EXHIBIT 3B
AMENDMENT NO. 4
IN RESPECT OF THE
SECURITIES EXCHANGE AGREEMENT
AMONG
CORAM, INC.
CORAM HEALTHCARE CORPORATION
AND
CERBERUS PARTNERS, L.P.
GOLDMAN SACHS CREDIT PARTNERS L.P.
FOOTHILL CAPITAL CORPORATION
AS NOTEHOLDERS
DATED: DECEMBER 29, 2000
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Amendment No. 4 (this "Agreement"), dated as of December 29, 2000, 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"), GOLDMAN SACHS
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").
W I T N E S S E T H :
WHEREAS, the Original Noteholders, the Company and Holdings entered
into the Securities Exchange Agreement, pursuant to which the Original
Noteholders received, among other things, Series A Notes and Series B Notes, as
the case may be, in exchange for the Original Noteholders' interests in the
Subordinated Rollover Notes and the Warrants; and
WHEREAS, as of the date hereof, the Original Noteholders own in the
aggregate 100% of the outstanding principal amount of the Series A Notes and
Series B Notes; and
WHEREAS, pursuant to an Exchange Agreement, dated as of the date
hereof, among the Company, Holdings and the Noteholders (the "Exchange
Agreement"), the Noteholders have agreed to exchange (the "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
shares of Preferred Stock (as defined in the Exchange Agreement) of the Company;
and
WHEREAS, following the Exchange, the Noteholders will hold $61,207,938
aggregate principal amount of Series A Notes and $92,084,099 aggregate principal
amount of Series B Notes (collectively, the "Remaining Notes"); and
WHEREAS, as further consideration for the Exchange, the Company,
Holdings and the Noteholders have agreed to amend the interest rate and maturity
of the Remaining 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
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the Securities Exchange Agreement is hereby amended by deleting the existing
definitions of "Applicable Series A Rate," "Applicable Series B Rate," "Series A
Maturity Date" and "Series B Maturity Date" and replacing them with the
following:
"Applicable Series A Rate" shall mean (i) from the Effective Date
to the Amendment Date, 9-7/8% per annum, (ii) from the Amendment Date
to November 15, 1999, 11-1/2% per annum, (iii) from November 15, 1999
to the Interest Restart Date, 0.00% per annum, (iv) from the Interest
Restart Date to December 29, 2000, 11-1/2% per annum and (v)
thereafter, 9.00% per annum.
"Applicable Series B Rate" shall mean (i) from the Effective Date
to November 15, 1999, 8.00% per annum, (ii) from November 15, 1999 to
the Interest Restart Date, 0.00% per annum, (iii) from the Interest
Restart Date to December 29, 2000, 8.00% per annum and (v) thereafter,
9.00% per annum.
"Series A Maturity Date" shall mean June 30, 2001.
"Series B Maturity Date" shall mean June 30, 2001.
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 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:
(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;
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(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 Lenders, as lenders party to the Senior Loan
Agreement, to this Agreement, the Exchange Agreement and the transactions
contemplated thereby;
(f) the consent of Madeleine L.L.C., an affiliate of Cerberus, to this
Agreement, the Exchange Agreement and the transactions contemplated
thereby; and
(g) the conditions precedent set forth in Section 6 of the 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 now have or may have in the future under or in
connection with the Securities Exchange Agreement 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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[Signatures on following page]
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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:
---------------------------------
Name:
Title:
CORAM HEALTHCARE CORPORATION
By:
---------------------------------
Name:
Title:
CERBERUS PARTNERS, L.P.
By:
---------------------------------
Name:
Title:
GOLDMAN SACHS CREDIT PARTNERS L.P.
By:
---------------------------------
Name:
Title:
FOOTHILL CAPITAL CORPORATION
By:
---------------------------------
Name:
Title:
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EXHIBIT A
CONSENT
Dated as of December 29, 2000
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:
---------------------------------
Name:
Title:
FOR EACH OF THE SUBSIDIARY
GUARANTORS LISTED ON ANNEX A
HERETO
By:
---------------------------------
Name:
Title:
c/o Coram Healthcare Corporation
1125 Seventeenth Street, Suite 1500
Denver, CO 80202
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ANNEX A
Subsidiaries
Coram International Holdings Ltd.
Coram Healthcare Limited
Coram Physician Services, Inc.
Fairfax Hematology Oncology Associates, Inc.
Healthinfusion, Inc.
H.M.S.S., Inc.
Coram Homecare of Texas, Inc.
Infusion Affiliates of Dallas, Inc.
Medisys, Inc.
Coram Homecare of Illinois, Inc.
T2 Medical, Inc.
Columbia Home Therapeutics, Inc.
Coram Healthcare Corporation of Alabama
Coram Healthcare Corporation of Colorado
Coram Healthcare Corporation of Connecticut
Coram Healthcare Corporation of Delaware
Coram Healthcare Corporation of Florida
Coram Healthcare Corporation of Greater D.C.
Coram Healthcare Corporation of Greater New York
Coram Healthcare Corporation of Illinois
Coram Healthcare Corporation of Indiana
Coram Healthcare Corporation of Iowa
Coram Healthcare Corporation of Kansas
Coram Healthcare Corporation of Kentucky
Coram Healthcare Corporation of Louisiana
Coram Healthcare Corporation of Michigan
Coram Healthcare Corporation of Minnesota
Coram Healthcare Corporation of Missouri
Coram Healthcare Corporation of Mississippi
Coram Healthcare Corporation of Nebraska
Coram Healthcare Corporation of Nevada
Coram Healthcare Corporation of New Hampshire
Coram Healthcare Corporation of New Jersey
Coram Healthcare Corporation of New Mexico
Coram Healthcare Corporation of North Carolina
Coram Healthcare Corporation of Northern California
Coram Healthcare Corporation of Ohio
Coram Healthcare Corporation of Oklahoma
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Coram Healthcare Corporation of Oregon
Coram Healthcare Corporation of Pennsylvania
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 Healthcare Corporation of Tennessee
Coram Healthcare Corporation of Texas
Coram Healthcare Corporation of Virginia
Coram Healthcare Corporation of Washington
Coram Healthcare Corporation of West Virginia
Coram Healthcare Corporation of Wisconsin
Coram Homecare of Arizona, Inc.
Coram Homecare of Kansas, Inc.
Coram Homecare of Michigan, Inc.
Coram Homecare of Minnesota, Inc.
Coram Homecare of Nebraska, Inc.
Coram Homecare of Northern California, Inc.
Coram Homecare of Ohio, Inc.
Coram Homecare of South Carolina, Inc.
Coram Homecare of South Carolina, L.L.C.
Coram Homecare of Virginia, Inc.
Coram Homecare of Wisconsin, Inc.
Coram Management of Hawaii, Inc.
Coram Service Corporation
Curaflex Health Services, Inc.
Caremark Pharmacy Services, Inc.
Comprehensive Pharmacy Home IV Services, Inc.
Coram Alternative Site Services, Inc.
Coram Healthcare Corporation of Massachusetts
Clinical Homecare Corporation
Coram Healthcare Corporation of New York
Coram Healthcare Corporation of North Texas
Coram Healthcare Corporation of Utah
Coram Healthcare of Wyoming, L.L.C.
Stratogen of Rhode Island, Inc.
Dallas Home Therapeutics, Inc.
Extendacare Health Systems, Inc.
Intracare Holdings Corporation
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