Exhibit 10.6

 

Execution Version

 

AMENDMENT NO. 2 TO
 SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (“Amendment”) dated as of September 29, 2017, by and among DIPLOMAT PHARMACY, INC., a Michigan corporation (“Borrower”), the other Credit Parties signatory hereto, HEALTHCARE FINANCIAL SOLUTIONS, LLC, a Delaware limited liability company (successor to General Electric Capital Corporation), as agent (in such capacity, “Agent”) for the lenders (collectively, “Lenders”) from time to time party to the Credit Agreement (as defined below), and the Lenders.

 

RECITALS

 

A.                                    Borrower, the other Credit Parties signatory thereto, Agent and Lenders are parties to the Second Amended and Restated Credit Agreement dated as of April 1, 2015, as amended by Amendment No. 1 thereto dated as of April 27, 2016 (the “Credit Agreement”), pursuant to which Lenders agreed to provide certain financial accommodations to or for the benefit of Borrower and the other Credit Parties upon the terms and conditions contained therein. Unless otherwise defined herein, capitalized terms or matters of construction defined or established in the Credit Agreement shall be applied herein as defined or established therein.

 

B.                                    Credit Parties have requested that Agent and Lenders amend the covenant in Section 5.12 of the Credit Agreement regarding Change in Business as more fully provided herein.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the continued performance by Borrower and the other Credit Parties of their promises and obligations under the Credit Agreement and the other Loan Documents, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower, the other Credit Parties, Agent and Required Lenders hereby agree as follows:

 

1.                                      Ratification and Incorporation of Credit Agreement and Other Loan Documents. Except as expressly modified under this Amendment, (a) each Credit Party hereby acknowledges, confirms, and ratifies all of the terms and conditions set forth in, and all of its obligations under, the Credit Agreement and the other Loan Documents, and (b) all of the terms and conditions set forth in the Credit Agreement and the other Loan Documents are incorporated herein by this reference as if set forth in full herein. Each Credit Party represents that it has no offset, defense, counterclaim, dispute or disagreement of any kind or nature whatsoever with respect to the amount of such Indebtedness.

 

2.                                      Amendment of Credit Agreement. Section 5.12 of the Credit Agreement is hereby amended and restated in its entirety as follows:

 

“5.12 Change in Business. No Credit Party shall, and no Credit Party shall permit any of its Subsidiaries to, engage in any line of business different from those lines of business carried on by it on the Closing Date and similar or related businesses or reasonable extensions thereof and businesses ancillary or incidental thereto.”

 











 

3.                                      Conditions to Effectiveness. The effectiveness of this Amendment is subject to the following conditions precedent and shall become effective on the date (the “Amendment No. 2 Effective Date”) on which such conditions are satisfied:

 

(a)                                 the Agent shall have received copies of the Amendment duly executed by Borrower, the other Credit Parties and Required Lenders; and

 

(b)                                 the representations and warranties in Section 5 of this Amendment shall be true and correct as of the Amendment No. 2 Effective Date.

 

4.                                      Entire Agreement. This Amendment, together with the Credit Agreement and the other Loan Documents, is the entire agreement between the parties hereto with respect to the subject matter hereof. This Amendment supersedes all prior and contemporaneous oral and written agreements and discussions with respect to the subject matter hereof. Except as otherwise expressly modified herein, the Loan Documents shall remain in full force and effect.

 

5.                                      Representations and Warranties. The Credit Parties, jointly and severally, hereby represent and warrant that the representations and warranties contained in the Credit Agreement were true and correct in all material respects when made and, except to the extent that (a) a particular representation or warranty by its terms expressly applies only to an earlier date, or (b) any Credit Party has previously advised Agent in writing as contemplated under the Credit Agreement, are true and correct in all material respects as of the date hereof.

