ACKNOWLEDGEMENTS, WAIVERS, ETC. Upon executing where indicated below, Accentia and each of the Guarantors, respectively, shall thereby immediately, and subject to no conditions precedent, thereby acknowledge and agree as follows: 1. That as of the date of execution hereof, that certain “Accentia Assumption of Debt and Security Agreement” dated as of December 31, 2003 (as modified or amended in writing, from time to time, including by the First Amendment, the First Restructure Opportunity Extension Letter, the Second Restructure Opportunity Extension Letter, and this Third Modification of First Amendment called the “Assumption Agreement”), remains in full force and effect in accordance with its express written terms, and each and any document or agreement executed by Accentia or any Guarantor in favor of or for the benefit of McKesson remains in full force and effect (except as expressly modified or released in a writing signed by McKesson) subject to no defenses, counterclaims or offsets whatsoever, whether known or unknown, and whether legal or equitable in nature; 2. That each Guarantor hereby consents to the modifications of the First Amendment as described in this Third Modification of First Amendment and further agrees that such modifications shall not and do not give rise to any defense, counter claim or offset against any obligation that any Guarantor owes to McKesson under any document executed by such Guarantor in favor of McKesson or under applicable law; 3. McKesson had no and has no obligation to provide the accommodations or the modifications set forth in this Third Modification of First Amendment and in granting the accommodations and/or agreeing to the modifications set forth herein, McKesson is not establishing a pattern and practice or course of dealing of providing future accommodations, extensions or modifications, nor of modifying the Assumption Agreement in any manner whatsoever; and 4. Except as expressly modified in a writing signed by McKesson, the Assumption Agreement remains in full force and effect. If the foregoing is agreeable, please execute this Third Modification of First Amendment where indicated below and return it (and all counterparts) to the undersigned. The accommodations and other modifications shall be effective upon satisfaction of the conditions precedent set forth in Section B above. This is the entire agreement between McKesson and the other undersigned parties regarding the matters set forth herein, superseding all prior discussions, drafts or negotiations. There are no third party beneficiaries of this Third Modification of First Amendment. Best regards, MCKESSON CORPORATION By: /s/ Xxx Xxxxxxx Xxx Xxxxxxx Title: Vice President Financial Services Accentia Biopharmaceuticals, Inc. July 8, 2005 ACCEPTED, ACKNOWLEDGED AND AGREED as of this 8th day of July, 2005. ACCENTIA BIOPHARMACEUTICALS, INC. By: /s/ Xxxx X. Xxxxxx Title: Chief Financial Officer /s/ Xxxxxxx X. X’Xxxxxxx, Xx. M.D. XXXXXXX X. X’XXXXXXX, XX., M.D. REGENT COURT TECHNOLOGIES By: /s/ Xxxxxxx X. X’Xxxxxxx, Xx. M.D. Xxxxxxx X. X’Xxxxxxx, Xx., M.D. Managing Member Acentia Biopharmaceuticals, Inc. July 8, 2005 XXXXXXX CAPITAL GROUP, LLC By: /s/ Xxxxxxx X. X’Xxxxxxx, Xx. M.D. Xxxxxxx X. X’Xxxxxxx, Xx., M.D. Title: Managing Member XXXXXXX CAPITAL GROUP II, LLC By: /s/ Xxxxxxx X. X’Xxxxxxx, Xx. M.D. Xxxxxxx X. X’Xxxxxxx, Xx., M.D. Title: Managing Member /s/ Xxxxxx X. Xxxx, M.D. XXXXXX X. XXXX, M.D. MOAB INVESTMENTS, LP By: /s/ Xxx Xxxx By: Xxx Xxxx Title: President of MOAB Management Co., Inc. Its General Partner August 15, 2005 Accentia Biopharmaceuticals, Inc. 000 Xxxxx Xxxx Xxxx Xxx., Xxxxx 000 Xxxxx, XX 00000 Attn: Xxxxxxx X. X’Xxxxxxx, Xx. M.D. Re: Fourth Modification of “First Amendment to Accentia Assumption of Debt and Security Agreement” dated as of February __, [sic] 2005 (the “First Amendment”) Executed by Accentia Biopharmaceuticals, Inc. (“Accentia”) and McKesson Corporation (“McKesson”). Gentlemen: This is the “Fourth Modification of First Amendment” relating to the First Amendment referenced above. Two of the three previous modifications related to your request to extend the deadline by which Accentia was permitted to exercise the so-called “Restructure Opportunity” described in Section 9 of the First Amendment. Thus, although McKesson had no obligation to do so, McKesson extended the deadline for Accentia to take advantage of and to perform the Restructure Opportunity first to June 30, 2005 in a letter agreement dated as of May 31, 2005 (the “First Restructure Opportunity Extension Letter”), and then to July 8, 2005 in a letter agreement dated as of June 28, 2005 (the “Second Restructure Opportunity Extension Letter”). Thereafter, in a letter agreement dated as of July 8, 2005 (the “Third Modification of First Amendment”), the parties confirmed that the Restructure Opportunity had expired without exercise thereof, and McKesson agreed, despite not having had any obligation to do so, to grant an extension of the “Full Payment Deadline” to the first to occur of August 15, 2005 and certain other events as set forth therein, and to make certain other accommodations to Accentia. Due to various events, you have now requested that McKesson (a) extend the outside date by which Accentia must plus pay all “Obligations” owing to McKesson, including accrued and unpaid interest, all fees, costs and expenses incurred by McKesson in connection with the Obligations, plus any other indebtedness owed by Accentia to McKesson (or to any affiliate of McKesson), other than in connection with the Biologics Distribution Agreement from August 15, 2005 to September 14, 2005, and (b) to increase the level of “Senior Indebtedness” that Accentia may owe to Laurus Master Fund, Ltd. and to which McKesson’s liens are subordinate from Accentia Biopharmaceuticals, Inc. August 15, 2005 $10,000,000 to $15,000,000 (for principal). Based on those requests, although it has and had no obligation to do so, McKesson is willing to grant the accommodations to Accentia described in Section A below and in Section B below, subject to the full and timely satisfaction of the conditions in Section C below. Capitalized terms not otherwise defined herein shall have the meanings they were assigned to have in the Assumption Agreement, as amended from time to time including by this letter agreement (the “Fourth Modification of First Amendment”).
Appears in 2 contracts
Samples: Assumption of Debt and Security Agreement (Accentia Biopharmaceuticals Inc), Assumption of Debt and Security Agreement (Accentia Biopharmaceuticals Inc)
ACKNOWLEDGEMENTS, WAIVERS, ETC. Upon executing where indicated below, Accentia and each of the Guarantors, respectively, shall thereby hereby immediately, and subject to no conditions precedentprecedent including those set forth in Section C above, thereby hereby acknowledge and agree as follows:
1. That as of the date of execution hereof, that certain “Accentia Assumption of Debt and Security Agreement” dated as of December 31, 2003 (as modified or amended in writing, from time to time, including by the First Amendment, the First Restructure Opportunity Extension Letter, the Second Restructure Opportunity Extension Letter, the Third Modification of First Amendment, and this Third Fourth Modification of First Amendment called the “Assumption Agreement”), remains in full force and effect in accordance with its express written terms, and each and any document or agreement executed by Accentia or any Guarantor in favor of or for the benefit of McKesson remains in full force and effect (except as expressly modified or released in a writing signed by McKesson) subject to no defenses, counterclaims or offsets whatsoever, whether known or unknown, and whether legal or equitable in nature;
2. That each Guarantor hereby consents to the modifications of the Assumption Agreement and the First Amendment as described in this Third Fourth Modification of First Amendment (and in each of the prior amendments to the Assumption Agreement, and further agrees that such modifications shall not and do not give rise to any defense, counter claim or offset against any obligation that any Guarantor owes to McKesson under any document executed by such Guarantor in favor of McKesson or under applicable law;
3. That each Guarantor hereby consents to the execution and performance by Xxxxxxx X. X’Xxxxxxx, Xx., M.D. and Xxxxxx X. Xxxx, M.D. of the “Agreement of Principal Guarantors” executed and delivered to McKesson on or about the date hereof, and each and all of the undersigned parties, including Accentia acknowledges and agrees that the Agreement of Accentia Biopharmaceuticals, Inc. August 15, 2005 Principal Guarantors shall constitute an “Assumption Document” and that a default thereunder or breach thereof shall be an “Event of Default” under the Assumption Agreement;
4. McKesson had no and has no obligation to provide the accommodations or the modifications set forth in this Third Fourth Modification of First Amendment and in granting the accommodations and/or agreeing to the modifications set forth herein, McKesson is not establishing a pattern and practice or course of dealing of providing future accommodations, extensions or modifications, nor of modifying the Assumption Agreement in any manner whatsoever; and;
45. Except as expressly modified in a writing signed by McKesson, the Assumption Agreement remains in full force and effect; and
