EXHIBIT 10.1
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CITIZENS BANK OF MASSACHUSETTS FIRST AMENDMENT TO CREDIT AGREEMENT
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This First Amendment to Credit Agreement is made as of the 21st day of
February, 2003, by and between the following parties:
Citizens Bank of Massachusetts (the "Bank"), a
Massachusetts banking corporation having a principal
place of business at 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000; and
Able Laboratories, Inc. ( the "Borrower"), a corporation
duly organized and existing under the laws of the State
of Delaware and having its corporate offices and
principal place of business at 0 Xxxxxxxxx Xxxxx, Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000;
in consideration of the mutual covenants and benefits to be derived herefrom.
W I T N E S S E T H:
A. On or about October 24, 2002, the Borrower and the Bank entered into a
certain non-restoring equipment loan facility in the maximum principal amount of
Four Million Dollars ($4,000,000.00) (the "Non-Restoring Loan Facility") as
evidenced by, among other things, a certain Credit Agreement (the "Credit
Agreement") and a certain Non-Restoring Credit Facility Note dated October 24,
2002 in the original principal amount of $1,700,000.00 (the "Non-Restoring
Credit Facility Note") and a certain Master Note dated October 24, 2002 in the
maximum principal amount of $2,300,000.00 (the "Original Master Note").
B. The Borrower has requested that the Non-Restoring Loan Facility be
increased to an amount up to Five Million Eight Hundred Thousand Dollars
($5,800,000.00) and that the Bank establish a revolving line of credit facility
in the maximum principal amount of Four Million Dollars ($4,000,000.00) for the
Borrower's working capital needs including the issuance of standby letters of
credit. The Bank is willing to so accommodate the Borrower's requests based upon
and subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Borrower and the Bank agree as follows:
1. DEFINITIONS. Capitalized terms used herein without definition and
defined in the Credit Agreement shall have the same respective meanings herein
as therein, unless the context otherwise requires.
2. ADDITIONAL DEFINITIONS. The following terms shall have the corresponding
meanings ascribed to each of them below, and such terms shall be inserted
alphabetically in Section 1 of the Credit Agreement. Additionally, any term
appearing below that also appears in the Credit Agreement shall have the meaning
given in this First Amendment only, and the
corresponding definition for such term as defined in the Credit Agreement shall
be deleted in its entirety and replaced with the definition for such term as set
forth below in its place and stead.
ACCOUNTS and Accounts Receivable include, without limitation,
"accounts" and "accounts receivable" as such terms are defined in
the UCC.
ADVANCE and Advances includes the loans made by the Bank to the
Borrower pursuant to the Non-Restoring Credit Facility and the
Revolving Credit Facility.
APPLICABLE MARGIN shall be determined, for computation of the
applicable spread to the LIBOR Rate and the LIBOR Advantage Rate for
Revolving Credit Loans and of the applicable Unused Fee, by
reference to the following table:
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Borrower's Leverage Ratio Applicable Margin for Unused Fee
as of computation date: interest rate computation
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If Leverage Ratio is less than 1.0:1.0,
then... 150 basis points 25 basis points
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If Leverage Ratio is equal to or greater
than 1.0:1.0 but less than 2.0:1.0, then... 200 basis points 37.5 basis points
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If Leverage Ratio is greater than 2.0:1.0,
then... 250 basis points 50 basis points
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BORROWING BASE shall mean the sum of: (A) an amount equal to eighty
percent (80%) of Eligible Receivables, plus (B) an amount equal to
fifty percent (50%) of Eligible Inventory.
COLLATERAL shall mean the assets of the Borrower in which the Bank
has been granted a first priority security interest.
ELIGIBLE INVENTORY shall mean Inventory owned by the Borrower
consisting of finished goods and raw materials but excluding
work-in-process, stale goods, and dated finished goods, valued (net
of reserves), at the lower of market value or the Borrower's cost,
on a first-in, first-out basis which is: initially and at all times
until sold, in first-class condition, merchantable and saleable
through normal trade channels; at a location directly leased or
owned by Borrower (and, if applicable, as to which Bank shall have
received, if required in its reasonable discretion, a landlord's
waiver in a form acceptable to the Bank); covered by insurance
naming Bank as loss payee in accordance with the Security Agreement;
subject to a perfected first-priority security interest in favor of
Bank; owned by the Borrower free and clear of any lien except in
favor of Bank or as permitted under this Agreement and not subject
to any judgment, order or decree which restricts or prevents the
Borrower from selling the same; and which has not been designated by
Bank in its reasonable discretion as unacceptable for any reason;
provided, further, that Inventory shall be excluded for purposes of
determining the Borrowing Base if such items are located at a third
party manufacturer or distributor and not in the immediate
possession of the Borrower.