 

6.                                      Release. Each Credit Party hereby irrevocably releases and forever discharges each Indemnitee of and from all damages, losses, claims, demands, liabilities, obligations, actions or causes of action whatsoever (each a “claim”) that such Credit Party may now have or claim to have against any Indemnitee on the date hereof, whether known or unknown, of every nature and extent whatsoever, for or because of any matter or thing done, omitted or suffered to be done or omitted by any of the Released Persons that both (a) occurred prior to or on the date hereof and (b) is on account of or in any way concerning, arising out of or founded upon the Credit Agreement or any other Loan Document, or Agent’s administration of and actions under the Credit Agreement or any other Loan Document (each, a “Released Claim”).

 

Each Credit Party acknowledges that it may hereafter discover facts different from or in addition to those now known or believed to be true with respect to such Released Claims, and agrees that this Amendment and the above release are and will remain effective in all respects as a release of Released Claims notwithstanding any such differences or additional facts. Without limiting the restrictions on any Credit Party to sell or assign any rights under the Credit Agreement and the other Loan Documents, each Credit Party represents and warrants that it has not heretofore sold, assigned, transferred, pledged hypothecated or purported to have sold, assigned, transferred, pledged or hypothecated any Released Claim. Each Credit Party further represents and warrants that Credit Parties are the sole Credit Parties under the Credit Agreement and the other Loan Documents and are the sole owner and holder of all Released Claims.

 

7.                                      Miscellaneous.

 

7.1                               Expenses. Borrower agrees to pay on demand all reasonable costs and expenses of Agent (including reasonable attorneys’ fees) incurred in connection with the

 

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preparation, negotiation, execution, delivery and administration of this Amendment and all other instruments or documents provided for herein or delivered or to be delivered hereunder or in connection herewith. All obligations provided herein shall survive any termination of this Amendment and the Credit Agreement as amended hereby.

 

7.2                               Counterparts. This Amendment may be executed in identical counterpart copies, each of which shall be an original, but all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart thereof.

 

7.3                               Headings. Section headings used herein are for convenience of reference only, are not part of this Amendment, and are not to be taken into consideration in interpreting this Amendment.

 

7.4                               Recitals. The recitals set forth at the beginning of this Amendment are true and correct, and such recitals are incorporated into and are a part of this Amendment.

 

7.5                               Governing Law. This Amendment shall be governed by, and construed and enforced in accordance with, the laws of the State of New York applicable to contracts made and performed in such state, without regard to the principles thereof regarding conflict of laws.

 

7.6                               Effect. Upon the effectiveness of this Amendment, from and after the date hereof, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” or words of like import shall mean and be a reference to Credit Agreement as amended hereby, and each reference in the other Loan Documents to “the Credit Agreement,” “thereunder,” “thereof,” or words of like import shall mean and be a reference to the Credit Agreement as amended hereby.

 

7.7                               No Novation. Except as expressly provided in Sections 2 and 3 above, the execution, delivery, and effectiveness of this Amendment shall not (a) limit, impair, constitute a waiver of, or otherwise affect any right, power, or remedy of Agent or any Lender under the Credit Agreement or any other Loan Document, (b) constitute a waiver of any provision in the Credit Agreement or in any of the other Loan Documents, or (c) alter, modify, amend, or in any way affect any of the terms, conditions, obligations, covenants, or agreements contained in the Credit Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect.

 

7.8                               Conflict of Terms. In the event of any inconsistency between the provisions of this Amendment and any provision of the Credit Agreement, the terms and provisions of this Amendment shall govern and control.

 

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IN WITNESS WHEREOF, this Amendment No. 2 to Second Amended and Restated Credit Agreement has been duly executed as of the date first written above.