6. If Although this Fourth Modification of First Amendment has modified the foregoing is agreeabledefinition of “Full Payment Deadline” (also sometimes referred to as the “Final Payment Deadline”), please execute this none of Accentia nor any other person or entity shall hereafter be entitled to a refund of any portion of the Modification Fee paid pursuant to the Third Modification of First Amendment where indicated below and return it (and all counterparts) to if the undersigned. The accommodations and other modifications shall be effective upon satisfaction Obligations were paid in full on or before the earlier of the conditions precedent set forth in Section B above. This is the entire agreement between McKesson and the other undersigned parties regarding the matters set forth herein, superseding all prior discussions, drafts or negotiations. There are no third party beneficiaries date that was (i) 21 calendar days of this Third Modification of First Amendment. Best regards, MCKESSON CORPORATION By: /s/ Xxx Xxxxxxx Xxx Xxxxxxx Title: Vice President Financial Services Accentia Biopharmaceuticals, Inc. July 8, 2005 ACCEPTED2005, ACKNOWLEDGED AND AGREED as and (ii) the Full Payment Deadline, nor of any portion of the Modification Fee payable or paid pursuant to this 8th day of July, 2005. ACCENTIA BIOPHARMACEUTICALS, INC. By: /s/ Xxxx X. Xxxxxx Title: Chief Financial Officer /s/ Xxxxxxx X. X’Xxxxxxx, Xx. M.D. XXXXXXX X. X’XXXXXXX, XX., M.D. REGENT COURT TECHNOLOGIES By: /s/ Xxxxxxx X. X’Xxxxxxx, Xx. M.D. Xxxxxxx X. X’Xxxxxxx, Xx., M.D. Managing Member Acentia Biopharmaceuticals, Inc. July 8, 2005 XXXXXXX CAPITAL GROUP, LLC By: /s/ Xxxxxxx X. X’Xxxxxxx, Xx. M.D. Xxxxxxx X. X’Xxxxxxx, Xx., M.D. Title: Managing Member XXXXXXX CAPITAL GROUP II, LLC By: /s/ Xxxxxxx X. X’Xxxxxxx, Xx. M.D. Xxxxxxx X. X’Xxxxxxx, Xx., M.D. Title: Managing Member /s/ Xxxxxx X. Xxxx, M.D. XXXXXX X. XXXX, M.D. MOAB INVESTMENTS, LP By: /s/ Xxx Xxxx By: Xxx Xxxx Title: President of MOAB Management Co., Inc. Its General Partner August 15, 2005 Accentia Biopharmaceuticals, Inc. 000 Xxxxx Xxxx Xxxx Xxx., Xxxxx 000 Xxxxx, XX 00000 Attn: Xxxxxxx X. X’Xxxxxxx, Xx. M.D. Re: Fourth Modification of “First Amendment to Accentia Assumption of Debt and Security Agreement” dated as of February __, [sic] 2005 (the “First Amendment”) Executed by Accentia Biopharmaceuticals, Inc. (“Accentia”) and McKesson Corporation (“McKesson”). Gentlemen: This is the “Fourth Modification of First Amendment” relating to the First Amendment referenced above. Two of the three previous modifications related to your request to extend the deadline by which Accentia was permitted to exercise the so-called “Restructure Opportunity” described in Section 9 of the First Amendment. Thus, although McKesson had no obligation to do so, McKesson extended the deadline for Accentia to take advantage of and to perform the Restructure Opportunity first to June 30, 2005 in a letter agreement dated as of May 31, 2005 (the “First Restructure Opportunity Extension Letter”), and then to July 8, 2005 in a letter agreement dated as of June 28, 2005 (the “Second Restructure Opportunity Extension Letter”). Thereafter, in a letter agreement dated as of July 8, 2005 (the “Third Modification of First Amendment”), the parties confirmed that the Restructure Opportunity had expired without exercise thereof, and McKesson agreed, despite not having had any obligation to do so, to grant an extension of the “Full Payment Deadline” to the first to occur of August 15, 2005 and certain other events as set forth therein, and to make certain other accommodations to Accentia. Due to various events, you have now requested that McKesson (a) extend the outside date by which Accentia must plus pay all “Obligations” owing to McKesson, including accrued and unpaid interest, all fees, costs and expenses incurred by McKesson in connection with the Obligations, plus any other indebtedness owed by Accentia to McKesson (or to any affiliate of McKesson), other than in connection with the Biologics Distribution Agreement from August 15, 2005 to September 14, 2005, and (b) to increase the level of “Senior Indebtedness” that Accentia may owe to Laurus Master Fund, Ltd. and to which McKesson’s liens are subordinate from Accentia Biopharmaceuticals, Inc. August 15, 2005 $10,000,000 to $15,000,000 (for principal). Based on those requests, although it has and had no obligation to do so, McKesson is willing to grant the accommodations to Accentia described in Section A below and in Section B below, subject to the full and timely satisfaction of the conditions in Section C below. Capitalized terms not otherwise defined herein shall have the meanings they were assigned to have in the Assumption Agreement, as amended from time to time including by this letter agreement (the “Fourth Modification of First Amendment”).
