Amendment No. 4 to Securities Exchange Agreement among Coram, Inc., Coram Healthcare Corporation, and Noteholders

Summary

This agreement is an amendment to a prior Securities Exchange Agreement between Coram, Inc., Coram Healthcare Corporation, and the noteholders Cerberus Partners, L.P., Goldman Sachs Credit Partners L.P., and Foothill Capital Corporation. It updates the interest rates and maturity dates for certain notes, and documents the exchange of notes for preferred stock. The amendment is effective only if specific conditions are met, including execution by all parties and required consents. All other terms of the original agreement remain in effect.

EX-10.1 3 a2044476zex-10_1.txt EXHIBIT 10.1 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 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 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; 2 (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. 3 [Signatures on following page] 4 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/ SCOTT R. DANITZ --------------------------------- Name: Scott R. Danitz Title: Vice President and Treasurer CORAM HEALTHCARE CORPORATION By: /S/ SCOTT R. DANITZ --------------------------------- Name: Scott R. Danitz Title: Senior Vice President, Finance and Chief Accounting Officer CERBERUS PARTNERS, L.P. By: /S/ MARK NEPORENT --------------------------------- Name: Mark Neporent Title: Chief Operating Officer GOLDMAN SACHS CREDIT PARTNERS L.P. By: /S/ DAN ALLEN --------------------------------- Name: Dan Allen Title: FOOTHILL CAPITAL CORPORATION By: /S/ ED STERNS --------------------------------- Name: Ed Sterns Title: Senior Vice President 5 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: /S/ SCOTT R. DANITZ --------------------------------- Name: Scott R. Danitz Title: Senior Vice President, Finance and Chief Accounting Officer FOR EACH OF THE SUBSIDIARY GUARANTORS LISTED ON ANNEX A HERETO By: /S/ SCOTT R. DANITZ ---------------------------------- Name: Scott R. Danitz Title: Vice President and Treasurer c/o Coram Healthcare Corporation 1125 Seventeenth Street, Suite 1500 Denver, CO 80202 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 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 2