deleting
from the third sentence thereof the dates "March 20, 2000, June 20, 2000,
September 20, 2000" and substituting therefor the dates "December 2, 2000,
March 2, 2001, June 2, 2001".
(e) The Credit Agreement is amended by adding thereto a new Schedule IV
in the form attached hereto.
3. Exiting 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:
Banca CRT, S.p.A.
Bank Hapoalim, B.M.
Bankers Trust Company
National City Bank of Kentucky
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 only those Lenders whose
Commitments are to be increased pursuant to this Amendment (the "Increasing
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 Increasing Lenders and the repayment
of the Loans of the Exiting Lenders, the outstanding Loans on the Effective Date
shall be held by the Lenders (other than the Exiting Lenders) pro rata in
accordance with their respective Commitments after giving effect to this
Amendment. The Agent shall give each Increasing Lender reasonable notice of the
amount of its respective Loan to be made on the Effective Date, and each
Increasing 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 Increasing Lenders all amounts owing to such Increasing
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 the
respective Increasing Lenders.
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; and
(b) the Reaffirmation attached hereto duly executed on behalf of each of
the Initial Guarantors and Supplemental Guarantors.
5. Representations and Warranties of the Borrower. The Borrower represents
and warrants to the Lenders that, as of the Effective Date:
(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 3 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 (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.
IN WITNESS WHEREOF, the Borrower, the Agent and the Lenders have executed
this Amendment No. 1 as of the date first above written.
OMNICARE, INC.
By:
---------------------------------
Name: David W. Froesel, Jr.
Title: Chief Financial Officer
THE FIRST NATIONAL BANK OF CHICAGO,
as a Lender and as Administrative Agent
By:
---------------------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH, as a Lender
and as
Co-Documentation Agent
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
BANK OF AMERICA, N.A., f/k/a NationsBank, N.A.
as a Lender and as Co-Documentation Agent
By:
---------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
as a Lender
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
FLEET NATIONAL BANK,
as a Lender
By:
---------------------------------
Name:
Title:
CITICORP USA, INC.
as a Lender
By:
---------------------------------
Name:
Title:
COMERICA BANK,
as a Lender
By:
---------------------------------
Name:
Title:
SUNTRUST BANK, NASHVILLE, N.A.,
as a Lender
By:
---------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS,
as a Lender
By:
---------------------------------
Name:
Title:
FIRSTAR BANK, N.A. (as successor to Star Bank),
as a Lender
By:
---------------------------------
Name:
Title:
FIFTH THIRD BANK,
as a Lender
By:
---------------------------------
Name:
Title:
BW CAPITAL MARKETS, INC.,
as a Lender
By:
---------------------------------
Name:
Title:
HARRIS TRUST AND SAVINGS BANK,
as a Lender
By:
---------------------------------
Name:
Title:
EXITING LENDERS:
UNICREDITO ITALIANO (as successor to
Banca CRT, S.p.A.), as an Exiting Lender
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
BANK HAPOALIM, B.M.,
as an Exiting Lender
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as an Exiting Lender
By:
---------------------------------
Name:
Title:
NATIONAL CITY BANK OF KENTUCKY,
as an Exiting Lender
By:
---------------------------------
Name:
Title:
SCHEDULE IV
COMMITMENTS
Lender Commitment
------ ----------
The First National Bank of Chicago $ 45,000,000
Bank of America, N.A. 65,000,000
Deutsche Bank AG New York Branch and/or
Cayman Islands Branch 65,000,000
Citicorp USA, Inc. 50,000,000
Suntrust Bank, Nashville, N.A. 40,000,000
Banque Nationale de Paris 25,000,000
Comerica Bank 25,000,000
Credit Suisse First Boston 25,000,000
Fleet National Bank 25,000,000
Firstar Bank, N.A. 15,000,000
BW Capital Markets, Inc. 10,000,000
Harris Trust and Savings Bank 5,000,000
Fifth Third Bank 5,000,000
------------
Total $400,000,000
REAFFIRMATION
Each of the undersigned hereby acknowledges receipt of a copy
of the foregoing Amendment No. 1 to the 364-Day Credit Agreement dated as of
December 21, 1998 by and among Omnicare, Inc., a Delaware corporation (the
"Borrower"), the lenders from time to time parties thereto (collectively, the
"Lenders") and 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. 1 is dated as of September 3, 1999 (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 so
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 REGIONAL HOLDINGS, INC.
AMC TENNESSEE, INC.
AMERICAN MEDSERVE CORPORATION
ANDERSON MEDICAL SERVICES, INC.
APEX LONG TERM CARE PHARMACY, INC.
BEEBER PHARMACIES, 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.
CMCP ACQUISITION LLC
CMD ACQUISITION CORP.
COMPSCRIPT, INC.
COMPSCRIPT-BOCA, INC.
COMPSCRIPT-MOBILE, INC.
CONSULTING AND PHARMACEUTICAL
SERVICES, INC.