Appears in 1 contract
Samples: Assumption of Debt and Security Agreement (Accentia Biopharmaceuticals Inc)
ACKNOWLEDGEMENTS, WAIVERS, ETC. Upon executing where indicated below, Accentia and each of the Guarantors, respectively, shall thereby hereby immediately, and subject to no conditions precedentprecedent including those set forth in Section C above, thereby hereby acknowledge and agree as follows:
1. That as of the date of execution hereof, that certain “Accentia Assumption of Debt and Security Agreement” dated as of December 31, 2003 (as modified or amended in writing, from time to time, including by the First Amendment, the First Restructure Opportunity Extension Letter, the Second Restructure Opportunity Extension Letter, the Third Modification of First Amendment, and this Third Fourth Modification of First Amendment called the “Assumption Agreement”), remains in full force and effect in accordance with its express written terms, and each and any document or agreement executed by Accentia or any Guarantor in favor of or for the benefit of McKesson remains in full force and effect (except as expressly modified or released in a writing signed by McKesson) subject to no defenses, counterclaims or offsets whatsoever, whether known or unknown, and whether legal or equitable in nature;
2. That each Guarantor hereby consents to the modifications of the Assumption Agreement and the First Amendment as described in this Third Fourth Modification of First Amendment (and in each of the prior amendments to the Assumption Agreement, and further agrees that such modifications shall not and do not give rise to any defense, counter claim or offset against any obligation that any Guarantor owes to McKesson under any document executed by such Guarantor in favor of McKesson or under applicable law;
3. That each Guarantor hereby consents to the execution and performance by Xxxxxxx X. X’Xxxxxxx, Xx., M.D. and Xxxxxx X. Xxxx, M.D. of the “Agreement of Principal Guarantors” executed and delivered to McKesson on or about the date hereof, and each and all of the undersigned parties, including Accentia acknowledges and agrees that the Agreement of Accentia Biopharmaceuticals, Inc. August 15, 2005 Principal Guarantors shall constitute an “Assumption Document” and that a default thereunder or breach thereof shall be an “Event of Default” under the Assumption Agreement;
4. McKesson had no and has no obligation to provide the accommodations or the modifications set forth in this Third Fourth Modification of First Amendment and in granting the accommodations and/or agreeing to the modifications set forth herein, McKesson is not establishing a pattern and practice or course of dealing of providing future accommodations, extensions or modifications, nor of modifying the Assumption Agreement in any manner whatsoever; and;
45. Except as expressly modified in a writing signed by McKesson, the Assumption Agreement remains in full force and effect; and
6. Although this Fourth Modification of First Amendment has modified the definition of “Full Payment Deadline” (also sometimes referred to as the “Final Payment Deadline”), none of Accentia nor any other person or entity shall hereafter be entitled to a refund of any portion of the Modification Fee paid pursuant to the Third Modification of First Amendment if the Obligations were paid in full on or before the earlier of the date that was (i) 21 calendar days of July 8, 2005, and (ii) the Full Payment Deadline, nor of any portion of the Modification Fee payable or paid pursuant to this Fourth Modification of First Amendment. If the foregoing is agreeable, please execute this Third Fourth Modification of First Amendment where indicated below and return it (and all counterparts) to the undersigned. The accommodations and other modifications provided by McKesson shall be effective upon satisfaction of the conditions precedent set forth in Section B C above. This is the entire agreement between McKesson and the other undersigned parties regarding the matters set forth herein, superseding all prior discussions, drafts or negotiations. There are no third party beneficiaries of this Third Fourth Modification of First Amendment. Best regards, MCKESSON McKESSON CORPORATION By: /s/ Xxx Xxxxxxx Xxx Xxxxxxx Title: Vice President Financial Services Accentia Biopharmaceuticals, Inc. July 8, 2005 ACCEPTED, ACKNOWLEDGED AND AGREED as of this 8th 15th day of