 

	
 
    	
DIPLOMAT PHARMACY, INC.
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Philip R. Hagerman
    
	
 
    	
 
    	
Name: Philip R. Hagerman
    
	
 
    	
 
    	
Title: Chief Executive Officer
    
	
 
    	
 
    	
 
    
	
 
    	
DIPLOMAT   SPECIALTY PHARMACY OF FLINT, LLC

DIPLOMAT   SPECIALTY PHARMACY OF GRAND RAPIDS, LLC

DIPLOMAT   SPECIALTY PHARMACY OF CHICAGO, LLC

DIPLOMAT   SPECIALTY PHARMACY OF FT. LAUDERDALE, LLC

DIPLOMAT   SPECIALTY PHARMACY OF SOUTHERN CALIFORNIA, LLC

DIPLOMAT   SPECIALTY PHARMACY GREAT LAKES DISTRIBUTION CENTER, LLC

DIPLOMAT   CORPORATE PROPERTIES, LLC

NAVIGATOR   HEALTH SERVICES, LLC
    
	
 
    	
 
    
	
 
    	
By: Diplomat Pharmacy, Inc., its member
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Philip R. Hagerman
    
	
 
    	
Name:
    	
Philip R. Hagerman
    
	
 
    	
Title:
    	
Chief Executive Officer
    
	
 
    	
 
    	
 
    
	
 
    	
DSP FLINT REAL ESTATE, LLC
   DSP-BUILDING C, LLC
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Philip R. Hagerman
    
	
 
    	
Name:
    	
Philip R. Hagerman
    
	
 
    	
Title:
    	
Manager
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
ACCURATE RX PHARMACY   CONSULTING, LLC
   ACCURATE ADVANTAGE, LLC
   AFFINITY BIOTECH, INC.
   COMFORT INFUSION, INC.
   FOCUS RX INC.
   FOCUS RX PHARMACY SERVICES INC.
   WRB COMMUNICATIONS, LLC
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Philip R. Hagerman
    
	
 
    	
Name:
    	
Philip R. Hagerman
    
	
 
    	
Title:
    	
Secretary and Treasurer
    
				


 

[SIGNATURE PAGE TO AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]

 











 

	
 
    	
MEDPRO RX, INC.

AMERICAN   HOMECARE FEDERATION, INC.

DIPLOMAT   BLOCKER, INC

DIPLOMAT SPECIALTY PHARMACY OF   LOS ANGELES COUNTY, INC. (formerly Valley Campus Pharmacy, Inc.)

DIPLOMAT SPECIALTY PHARMACY OF PHILADELPHIA,   LLC

DIPLOMAT SPECIALTY PHARMACY OF BOOTHWYN,   LLC

PHARMTRACK, LLC

AT-HOME IV INFUSION   PROFESSIONAL, INC.

XAS INFUSION SUITES, INC.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Joel Saban
    
	
 
    	
Name:
    	
Joel Saban
    
	
 
    	
Title:
    	
President
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
ENVOY HEALTH MANAGEMENT, LLC
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Joel Saban
    
	
 
    	
Name:
    	
Joel Saban
    
	
 
    	
Title:
    	
Manager
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
BIORX, LLC
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Philip Rielly
    
	
 
    	
Name:
    	
Philip Rielly
    
	
 
    	
Title:
    	
President
    


 

[SIGNATURE PAGE TO AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]

 











 

	
 
    	
HEALTHCARE FINANCIAL SOLUTIONS, LLC,
 as Agent, Swingline Lender and   as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:  
    	
/s/ Karen M. Dahlquist
    
	
 
    	
Name: 
    	
Karen M. Dahlquist
    
	
 
    	
Title: 
    	
Duly Authorized Signatory
    


 

[SIGNATURE PAGE TO AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]

 











 

	
 
    	
Bank of America, N.A.
    as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Lori Egan
    
	
 
    	
Name:
    	
Lori Egan
    
	
 
    	
Title:
    	
SVP
    


 

[SIGNATURE PAGE TO AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]

 











 

	
 
    	
CHEMICAL BANK,
    as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Brian Banning
    
	
 
    	
Name:
    	
Brian Banning
    
	
 
    	
Title:
    	
Senior Vice President
    


 

[SIGNATURE PAGE TO AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]

 











 

	
 
    	
Citizens Bank, N.A.,
    as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Mark Guyeski
    
	
 
    	
Name:
    	
Mark Guyeski
    
	
 
    	
Title:
    	
AVP Portfolio Manager
    


 