ELIGIBLE RECEIVABLES means such of the Borrower's Accounts and
Accounts Receivable as arise in the ordinary course of the
Borrower's business for goods sold by the Borrower (net of any
reserves for chargebacks, rebates and/or pricing adjustments of any
kind), which Accounts and Accounts Receivable have reasonably been
determined by the Bank to be satisfactory and are owed to the
Borrower by such of the Borrower's trade customers as the Bank
determines to be satisfactory, in the Bank's reasonable discretion
in each instance. Eligible Receivables shall not include the
following Accounts and Accounts Receivable:
(a) any which is evidenced by promissory notes or chattel
paper;
(b) any which is owed by employees or Affiliates of the
Borrower;
(c) any which is more than ninety (90) days old as measured
from date of invoice;
(d) any which is owed by an account debtor whose principal
place of business is not within the United States;
(e) any which arises out of any sale made on a "xxxx and
hold," dating, or delayed shipping basis;
(f) any as to which the account debtor holds or is entitled
to any claim, counterclaim, or set off, except for
chargeables, rebates and/or pricing adjustments
occurring in the ordinary course of the Borrower's
business and reflected in the Borrower's calculation of
net accounts receivable as provided above;
(g) any which is subject to a lien in favor of any person or
entity other than the Bank;
(h) any which is owed by the United States federal
government unless properly perfected with an assignment
of claims in accordance with applicable law;
(i) any on which the Bank does not have a properly perfected
first security interest;
(j) any which are due from any single account debtor if more
than twenty five percent (25%) of the aggregate amount
of all Accounts Receivable owing from such account
debtor is more than ninety (90) days old as measured
from date of invoice;
(k) any which are due from any single account debtor if such
amount comprises more than ten percent (10%) of all
Eligible Receivables, except in the cases of Cardinal
Distribution, L.P., AmerisourceBergen Corporation,
McKesson Corporation and any other account debtor, if
any, accepted by the Bank in writing and in the Bank's
sole discretion, each of whom shall not be subject to
this anti-concentration provision; and
(l) any which the Bank in its reasonable discretion
considers unacceptable for any reason, based on the
financial condition of such account debtor or otherwise.
INVENTORY means "inventory" as such term is defined in the UCC.
LEVERAGE RATIO means, as of the applicable measurement date, that
quotient equal to Total Funded Debt, divided by EBITDA for the
trailing twelve (12) month period ending on the measurement date.
LOAN or LOANS means, collectively, any Advances made pursuant to the
Non-Restoring Credit Facility and the Revolving Credit Facility.
LOAN REQUEST shall have the meaning given that term in Section
3.1(a) of the Agreement.
MAXIMUM REVOLVING CREDIT FACILITY LIMIT shall have the meaning given
such term in Section 2A.1 of this Agreement.
NON-RESTORING FACILITY NOTES shall mean the Non-Restoring Credit
Facility Note, the Master Note, all Sub-Notes evidencing the
Non-Restoring Credit Facility as described in Section 2.3 hereof.
NOTE or NOTES shall mean collectively the Non-Restoring Facility
Notes and the Revolving Credit Note.
REVOLVING CREDIT FACILITY shall have the meaning given that term in
Section 2A.1 of this Agreement.
REVOLVING CREDIT Loans means revolving credit Advances made or to be
made by the Bank to the Borrower pursuant to Section 2A hereof.
REVOLVING CREDIT NOTE means the Revolving Credit Note made by the
Borrower and delivered to the Bank evidencing the Revolving Credit
Facility.
REVOLVING CREDIT TERMINATION DATE shall have the meaning given to
such term in Section 2A.1 of this Agreement.