JulyAugust, 2005. ACCENTIA BIOPHARMACEUTICALS, INC. By: /s/ Xxxx Xxxxxxx X. Xxxxxx X’Xxxxxxx, Xx. Title: Chief Financial Officer Chairman and CEO Accentia Biopharmaceuticals, Inc. August 15, 2005 /s/ Xxxxxxx X. X’Xxxxxxx, Xx. ., M.D. XXXXXXX X. X’XXXXXXX, XX., M.D. REGENT COURT TECHNOLOGIES By: /s/ Xxxxxxx X. X’Xxxxxxx, Xx. ., M.D. Xxxxxxx X. X’Xxxxxxx, Xx., M.D. Managing Member Acentia Biopharmaceuticals, Inc. July 8, 2005 XXXXXXX CAPITAL GROUP, LLC By: /s/ Xxxxxxx X. X’Xxxxxxx, Xx. M.D. Xxxxxxx X. X’Xxxxxxx, Xx., M.D. Title: Managing Member XXXXXXX CAPITAL GROUP II, LLC By: /s/ Xxxxxxx X. X’Xxxxxxx, Xx. ., M.D. Xxxxxxx X. X’Xxxxxxx, Xx., M.D. Title: Managing Member /s/ Xxxxxx X. Xxxx, M.D. XXXXXX X. XXXX, M.D. MOAB INVESTMENTS, LP By: /s/ Xxx Xxxx By: Xxx Xxxx Title: President of MOAB Management Co., Inc. Its General Partner August 15Inc., general partner of MOAB Investments, L.P. September 13, 2005 Accentia Biopharmaceuticals, Inc. 000 Xxxxx Xxxx Xxxx Xxx., Xxxxx 000 Xxxxx, XX 00000 Attn: Xxxxxxx X. X’Xxxxxxx, Xx. M.D. Re: Fourth Fifth Modification of “First Amendment to Accentia Assumption of Debt and Security Agreement” dated as of February __, [sic] 2005 (the “First Amendment”) Executed by Accentia Biopharmaceuticals, Inc. (“Accentia”) and McKesson Corporation (“McKesson”). Gentlemen: This is the “Fourth Fifth Modification of First Amendment” relating to the First Amendment referenced above. Two of the three four previous modifications related to your request to extend the deadline by which Accentia was permitted to exercise the so-called “Restructure Opportunity” described in Section 9 of the First Amendment. Thus, although McKesson had no obligation to do so, McKesson extended the deadline for Accentia to take advantage of and to perform the Restructure Opportunity first to June 30, 2005 in a letter agreement dated as of May 31, 2005 (the “First Restructure Opportunity Extension Letter”), and then to July 8, 2005 in a letter agreement dated as of June 28, 2005 (the “Second Restructure Opportunity Extension Letter”). Thereafter, in a letter agreement dated as of July 8, 2005 (the “Third Modification of First Amendment”), the parties confirmed that the Restructure Opportunity had expired without exercise thereof, and McKesson agreed, despite not having had any obligation to do so, to grant an extension of the “Full Payment Deadline” to the first to occur of August 15, 2005 and certain other events as set forth therein, and to make certain other accommodations to Accentia. Due to various eventsThereafter, you have now requested that McKesson (a) extend the outside date by which Accentia must plus pay all “Obligations” owing to McKesson, including accrued and unpaid interest, all fees, costs and expenses incurred by McKesson in connection with the Obligations, plus any other indebtedness owed by Accentia to McKesson (or to any affiliate of McKesson), McKesson (other than in connection with the Biologics Distribution Agreement Agreement) from August 15, 2005 to September 14, 2005, and (b) to increase the level of “Senior Indebtedness” that Accentia may owe to Laurus Master Fund, Ltd. and to which McKesson’s liens are subordinate from Accentia Biopharmaceuticals, Inc. August 15, 2005 $10,000,000 to $15,000,000 (for principal). This was accomplished, subject to certain terms and conditions, by a letter agreement dated as of Accentia Biopharmaceuticals, Inc. September 13, 2005 August 15, 2005 (the “Fourth Modification of First Amendment”) pursuant to which (among other things, the definition of “Full Payment Deadline” was modified to accomplish the requested extension of time. Due to various events, you have now requested that McKesson further extend the Full Payment Deadline to the outside date of September 28, 2005, subject to up to four additional one week extensions upon the payment of certain sums, and provided no “Events of Default” occur. Based on those requeststhat request, although it has and had no obligation to do so, McKesson is willing to grant the accommodations to Accentia described in Section A below and in Section B below, subject to the full and timely satisfaction of the conditions in Section C B below. Capitalized terms not otherwise defined herein shall have the meanings they were assigned to have in the Assumption Agreement, as amended from time to time time, including by this letter agreement (the “Fourth Fifth Modification of First Amendment”).
Appears in 1 contract
Samples: Assumption of Debt and Security Agreement (Accentia Biopharmaceuticals Inc)
ACKNOWLEDGEMENTS, WAIVERS, ETC. Upon executing where indicated below, Accentia and each of the Guarantors, respectively, shall thereby hereby immediately, and subject to no conditions precedentprecedent including those set forth in Section B above, thereby hereby acknowledge and agree as follows:
1. That as of the date of execution hereof, that certain “Accentia Assumption of Debt and Security Agreement” dated as of December 31, 2003 (as modified or amended in writinga writing signed by McKesson, from time to time, including by the First Amendment, the First Restructure Opportunity Extension Letter, the Second Restructure Opportunity Extension Letter, the Third Modification of First Amendment, the Fourth Modification of First Amendment and this Third Fifth Modification of First Amendment called the “Assumption Agreement”), remains in full force and effect in accordance with its (and their) express written terms, and each and any document or agreement executed by Accentia or any Guarantor in favor of or for the benefit of McKesson (collectively, as modified from time to time called the “Assumption Documents”) remains in full force and effect in accordance with the express written terms of such document or agreement (except as expressly modified or released in a writing signed by McKesson) subject to no defenses, counterclaims or offsets whatsoever, whether known or unknown, and whether legal or equitable in nature;
2. That each Guarantor hereby consents to the modifications of the Assumption Agreement and the First Amendment as described in this Third Fifth Modification of First Amendment (and in each of the prior amendments to the Assumption Agreement) and further agrees that such modifications shall not and do not give rise to any defense, counter claim counterclaim or offset against any obligation that any Guarantor owes to McKesson under any document executed by such Guarantor in favor of McKesson or under applicable law;
3. That HCG II and Accentia hereby agree for the benefit of McKesson that the loans that HCG II has made (or will make, if permitted under the Assumption Documents) to Accentia are subordinate in right of payment (and in lien priority to the extent any loans from HCG II to Accentia are secured by any collateral or assets of Accentia) to the payment in full of the Obligations (other than in connection with the Biologics Distribution Agreement), plus the payment in full of any other indebtedness owed by Accentia to McKesson or to any affiliate of McKesson and that the same is a material inducement to McKesson to enter into this Fifth Accentia Biopharmaceuticals, Inc. September 13, 2005 Modification of First Amendment, and that each Guarantor hereby consents to such subordination;
4. That McKesson had no and has no obligation to provide the accommodations or the modifications set forth in this Third Fifth Modification of First Amendment and in granting the accommodations and/or agreeing to the modifications set forth herein, McKesson is not establishing a pattern and practice or course of dealing of providing future accommodations, extensions or modifications, nor of modifying the Assumption Agreement or any of the Assumption Documents in any manner whatsoever; and
45. Except That once the Principal Payment is paid or any of the subsequent $100,000 payments are made as expressly modified in a writing signed by McKessoncondition to obtaining a Conditional Extension, the Assumption Agreement remains in full force and effect. If the foregoing is agreeable, please execute this Third Modification of First Amendment where indicated below and return it (and all counterparts) to the undersigned. The accommodations and other modifications each such payment shall be effective upon satisfaction final and irrevocable regardless of whether the conditions precedent set forth in Section B above. This is the entire agreement between McKesson and the other undersigned parties regarding the matters set forth herein, superseding all prior discussions, drafts or negotiations. There are no third party beneficiaries of this Third Modification of First Amendment. Best regards, MCKESSON CORPORATION By: /s/ Xxx Xxxxxxx Xxx Xxxxxxx Title: Vice President Financial Services Accentia Biopharmaceuticals, Inc. July 8, 2005 ACCEPTED, ACKNOWLEDGED AND AGREED Full Payment Deadline (also sometimes referred to as of this 8th day of July, 2005. ACCENTIA BIOPHARMACEUTICALS, INC. By: /s/ Xxxx X. Xxxxxx Title: Chief Financial Officer /s/ Xxxxxxx X. X’Xxxxxxx, Xx. M.D. XXXXXXX X. X’XXXXXXX, XX., M.D. REGENT COURT TECHNOLOGIES By: /s/ Xxxxxxx X. X’Xxxxxxx, Xx. M.D. Xxxxxxx X. X’Xxxxxxx, Xx., M.D. Managing Member Acentia Biopharmaceuticals, Inc. July 8, 2005 XXXXXXX CAPITAL GROUP, LLC By: /s/ Xxxxxxx X. X’Xxxxxxx, Xx. M.D. Xxxxxxx X. X’Xxxxxxx, Xx., M.D. Title: Managing Member XXXXXXX CAPITAL