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EXHIBIT 10.14
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NCS HEALTHCARE, INC.
AS BORROWER
THE LENDERS NAMED HEREIN
AS LENDERS
NBD BANK
NATIONAL CITY BANK
AS CO-AGENTS
AND
KEYBANK NATIONAL ASSOCIATION
AS A LENDER,
THE SWING LINE LENDER, THE LETTER OF CREDIT ISSUER
AND AS ADMINISTRATIVE AGENT
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AMENDMENT NO. 1
DATED AS OF
JULY 13, 1998
TO
CREDIT AGREEMENT
DATED AS OF
JUNE 1, 1998
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AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT, dated as of July 13, 1998
("THIS AMENDMENT"), among the following: (i) NCS HEALTHCARE, INC., a Delaware
corporation (herein, together with its successors and assigns, the "BORROWER");
(ii) the Lenders party hereto; (iii) NBD BANK and NATIONAL CITY BANK, as Lenders
and as Co-Agents; and (iv) KEYBANK NATIONAL ASSOCIATION, a national banking
association, as a Lender, the Swing Line Lender, the Letter of Credit Issuer,
and as the Administrative Agent under the Credit Agreement:
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders named therein, the Swing Line Lender and
the Administrative Agent entered into the Credit Agreement, dated as of June 1,
1998 (as in effect immediately prior to the effective date of this Amendment,
the "CREDIT AGREEMENT"; with the terms defined therein, or the definitions of
which are incorporated therein, being used herein as so defined).
(2) The Borrower, the Lenders party hereto and the Administrative Agent
desire to increase the Total General Revolving Commitment under the Credit
Agreement from $150,000,000 to $245,000,000, and to amend certain of the other
terms of the Credit Agreement, all as more fully set forth below.
Contemporaneously herewith, the Borrower is terminating the Bridge Facility
Agreement and prepaying in full all loans outstanding thereunder.
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. AMENDMENTS.
1.1. COMMITMENTS. Effective on July 13, 1998, the Total General
Revolving Commitment under the Credit Agreement is increased from $150,000,000
to $245,000,000 and Annex I to the Credit Agreement is amended and restated to
read in its entirety as set forth in Annex I to this Amendment.
1.2. OTHER AMENDMENTS. (a) The phrase ", the Security Documents" is
added to the definition of the term Credit Documents in section 1.1 of the
Credit Agreement after the phrase "the Subsidiary Guaranty" which is contained
in such definition.
(b) There being no possibility at this time of any termination of the
Total Commitment pursuant to section 4.3(a) of the Credit Agreement, such
section 4.3(a) is deleted from the Credit Agreement.
(c) A new section 8.14 is added to the Credit Agreement, reading as
follows:
8.14. CERTIFIED RESOLUTIONS, ETC. In light of the increase in
the Total General Revolving Commitment hereunder from $150,000,000 to
$245,000,000, pursuant to Amendment No. 1 to Credit Agreement, dated as
of July 13, 1998, and the termination of the entire $50,000,000
principal amount of the Bridge Facility Agreement, both of which became
effective July 13, 1998, the Borrower will, prior to the earlier of (x)
July 31, 1998, or (y) any Credit Event which would result in the sum of
the Letter of Credit Outstandings and the aggregate Loans
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outstanding hereunder exceeding $200,000,000, deliver to the
Administrative Agent, in sufficient quantities for the Lenders, (i)
certified resolutions of the Board of Directors of the Borrower
authorizing the increase of the Total General Revolving Commitment
hereunder from $150,000,000 to $245,000,000, and (ii) an opinion of
Calfee, Halter & Griswold LLP, special counsel to the Borrower,
addressed to the Administrative Agent and the Lenders, as to the due
authorization, execution, delivery, binding effect and enforceability
of such Amendment No. 1 and as to such other matters incident to such
Amendment No. 1 as the Administrative Agent may reasonably request.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants as follows: (a) this Amendment has
been duly authorized by all necessary corporate action on the part of the
Borrower, has been duly executed and delivered by a duly authorized officer of
the Borrower, and constitutes the valid and binding agreement of the Borrower,
enforceable against the Borrower in accordance with its terms; (b) the
representations and warranties of the Credit Parties contained in the Credit
Agreement or in the other Credit Documents are true and correct in all material
respects on and as of the date hereof as though made on and as of the date
hereof, except to the extent that such representations and warranties expressly
relate to an earlier specified date, in which case such representations and
warranties are hereby reaffirmed as true and correct in all material respects as
of the date when made; (c) no condition or event has occurred or exists which
constitutes or which, after notice or lapse of time or both, would constitute an
Event of Default; and (d) the Borrower is in full compliance with all covenants
and agreements contained in the Credit Agreement, as amended hereby, and the
other Credit Documents to which it is a party.
SECTION 3. RATIFICATIONS.
