Filed by Bowne Pure Compliance





Exhibit 10.70




SIXTH AMENDMENT TO THIRD AMENDED AND RESTATED 

REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT




THIS SIXTH AMENDMENT TO THIRD AMENDED AND RESTATED REVOLVING CREDIT, TERM LOAN AND SECURITY
AGREEMENT (this “Amendment”) is made and entered into as of May 14, 2008, by and among each of
UNITED STATES PHARMACEUTICAL GROUP, L.L.C. d/b/a NATIONSHEALTH, a Delaware limited liability
company (“USPG”), NATIONSHEALTH HOLDINGS, L.L.C., a Florida limited liability company (“NHH”),
NATIONSHEALTH, INC., a Delaware corporation (“NationsHealth”), and DIABETES CARE AND EDUCATION,
INC., a South Carolina corporation (“Diabetes Care” and together with USPG, NHH and NationsHealth,
each individually a “Borrower”, and collectively “Borrowers”), and CAPITALSOURCE FINANCE LLC, a
Delaware limited liability company (the “Lender”).



RECITALS




WHEREAS, Lender and Borrower entered into that certain Third Amended and Restated Revolving
Credit, Term Loan and Security Agreement dated as of April 11, 2007, as amended by that certain
First Amendment to Third Amended and Restated Revolving Credit, Term Loan and Security Agreement
dated as of August 29, 2007, as further amended by that certain Joinder Agreement and Second
Amendment to Third Amended and Restated Revolving Credit, Term Loan and Security Agreement dated as
of September 4, 2007, as further amended by that certain Waiver and Third Amendment to Third
Amended and Restated Revolving Credit, Term Loan and Security Agreement dated November 13, 2007, as
further amended by that certain Fourth Amendment to Third Amended and Restated Revolving Credit,
Term Loan and Security Agreement dated February 1, 2008, as further amended by that certain Fifth
Amendment to Third Amended and Restated Revolving Credit, Term Loan and Security Agreement dated
March 27, 2008 (as it may be further amended, restated, replaced, supplemented or otherwise
modified from time to time, the “Loan Agreement”) whereby Lender agreed to make loans, advances and
other extensions of credit to Borrower thereunder; and



WHEREAS, Borrower requested and Lender has agreed to amend certain provisions of the Loan
Agreement upon the terms and subject to the conditions set forth herein.



NOW, THEREFORE, in consideration of the foregoing, the terms and conditions, premises and
other mutual covenants set forth in this Amendment, and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, Lender and Borrower hereby agree as follows:



Section 1. Definitions. Unless otherwise defined herein, all capitalized terms used
and not defined herein shall have the meanings assigned to such terms in the Loan Agreement.



Section 2. Amendments to Loan Agreement. The sections, definitions, schedules,
annexes and exhibits of and to the Loan Agreement referenced and set forth on Annex A to
this Amendment hereby are amended and restated to read as set forth on such Annex A, which
annex is incorporated herein and made a part hereof and of the Loan Agreement.


 


 









 







Section 3. Representations and Warranties.



(a) Notwithstanding any other provision of this Amendment, each Borrower individually hereby
(i) confirms and makes all of the representations and warranties set forth in the Loan Agreement
and other Loan Documents with respect to such Borrower and this Amendment as of the date hereof and
confirms that they are true and correct, (ii) represents and warrants that they are Affiliates of
each other, and (iii) specifically represents and warrants to Lender that it has good and
marketable title to all of its respective Collateral, free and clear of any Lien or security
interest in favor of any other Person (other than Permitted Liens).



(b) Each Borrower individually hereby represents and warrants as of the date of this Amendment
as follows: (i) it is duly incorporated or organized, validly existing and in good standing under
the laws of its jurisdiction of organization; (ii) the execution, delivery and performance by it of
this Amendment are within its powers, have been duly authorized, and do not contravene (A) its
articles of organization, operating agreement, or other organizational documents, or (B) any
applicable law; (iii) no consent, license, permit, approval or authorization of, or registration,
filing or declaration with any Governmental Authority or other Person, is required in connection
with the execution, delivery, performance, validity or enforceability of this Amendment by or
against it; (iv) this Amendment has been duly executed and delivered by it; (v) this Amendment
constitutes its legal, valid and binding obligations enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally
or by general principles of equity; and (vi) it is not in default under the Loan Agreement and no
Default or Event of Default exists, has occurred or is continuing.