GROUP II, LLC By: /s/ Xxxxxxx X. X’Xxxxxxx, Xx. M.D. Xxxxxxx X. X’Xxxxxxx, Xx., M.D. Title: Managing Member /s/ Xxxxxx X. Xxxx, M.D. XXXXXX X. XXXX, M.D. MOAB INVESTMENTS, LP By: /s/ Xxx Xxxx By: Xxx Xxxx Title: President of MOAB Management Co., Inc. Its General Partner August 15, 2005 Accentia Biopharmaceuticals, Inc. 000 Xxxxx Xxxx Xxxx Xxx., Xxxxx 000 Xxxxx, XX 00000 Attn: Xxxxxxx X. X’Xxxxxxx, Xx. M.D. Re: Fourth Modification of “First Amendment to Accentia Assumption of Debt and Security Agreement” dated as of February __, [sic] 2005 (the “First AmendmentFinal Payment Deadline”) Executed by Accentia Biopharmaceuticals, Inc. (“Accentia”) and McKesson Corporation (“or the occurrence of another event or Event of Default terminates McKesson”). Gentlemen: This is the “Fourth Modification of First Amendment” relating to the First Amendment referenced above. Two of the three previous modifications related to your request to extend the deadline by which Accentia was permitted to exercise the so-called “Restructure Opportunity” described in Section 9 of the First Amendment. Thus, although McKesson had no ’s obligation to do so, McKesson extended forbear before the deadline for Accentia to take advantage of and to perform the Restructure Opportunity first to June 30, 2005 in a letter agreement dated as of May 31, 2005 (the “First Restructure Opportunity Extension Letter”), and then to July 8, 2005 in a letter agreement dated as of June 28, 2005 (the “Second Restructure Opportunity Extension Letter”). Thereafter, in a letter agreement dated as of July 8, 2005 (the “Third Modification of First Amendment”), the parties confirmed that the Restructure Opportunity had expired without exercise thereof, and McKesson agreed, despite not having had any obligation to do so, to grant an applicable extension of the “Full Payment Deadline” to the first to occur of August 15, 2005 and certain other events as set forth therein, and to make certain other accommodations to Accentia. Due to various events, you have now requested that McKesson (a) extend the outside date by which Accentia must plus pay all “Obligations” owing to McKesson, including accrued and unpaid interest, all fees, costs and expenses incurred by McKesson in connection with the Obligations, plus any other indebtedness owed by Accentia to McKesson (or to any affiliate of McKesson), other than in connection with the Biologics Distribution Agreement from August 15, 2005 to September 14, 2005, and (b) to increase the level of “Senior Indebtedness” that Accentia may owe to Laurus Master Fund, Ltd. and to which McKesson’s liens are subordinate from Accentia Biopharmaceuticals, Inc. August 15, 2005 $10,000,000 to $15,000,000 (for principal). Based on those requests, although it period has and had no obligation to do so, McKesson is willing to grant the accommodations to Accentia described in Section A below and in Section B below, subject to the full and timely satisfaction of the conditions in Section C below. Capitalized terms not otherwise defined herein shall have the meanings they were assigned to have in the Assumption Agreement, as amended from time to time including by this letter agreement (the “Fourth Modification of First Amendment”)expired.
Appears in 1 contract
Samples: Assumption of Debt and Security Agreement (Accentia Biopharmaceuticals Inc)
ACKNOWLEDGEMENTS, WAIVERS, ETC. Upon executing where indicated below, Accentia and each of the Guarantors, respectively, shall thereby immediately, and subject to no conditions precedent, thereby acknowledge and agree as follows:
1. That as of the date of execution hereof, that certain “Accentia Assumption of Debt and Security Agreement” dated as of December 31, 2003 (as modified or amended in writing, from time to time, including by the First Amendment, the First Restructure Opportunity Extension Letter, the Second Restructure Opportunity Extension Letter, and this Third Modification of First Amendment called the “Assumption Agreement”), remains in full force and effect in accordance with its express written terms, and each and any document or agreement executed by Accentia or any Guarantor in favor of or for the benefit of McKesson remains in full force and effect (except as expressly modified or released in a writing signed by McKesson) subject to no defenses, counterclaims or offsets whatsoever, whether known or unknown, and whether legal or equitable in nature;
2. That each Guarantor hereby consents to the modifications of the First Amendment as described in this Third Modification of First Amendment and further agrees that such modifications shall not and do not give rise to any defense, counter claim or offset against any obligation that any Guarantor owes to McKesson under any document executed by such Guarantor in favor of McKesson or under applicable law;