[SIGNATURE PAGE TO AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]

 












 

	
 
    	
Comerica Bank,
    as a Lender
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Michael Cliff
    
	
 
    	
Name:
    	
Michael Cliff
    
	
 
    	
Title:
    	
Vice President
    


 

[SIGNATURE PAGE TO AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]

 











 

	
 
    	
 
    	
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,
 as a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/ Christopher Day
    
	
 
    	
 
    	
Name:
    	
Christopher Day
    
	
 
    	
 
    	
Title:
    	
Authorized Signatory
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/ Joan Park
    
	
 
    	
 
    	
Name:
    	
Joan Park
    
	
 
    	
 
    	
Title:
    	
Authorized Signatory
    


 

[SIGNATURE PAGE TO AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]

 











 

	
 
    	
 
    	
DEUTSCHE BANK AG NEW YORK BRANCH,
    as a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/ Marcus Tarkington
    
	
 
    	
 
    	
Name:
    	
Marcus Tarkington
    
	
 
    	
 
    	
Title:
    	
Director
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/ Auca Trifan
    
	
 
    	
 
    	
Name:
    	
Auca Trifan
    
	
 
    	
 
    	
Title:
    	
Managing Director
    


 

[SIGNATURE PAGE TO AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]

 











 

	
 
    	
 
    	
FIFTH THIRD BANK,
    as a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/ Nathaniel E. Sher
    
	
 
    	
 
    	
Nathaniel E. Sher
    
	
 
    	
 
    	
Director
    


 

[SIGNATURE PAGE TO AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]

 











 

	
 
    	
 
    	
FLAGSTAR BANK, FSB,
    as a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/ Elizabeth K. Hausman
    
	
 
    	
 
    	
Name:
    	
Elizabeth K. Hausman
    
	
 
    	
 
    	
Title:
    	
First Vice President
    


 

[SIGNATURE PAGE TO AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]

 











 

	
 
    	
 
    	
The Huntington National Bank,
    as a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/ Josephine C. Wisniewski
    
	
 
    	
 
    	
Name:
    	
Josephine C. Wisniewski
    
	
 
    	
 
    	
Title:
    	
Vice President
    


 

[SIGNATURE PAGE TO AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]

 











 

	
 
    	
 
    	
JPMorgan Chase Bank, N.A., Co-Syndication   Agent and, as a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/ Diane Forrest
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Name:
    	
Diane Forrest
    
	
 
    	
 
    	
Title:
    	
Authorized   Officer
    


 

 

	
 
    	
 
    	
Address for   Notices:
    
	
 
    	
 
    	
1116 W. Long Lake Road,
    
	
 
    	
 
    	
2nd Floor
    
	
 
    	
 
    	
Bloomfield Hills, MI 48302
    
	
 
    	
 
    	
Attn: Diane Forrest
    
	
 
    	
 
    	
Fax: 248-636-1376
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Lending Office:
    
	
 
    	
 
    	
Same as above
    


 

[SIGNATURE PAGE TO AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]

 











 

	
 
    	
 
    	
MORGAN STANLEY SENIOR FUNDING, INC.,
    as a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/ Alice Lee
    
	
 
    	
 
    	
Name:
    	
Alice Lee
    
	
 
    	
 
    	
Title:
    	
Vice President
    


 

[SIGNATURE PAGE TO AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]

 











 

	
 
    	
 
    	
MUFG UNION BANK, N.A.,
    as a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/ Brian McNany
    
	
 
    	
 
    	
Name:
    	
Brian McNany
    
	
 
    	
 
    	
Title:
    	
Director
    


 

[SIGNATURE PAGE TO AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]

 











 

	
 
    	
 
    	
Wells Fargo Bank, N.A.
    as a Lender
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
/s/ Scott Sanford
    
	
 
    	
 
    	
Name:
    	
Scott Sanford
    
	
 
    	
 
    	
Title:
    	
Duly Authorized Signatory
    


 

[SIGNATURE PAGE TO AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT]