Exhibit 10.68 (b)
THIRD AMENDMENT TO
REVOLVING CREDIT, TERM LOAN, EQUIPMENT
ACQUISITION TERM LOAN AND SECURITY AGREEMENT
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THIS THIRD AMENDMENT TO REVOLVING CREDIT, TERM LOAN, EQUIPMENT ACQUISITION
TERM LOAN AND SECURITY AGREEMENT (the "Amendment") is entered into as of January
6, 2005 to be effective retroactively to the Effective Date (as defined herein)
by and between CAPITALSOURCE FINANCE LLC, a Delaware limited liability company
("Agent"), the Lenders party thereto and each of ADVANCED NUTRACEUTICALS, INC.,
a Texas corporation ("Parent"), BACTOLAC PHARMACEUTICAL INC., a Delaware
corporation ("Bactolac"), and NIB, INC. (f/k/a ANI PHARMACEUTICALS, INC.), a
Mississippi corporation ("NIB") and together with Parent and Bactolac, each a
"Borrower" and collectively, the "Borrowers"). Capitalized terms used and not
defined herein shall have the meanings assigned to such terms in the Agreement.
A. WHEREAS, Agent, Lenders and Borrowers are parties to that certain
Revolving Credit, Term Loan, Equipment Acquisition Term Loan and Security
Agreement dated as of March 21, 2003 as amended by a First Amendment dated as of
December 31, 2003 and a Second Amendment dated March 23, 2004 (as heretofore and
hereafter amended, supplemented, modified and/or restated from time to time,
collectively the "Agreement"), pursuant to which the Lenders made Advances and
Loans to the Borrowers;
B. WHEREAS, Borrowers have requested that Agent and Lenders agree to amend
the Tangible Net Worth covenant set forth in Section 1 to Annex I to the
Agreement to correct an error made with respect thereto in the Second Amendment;
NOW, THEREFORE, in consideration of the terms and conditions, premises and
the other mutual covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency are hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. Amendments. The sections, definitions, schedules, annexes and
exhibits, as applicable, of and to the Agreement referenced and/or set forth
below are hereby amended as follows:
(a) Amendment to Annex I. Retroactive to the Effective Date, Section 1
to Annex I of the Agreement is hereby deleted and replaced in its entirety
to read as follows:
"1) Tangible Net Worth
As measured on the last day of each fiscal year of
Borrowers, the Tangible Net Worth shall not be less than the
following:
Test Date: Minimum Tangible Net Worth:
September 30, 2004 $4,500,000
September 30, 2005 $5,000,000"
SECTION 2. Effective Date. Upon receipt by Agent of a duly executed copy of
this Amendment by each Borrower, this Amendment shall be deemed to be effective
as of September 30, 2004 (the "Effective Date").
SECTION 3. Agreement in Full Force and Effect as Amended. Except as
specifically amended hereby, the Agreement and other Loan Documents shall remain
in full force and effect and hereby are ratified and confirmed as so amended.
This Amendment shall not constitute a novation, satisfaction and accord, cure,
release and/or satisfaction of the Agreement and/or other Loan Documents, but
shall constitute an amendment thereof. The parties hereto agree to be bound by
the terms and conditions of the Agreement and Loan Documents as amended by this
Amendment, as though such terms and conditions were set forth herein and therein
in full. Each reference in the Agreement to "this Agreement," "hereunder,"
"hereof," "herein" or words of similar import shall mean and be a reference to
the Agreement as amended by this Amendment, and each reference herein or in any
other Loan Document or any other document or instrument to the Agreement shall
mean and be a reference to the Agreement as amended and modified by this
Amendment. Each reference in the Agreement and/or other Loan Documents or any
other document or instrument to any Loan Documents or words of similar import
shall mean and be a reference to the Loan Documents as amended hereby
SECTION 4. Representations.
Each Borrower hereby represents and warrants to Agent as follows as of the
date hereof and as of the Effective Date: (i) it is duly incorporated, 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 to which it is a party are within its powers, have been duly
authorized, and do not contravene (A) its articles of incorporation 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; (vi) it is in
compliance with all covenants and agreements in the Loan Documents and it is not
in default under the Agreement or any other Loan Document and no Default or
Event of Default exists, has occurred and is continuing or would result by the
execution, delivery or performance of this Amendment, including, without
limitation, any violation or breach of or Event of Default with respect to Annex
I of the Agreement, and (vii) the representations and warranties contained in
the Loan Documents are true and correct in all material respects as of the date
hereof and as of the Effective Date as if made on the date hereof, except for
such representations and warranties limited by their terms to a specific date.
SECTION 5. Miscellaneous.
(a) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, be deemed to be an amendment or
modification of, or operate as a waiver of, any provision of the Agreement or
any other Loan Document or any right, power or remedy of Agent, nor constitute a
waiver of any provision of the Agreement or any other Loan Document, or any
other document, instrument and/or agreement executed or delivered in connection
therewith or of any Default or Event of Default under any of the foregoing, in
each case whether arising before or after the date hereof or as a result of
performance hereunder or thereunder. This Amendment shall not preclude the
future exercise of any right, remedy, power or privilege available to Agent
whether under the Agreement, other Loan Documents, at law or otherwise.
(b) This Amendment may be executed in any number of counterparts (including
by facsimile), and by the different parties hereto or thereto on the same or
separate counterparts, each of which shall be deemed to be an original
instrument but all of which together shall constitute one and the same
agreement. Each party agrees that it will be bound by its own facsimile
signature and that it accepts the facsimile signature of each other party. The
descriptive headings of the various sections of this Amendment are inserted for
convenience of reference only and shall not be deemed to affect the meaning or
construction of any of the provisions hereof or thereof. Whenever the context
and construction so require, all words herein 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.
(c) This Amendment may not be changed, amended, restated, waived,
supplemented, discharged, canceled, terminated or otherwise modified orally or
by any course of dealing or in any manner other than as provided in the
Agreement or the applicable Loan Document. This Amendment shall be considered
part of the Agreement and shall be a Loan Document for all purposes under the
Agreement and other Loan Documents.
(d) This Amendment, the Agreement, and the Loan Documents constitute the
final, entire agreement and understanding between the parties with respect to
the subject matter hereof and thereof and may not be contradicted by evidence of
prior, contemporaneous or subsequent oral agreements between the parties, and
shall be binding upon and inure to the benefit of the successors and assigns of
the parties hereto and thereto. There are no unwritten oral agreements between
the parties with respect to the subject matter hereof and thereof. If any
provision of this Amendment is adjudicated to be invalid under applicable laws
or regulations, such provision shall be inapplicable to the extent of such
invalidity without affecting the validity or enforceability of the remainder of
this Amendment which shall be given effect so far as possible.
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(e) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE CHOICE OF LAW PROVISIONS SET FORTH IN THE AGREEMENT AND SHALL BE
SUBJECT TO THE WAIVER OF JURY TRIAL AND NOTICE PROVISIONS OF THE AGREEMENT.
(f) No Borrower may assign, delegate or transfer this Amendment or any of
its rights or obligations hereunder or thereunder and any delegation, transfer
or assignment in violation hereof shall be null and void. 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 other Person other
than Agent and each Lender. Nothing contained in this Amendment shall be
construed as a delegation to Agent of Borrowers' duties of performance,
including, without limitation, any duties under any account or contract in which
Agent has a security interest or Lien. This Amendment shall be binding upon
Borrowers and Agent and Lenders and their respective successors and permitted
assigns. Agent's and Lenders' ability to assign, sell or transfer all of any
part of this Amendment and shall be governed by the Agreement.
(g) Each Borrower hereby (i) consents to the execution and delivery of this
Amendment by the other Borrowers, (ii) agrees that this Amendment and shall not
limit or diminish the obligations of the subject Borrower under the Loan
Documents, (iii) reaffirms its obligations under each of the Loan Documents to
which it is a party, and (iv) agrees that each of such Loan Documents remain in
full force and effect and are hereby ratified and confirmed. All representations
and warranties made in this Amendment and shall survive the execution and
delivery of this Amendment and no investigation by Agent shall affect such
representations or warranties or the right of Agent to rely upon them.
(h) Each Borrower shall execute and deliver such other documents,
certificates and/or instruments and take such other actions as Agent may
reasonably request in order more effectively to consummate the transactions
contemplated hereby.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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SIGNATURE PAGE TO
THIRD AMENDMENT TO REVOLVING CREDIT, TERM LOAN, EQUIPMENT
ACQUISITION TERM LOAN AND SECURITY AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Third Amendment To
Revolving Credit, Term Loan, Equipment Acquisition Term Loan And Security
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first written above to be effective on and as of the Effective
Date.
BORROWERS: ADVANCED NUTRACEUTICALS, INC.,
a Texas corporation
By: /s/ Xxxxxxx X. XxXxxxxxx
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Name: Xxxxxxx X. XxXxxxxxx
Title: Senior Vice President - Finance
BACTOLAC PHARMACEUTICAL, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. XxXxxxxxx
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Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President
NIB, INC. (f/k/a/ ANI PHARMACEUTICALS, INC.),
a Mississippi corporation
By: /s/ Xxxxxxx X. XxXxxxxxx
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Name: Xxxxxxx X. XxXxxxxxx
Title: President
AGENT AND LENDER: CAPITALSOURCE FINANCE LLC
By: /s/
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Name:
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Title:
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