3. McKesson had no and has no obligation to provide the accommodations or the modifications set forth in this Third Modification of First Amendment and in granting the accommodations and/or agreeing to the modifications set forth herein, McKesson is not establishing a pattern and practice or course of dealing of providing future accommodations, extensions or modifications, nor of modifying the Assumption Agreement in any manner whatsoever; and
4. Except as expressly modified in a writing signed by McKesson, the Assumption Agreement remains in full force and effect. If the foregoing is agreeable, please execute this Third Modification of First Amendment where indicated below and return it (and all counterparts) to the undersigned. The accommodations and other modifications shall be effective upon satisfaction of the conditions precedent set forth in Section B above. This is the entire agreement between McKesson and the other undersigned parties regarding the matters set forth herein, superseding all prior discussions, drafts or negotiations. There are no third party beneficiaries of this Third Modification of First Amendment. Best regards, MCKESSON CORPORATION By: /s/ Xxx Xxxxxxx Xxx Xxxxxxx Title: Vice President Financial Services Accentia Biopharmaceuticals, Inc. July 8, 2005 ACCEPTED, ACKNOWLEDGED AND AGREED as of this 8th day of July, 2005. ACCENTIA BIOPHARMACEUTICALS, INC. By: /s/ Xxxx X. Xxxxxx Title: Chief Financial Officer /s/ Xxxxxxx X. X’Xxxxxxx, Xx. M.D. XXXXXXX X. X’XXXXXXX, XX., M.D. REGENT COURT TECHNOLOGIES By: /s/ Xxxxxxx X. X’Xxxxxxx, Xx. M.D. Xxxxxxx X. X’Xxxxxxx, Xx., M.D. Managing Member Acentia Biopharmaceuticals, Inc. July 8, 2005 XXXXXXX CAPITAL GROUP, LLC By: /s/ Xxxxxxx X. X’Xxxxxxx, Xx. M.D. Xxxxxxx X. X’Xxxxxxx, Xx., M.D. Title: Managing Member XXXXXXX CAPITAL GROUP II, LLC By: /s/ Xxxxxxx X. X’Xxxxxxx, Xx. M.D. Xxxxxxx X. X’Xxxxxxx, Xx., M.D. Title: Managing Member /s/ Xxxxxx X. Xxxx, M.D. XXXXXX X. XXXX, M.D. MOAB INVESTMENTS, LP By: /s/ Xxx Xxxx By: Xxx Xxxx Title: President of MOAB Management Co., Inc. Its General Partner August 15, 2005 Accentia Biopharmaceuticals, Inc. 000 Xxxxx Xxxx Xxxx Xxx., Xxxxx 000 Xxxxx, XX 00000 Attn: Xxxxxxx X. X’Xxxxxxx, Xx. M.D. Re: Fourth Modification of “First Amendment to Accentia Assumption of Debt and Security Agreement” dated as of February __, [sic] 2005 (the “First Amendment”) Executed by Accentia Biopharmaceuticals, Inc. (“Accentia”) and McKesson Corporation (“McKesson”). Gentlemen: This is the “Fourth Modification of First Amendment” relating to the First Amendment referenced above. Two of the three previous modifications related to your request to extend the deadline by which Accentia was permitted to exercise the so-called “Restructure Opportunity” described in Section 9 of the First Amendment. Thus, although McKesson had no obligation to do so, McKesson extended the deadline for Accentia to take advantage of and to perform the Restructure Opportunity first to June 30, 2005 in a letter agreement dated as of May 31, 2005 (the “First Restructure Opportunity Extension Letter”), and then to July 8, 2005 in a letter agreement dated as of June 28, 2005 (the “Second Restructure Opportunity Extension Letter”). Thereafter, in a letter agreement dated as of July 8, 2005 (the “Third Modification of First Amendment”), the parties confirmed that the Restructure Opportunity had expired without exercise thereof, and McKesson agreed, despite not having had any obligation to do so, to grant an extension of the “Full Payment Deadline” to the first to occur of August 15, 2005 and certain other events as set forth therein, and to make certain other accommodations to Accentia. Due to various events, you have now requested that McKesson (a) extend the outside date by which Accentia must plus pay all “Obligations” owing to McKesson, including accrued and unpaid interest, all fees, costs and expenses incurred by McKesson in connection with the Obligations, plus any other indebtedness owed by Accentia to McKesson (or to any affiliate of McKesson), other than in connection with the Biologics Distribution Agreement from August 15, 2005 to September 14, 2005, and (b) to increase the level of “Senior Indebtedness” that Accentia may owe to Laurus Master Fund, Ltd. and to which McKesson’s liens are subordinate from Accentia Biopharmaceuticals, Inc. August 15, 2005 $10,000,000 to $15,000,000 (for principal). Based on those requests, although it has and had no obligation to do so, McKesson is willing to grant the accommodations to Accentia described in Section A below and in Section B below, subject to the full and timely satisfaction of the conditions in Section C below. Capitalized terms not otherwise defined herein shall have the meanings they were assigned to have in the Assumption Agreement, as amended from time to time including by this letter agreement (the “Fourth Modification of First Amendment”).
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Samples: Assumption of Debt and Security Agreement (Accentia Biopharmaceuticals Inc)