Section 4. Expenses. Borrower shall pay all costs and expenses incurred by Lender or
any of its Affiliates, including, without limitation, documentation and diligence fees and
expenses, all search, audit, appraisal, recording, professional and filing fees and expenses and
all other out-of-pocket charges and expenses (including, without limitation, UCC and judgment and
tax lien searches and UCC filings and fees for post-Closing UCC and judgment and tax lien searches)
and reasonable attorneys’ fees and expenses, in connection with entering into, negotiating,
preparing, reviewing and executing this Amendment contemplated hereby and all related agreements,
documents and instruments required hereunder and under the Loan Agreement, and all of the same may
be charged to any Borrower’s account and shall be part of the Obligations. If Lender or any of its
Affiliates uses in-house counsel for any of the purposes set forth above Borrowers expressly agree
that its Obligations include reasonable charges for such work commensurate with the fees that would
otherwise be charged by outside legal counsel selected by Lender or such Affiliate in its sole
discretion for the work performed.



Section 5. Reference to the Effect on the Loan Agreement. Upon the effectiveness of
this Amendment, (i) each reference in the Loan Agreement to “this Agreement,” “hereunder,”
“hereof,” “herein” or words of similar import shall mean and be a reference to the Loan Agreement
as amended by this Amendment, and (ii) each reference in any other Loan Document to the “Loan
Agreement” shall mean and be a reference to the Loan Agreement as amended by this Amendment. Each
reference herein to the Loan Agreement shall be deemed to mean the Loan Agreement as amended by
this Amendment. Except as specifically amended hereby, the Loan Agreement and all other Loan
Documents shall remain in full force and effect and the terms thereof are expressly incorporated
herein and are ratified and confirmed in all respects, and the grant of Liens thereunder, and their
agreements, covenants, obligations, representations and warranties thereunder and therein, are
expressly ratified and confirmed in all respects. This Amendment is not intended to be or to
create, nor shall it be construed as or constitute, a novation or an accord and satisfaction but
shall constitute an amendment of the Loan Agreement. The parties hereto agree to be bound by the
terms and conditions of the Loan Agreement as amended by this Amendment as though such terms and
conditions were set forth herein in full. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided in this Amendment, operate as a waiver of any
right, power or remedy of Lender, nor constitute a waiver of any provision of the Loan Agreement or
any other Loan Document or any other documents, instruments and agreements executed or delivered in
connection therewith or of any Default or Event of Default under any of the foregoing whether
arising before or after the date hereof or as a result of performance hereunder.


 


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Section 6. Governing Law and Jury Trial. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE CHOICE OF LAW PROVISIONS SET FORTH IN THE LOAN AGREEMENT AND SHALL BE
SUBJECT TO THE WAIVER OF JURY TRIAL AND NOTICE PROVISIONS OF THE LOAN AGREEMENT.



Section 7. Headings and Counterparts. The captions in this Amendment are intended for
convenience and reference only and do not constitute and shall not be interpreted as part of this
Amendment and shall not affect the meaning or interpretation of this Amendment. This Amendment may
be executed in one or more counterparts, all of which taken together shall constitute but one and
the same instrument. This Amendment may be executed by facsimile transmission, which facsimile
signatures shall be considered original executed counterparts for all purposes, and each party to
this Amendment agrees that it will be bound by its own facsimile signature and that it accepts the
facsimile signature of each other party to this Amendment.



Section 8. Amendments. This Amendment may not be changed, modified, amended,
restated, waived, supplemented, discharged, canceled or terminated orally or by any course of
dealing or in any other manner other than by the written agreement of Lender and Borrowers. This
Amendment shall be considered part of the Loan Agreement for all purposes under the Loan Agreement.



Section 9. Entire Agreement. This Amendment, the Loan Agreement and the other Loan
Documents constitute the entire agreement between the parties with respect to the subject matter
hereof and thereof and supersedes all prior agreements and understandings, if any, relating to the
subject matter hereof and thereof and may not be contradicted by evidence of prior, contemporaneous
or subsequent oral agreements between the parties. There are no unwritten oral agreements between
the parties.



Section 10. Miscellaneous. Whenever the context and construction so require, all
words used in the singular number herein shall be deemed to have been used in the plural, and vice
versa, and the masculine gender shall include the feminine and neuter and the neuter shall include
the masculine and feminine. This Amendment shall inure to the benefit of Lender, all future
holders of any note, any of the Obligations or any of the Collateral and all Transferees, and each
of their respective successors and permitted assigns. No Borrower may assign, delegate or transfer
this Amendment or any of its rights or obligations under this Amendment without the prior written
consent of Lender. No rights are intended to be created under this Amendment for the benefit of
any third party donee, creditor or incidental beneficiary of any Borrower or any Guarantor.
Nothing contained in this Amendment shall be construed as a delegation to Lender of any Borrower’s
or any Guarantor’s duty of performance, including, without limitation, any duties under any account
or contract in which Lender has a security interest or Lien. This Amendment shall be binding upon
Borrowers and their respective successors and assigns.