CTLP ACQUISITION CORP.
D&R PHARMACEUTICAL SERVICES, INC.
DATASCRIPT CORP.
DIXON PHARMACY, INC.
DOWNEAST PHARMACY, INC.
DYNATRAN COMPUTER SYSTEMS, INC.
EHIS ACQUISITION CORP.
ELECTRA ACQUISITION CORP.
ENLOE DRUGS, INC.
EVERGREEN PHARMACEUTICAL, INC.
EVERGREEN PHARMACEUTICAL EAST, INC.
EVERGREEN PHARMACEUTICAL SUPPLY, INC.
EVERGREEN SPOKANE, INC.
FREED'S PHARMACY, INC.
GATTI LTC SERVICES, INC.
HCC MEDICAL SUPPLY, INC.
HMIS, INC.
HOME CARE PHARMACY, INC.
HOME PHARMACY SERVICES, INC.
HOWARD'S PHARMACY, INC.
HYTREE PHARMACY, INC.
I.V. SERVICES OF OKLAHOMA, INC.
INTERLOCK PHARMACY SYSTEMS, INC.
JHC ACQUISITION CORP.
KONSULT, INC.
LANGSAM HEALTH SERVICES, INC.
LANGSAM MEDICAL PRODUCTS, INC.
LAWRENCE 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 COMMUNICATIONS SOFTWARE, INC.
MEDICAL SERVICES CONSORTIUM, INC.
MOSI ACQUISITION CORP.
MSD ACQUISITION CORP.
NIHAN & MARTIN, INC.
NIV ACQUISITION CORP.
NORTH SHORE PHARMACY SERVICES, INC.
NORTHWEST PHARMACEUTICAL, INC.
OCR-RA ACQUISITION CORP.
OKLAHOMA CONSULTING SERVICES, INC.
OMNICARE PHARMACY & SUPPLY, INC.
PBM-PLUS, INC.
PHARMACON CORP.
PHARMACY ACQUISITION, INC.
PHARMACY ASSOCIATES OF GLENS FALLS, INC.
PHARMED HOLDINGS, INC.
PIP ACQUISITION CORP.
POMPTON NURSING HOME SUPPLIERS, INC.
PRN PHARMACEUTICAL SERVICES, INC.
PROFESSIONAL PHARMACY GROUP, INC.
ROBBY ACQUISITION CORP.
ROESCHEN'S HEALTHCARE CORP.
RDSI ACQUISITION CORP.
SA ACQUISITION CORP.
SALTD ACQUISITION CORP.
SC ACQUISITION CORP.
SHORE PHARMACEUTICAL PROVIDERS, INC.
SPECIALIZED PATIENT CARE SERVICES, INC.
SPECIALIZED PHARMACY SERVICES, INC.
SCP ACQUISITION CORP.
SRMS ACQUISITION LLC
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.
WEBER MEDICAL SYSTEMS, INC.
WESTHAVEN SERVICES CO.
WEST-VAL CARE, INC.
WILLIAMSON DRUG COMPANY, INCORPORATED
WINSLOW'S PHARMACY
By: ____________________________________
Bradley S. Abbott,
Treasurer
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
BACH'S PHARMACY SERVICES, LLC
LCPS ACQUISITION, LLC
LIFE CARE OF COLORADO, LLC
LIFE CARE OF MASSACHUSETTS, LLC
LIFE CARE OF TENNESSEE, LLC
OCR SERVICES CORPORATION
OMNICARE PENNSYLVANIA MED SUPPLY, LLC
OMNICARE PHARMACIES OF PENNSYLVANIA
EAST, LLC
OMNICARE PHARMACY OF MAINE LLC
PCI ACQUISITION, LLC
PHARMACY CONSULTANTS, INC.
PHARM-CORP OF MAINE LLC
SYNERGY HEALTHCARE SERVICES, LLC
By: __________________________________
Catherine I. Greany,
Secretary
HOSPICE OF THE HEARTLAND, LLC
By: HOSPICE ACQUISITION ONE CORP.,
Member
By: ___________________________________________
Bradley S. Abbott,
Treasurer
and By: HOSPICE ACQUISITION TWO CORP.,
Member
By: ___________________________________________
Bradley S. Abbott,
Treasurer
HOSPICE CARE OF OKLAHOMA, LLC
By: HOSPICE ACQUISITION ONE CORP.,
Member
By: ___________________________________________
Bradley S. Abbott,
Treasurer
and By: HOSPICE ACQUISITION TWO CORP.,
Member
By: ___________________________________________
Bradley S. Abbott,
Treasurer
IBAH, INC.
IBAH PHARMACEUTICS SERVICES, INC.
By: ___________________________________________
John Imperato,
Vice President
COROMED, INC.
By: ___________________________________________
Dale Evans,
President
OMNICARE MANAGEMENT COMPANY
By: ___________________________________________
David W. Froesel, Jr.,
Treasurer