Except as expressly modified and superseded by this Amendment, the
terms and provisions of the Credit Agreement are ratified and confirmed and
shall continue in full force and effect.
SECTION 4. BINDING EFFECT.
This Amendment shall become effective on July 13, 1998 if the following
conditions shall have been satisfied on and as of such date:
(a) this Amendment shall have been executed by the Borrower,
the Lenders and the Administrative Agent, and counterparts hereof as so
executed shall have been delivered to the Administrative Agent;
(b) the Acknowledgment and Consent appended hereto shall have
been executed by the Credit Parties named therein, and counterparts
thereof as so executed shall have been delivered to the Administrative
Agent;
(c) the Administrative Agent shall have been notified by each
of the Lenders that such Lenders have executed this Amendment (which
notification may be by facsimile or other written confirmation of such
execution);
and thereafter this Amendment shall be binding upon and inure to the benefit of
the Borrower, the Administrative Agent, and each Lender and their respective
permitted successors and assigns. After this Amendment becomes effective, the
Administrative Agent will promptly furnish a copy of this
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Amendment to each Lender and the Borrower.
SECTION 5. MISCELLANEOUS.
5.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made in this Amendment shall survive the execution and delivery
of this Amendment, and no investigation by the Administrative Agent or any
Lender or any subsequent Loan or other Credit Event shall affect the
representations and warranties or the right of the Administrative Agent or any
Lender to rely upon them.
5.2. REFERENCE TO CREDIT AGREEMENT. The Credit Agreement and any and
all other agreements, instruments or documentation now or hereafter executed and
delivered pursuant to the terms of the Credit Agreement as amended hereby, are
hereby amended so that any reference therein to the Credit Agreement shall mean
a reference to the Credit Agreement as amended hereby.
5.3. EXPENSES. As provided in the Credit Agreement, but without
limiting any terms or provisions thereof, the Borrower shall pay on demand all
reasonable costs and expenses incurred by the Administrative Agent in connection
with the preparation, negotiation, and execution of this Amendment, including
without limitation the reasonable costs and fees of the Administrative Agent's
special legal counsel, regardless of whether this Amendment becomes effective in
accordance with the terms hereof, and all reasonable costs and expenses incurred
by the Administrative Agent or any Lender in connection with the enforcement or
preservation of any rights under the Credit Agreement, as amended hereby.
5.4. SEVERABILITY. Any term or provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the term or provision so held to be invalid or unenforceable.
5.5. APPLICABLE LAW. This Amendment shall be governed by and construed
in accordance with the laws of the State of Ohio.
5.6. HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
5.7. ENTIRE AGREEMENT. This Amendment is specifically limited to the
matters expressly set forth herein. This Amendment and all other instruments,
agreements and documentation executed and delivered in connection with this
Amendment embody the final, entire agreement among the parties hereto with
respect to the subject matter hereof and supersede any and all prior
commitments, agreements, representations and understandings, whether written or
oral, relating to the matters covered by this Amendment, and may not be
contradicted or varied by evidence of prior, contemporaneous or subsequent oral
agreements or discussions of the parties hereto. There are no oral agreements
among the parties hereto relating to the subject matter hereof or any other
subject matter relating to the Credit Agreement.
5.8. COUNTERPARTS. This Amendment may be executed by the parties hereto
separately in one or more counterparts, each of which when so executed shall be
deemed to be an original, but all of which when taken together shall constitute
one and the same agreement.
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
as of the date first above written.
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NCS HEALTHCARE, INC. KEYBANK NATIONAL ASSOCIATION,
INDIVIDUALLY AS A LENDER, THE SWING LINE
LENDER, THE LETTER OF CREDIT ISSUER, AND
BY:____________________________ AS ADMINISTRATIVE AGENT
CHIEF FINANCIAL OFFICER
BY:____________________________
VICE PRESIDENT
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NBD BANK, NATIONAL CITY BANK,
AS A LENDER AND AS CO-AGENT AS A LENDER AND AS CO-AGENT
BY:____________________________ BY:____________________________
FIRST VICE PRESIDENT VICE PRESIDENT
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BANK ONE, NA FIRST UNION NATIONAL BANK
BY:____________________________ BY:____________________________
VICE PRESIDENT VICE PRESIDENT
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COMERICA BANK MELLON BANK, N. A.
BY:____________________________ BY:____________________________
VICE PRESIDENT VICE PRESIDENT
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HARRIS TRUST AND SAVINGS BANK STAR BANK, N. A.
BY:____________________________ BY:____________________________
VICE PRESIDENT VICE PRESIDENT
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AMSOUTH BANK BANK HAPOALIM B. M.,
CHICAGO BRANCH
BY:____________________________
VICE PRESIDENT BY:____________________________
VICE PRESIDENT
AND:__________________________
TITLE:
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