Section 11. Conditions to Effectiveness. Notwithstanding the date of execution or
delivery of this Amendment or any other date set forth herein, this Amendment shall be effective
only upon the satisfaction of the following conditions precedent as determined by Lender in
Lender’s sole discretion (the “Sixth Amendment Effective Date”):




(a) Borrowers shall have delivered to Lender the duly executed counterparts of this Amendment;



(b) each Borrower shall have paid Lender all fees, costs and expenses incurred by Lender in
preparation and execution of this Amendment;



(c) each Borrower shall have delivered to Lender all other documents Lender may request
with respect to any matter relevant to this Amendment or the transactions contemplated hereby;


 


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(d) no Default or Event of Default shall have occurred and be continuing, unless such Default
or Event of Default has been otherwise specifically waived in writing by Lender; and



(e) The representations and warranties contained herein and in the Loan Agreement and the Loan
Documents, as each is amended hereby, shall be true and correct as of the date hereof, as if made
on the date hereof, except for such representations and warranties as are by their express terms
limited to a specific date.



Section 12. RELEASE BY BORROWER. By execution of this Amendment, each Borrower
acknowledges and confirms that such Borrower does not have any offsets, defenses or claims against
Lender, or any of its present or former subsidiaries, affiliates, officers, directors,
shareholders, employees, agents, representatives, attorneys, predecessors, successors or assigns
whether asserted or unasserted. To the extent that such Borrower may have such offsets, defenses
or claims, such Borrower and each of its successors, assigns, parents, subsidiaries, affiliates,
predecessors, employees, agents, heirs, executors, as applicable, jointly and severally,
knowingly, voluntarily and intentionally waive, release and forever discharge Lender, its
subsidiaries, affiliates, officers, directors, shareholders, employees, agents, attorneys,
predecessors, successors and assigns, both present and former (collectively the “Lender
Affiliates”) of and from any and all actual or potential claims, demands, damages, actions,
requests for sanctions and causes of action, torts, obligations, suits, debts, controversies,
damages, judgments, executions, claims and demands whatsoever, all other liabilities whether known
or unknown, matured or unmatured, contingent or absolute, of any kind or description whatsoever,
either in law or in equity, asserted or unasserted which against Lender and/or Lender Affiliates
they ever had, now have, claim to have or may later have or which any of any of such Borrower’s
successors, assigns, parents, subsidiaries, affiliates, predecessors, employees, agents, heirs,
executors, as applicable, both present and former ever had, now has, claim to have or may later
have, upon or by reason of any manner, cause, causes or thing whatsoever, including, without
limitation, any presently existing claim or defense whether or not presently suspected,
contemplated or anticipated, and each Borrower hereby agrees that such Borrower is collaterally
estopped from asserting any claims against Lender or any of the Lender Affiliates relating to the
foregoing.



[SIGNATURES APPEAR ON NEXT PAGE]




 


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IN WITNESS WHEREOF, the parties have caused this Sixth Amendment to Third Amended and Restated
Revolving Credit, Term Loan and Security Agreement to be executed by their respective officers
thereunto duly authorized as of the date first written above.



	 	 	 	 	 	 	 	 	 
	LENDER:	 	CAPITALSOURCE FINANCE LLC,
	 	 	a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Patrick L. Coffey	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Patrick L. Coffey	 	 
	 

	 	 	 	Title:
	 	Director — Healthcare & Specialty Finance	 	 
	 
	 	 	 	 	 	 	 	 
	BORROWER:	 	UNITED STATES PHARMACEUTICAL
	 	 	GROUP, L.L.C. d/b/a NATIONSHEALTH
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Timothy Fairbanks	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Timothy Fairbanks	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	NATIONSHEALTH HOLDINGS, L.L.C.
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Timothy Fairbanks	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Timothy Fairbanks	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	NATIONSHEALTH, INC.
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Timothy Fairbanks	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Timothy Fairbanks	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	DIABETES CARE AND EDUCATION, INC.
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Timothy Fairbanks	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Timothy Fairbanks	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 







 


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