SUB-NOTES means the promissory notes executed and delivered by the
Borrower to the Bank from time to time to evidence the Advances made
pursuant to the Non-Restoring Credit Facility during a specific
timeframe which are to be amortized as a separate tranche in
accordance with Section 2.3 of this Agreement.
TANGIBLE CAPITAL BASE means, for the applicable period, Tangible Net
Worth plus Subordinated Debt.
TANGIBLE NET WORTH means, for the applicable period, Stockholders'
Equity, minus Intangible Assets.
TOTAL FUNDED DEBT shall mean the aggregate of all Advances
outstanding under all Indebtedness including, but not limited to,
any capital leases, the Non-Restoring Credit Facility and the
Revolving Credit Facility.
UNUSED FEE shall have the meaning given such term in Section 2A.7 of
this Agreement.
3. INCREASE OF NON-RESTORING CREDIT FACILITY. The Credit Agreement
is hereby amended so as to increase the Maximum Non-Restoring Credit Facility
Limit from Four Million Dollars ($4,000,000.00) to Five Million Eight Hundred
Thousand Dollars ($5,800,000.00). Specifically, Section 2 of the Credit
Agreement is hereby modified by deleting the current text in its entirety and
inserting the following text in its place and stead:
"SECTION 2. THE NON-RESTORING CREDIT FACILITY
2.1 THE NON-RESTORING CREDIT FACILITY. Pursuant to the terms and
conditions of this Agreement and upon satisfaction of the conditions
precedent referred to in Section 5 hereof, the Bank agrees to make
available to the Borrower, and the Borrower may borrow from the
Bank, Advances under a non-restoring equipment line of credit
facility (the "Non-Restoring Credit Facility") in an aggregate
amount not to exceed the sum of Five Million Eight Hundred Thousand
Dollars ($5,800,000.00) (the "Maximum Non-Restoring Credit Facility
Limit"), which Non-Restoring Credit Facility shall be payable as
hereinafter provided. Advances under the Non-Restoring Credit
Facility may be made during the period from the date hereof until
April 24, 2004 (as such date may be extended in writing from time to
time in the Bank's sole and absolute discretion, the "Non-Restoring
Credit Facility Termination Date"); provided, however, that once
repaid, amounts borrowed under the Non-Restoring Credit Facility may
not thereafter be reborrowed.
2.2 ADVANCES. The Advances made by the Bank to the Borrower pursuant
to the Non-Restoring Credit Facility shall be used to refinance the
purchase of the IDR Bonds, to refinance existing equipment loans, to
finance leasehold improvements and to assist the Borrower's purchase
of equipment. The Non-Restoring Credit Facility may be made in
multiple Advances not exceeding in the aggregate Maximum
Non-Restoring Credit Facility Limit. The initial advance shall not
exceed One Million Seven Hundred Thousand Dollars ($1,700,000.00)
(the "Initial Advance Amount") and the subsequent advances shall not
exceed Four Million One Hundred Thousand Dollars ($4,100,000.00)
(the "Subsequent Advance Amount"). The Borrower may, from time to
time, request Advances under the Non-Restoring Credit Facility by
presenting to the Bank: (i) in the case of an equipment purchase:
(a) an invoice from the vendor of the equipment proposed to be
financed in a form acceptable to the Bank, which includes, without
limitation, the purchase price of such equipment, including all
accessions thereto, net of all discounts, rebates and other dealer
or manufacturer incentives; and (b) a certificate of origin,
certificate of title, xxxx of sale or other documentation reasonably
satisfactory to the Bank evidencing the condition of the equipment
(items (a) and (b) are hereinafter referred to collectively as the
"Equipment Documentation"); (ii) in the case of a repurchase of the
IDR Bonds, such documents as the Bank may reasonably require
including, but not limited to, a description of the specific bonds
being repurchased and a statement from the IDR Bond trustee
indicating the amount necessary to redeem such bonds or, (iii) in
the case of a leasehold improvement: (a) a budget for completing
such improvement; and (b) such other documents that the bank may
otherwise require including, but not limited to, copies of contracts
(items (a) and (b) are hereinafter
referred to collectively as the "Leasehold Improvement
Documentation"). The principal amount of any advance made under the
Non-Restoring Credit Facility for the purpose of assisting the
Borrower's purchase of equipment or financing leasehold improvements
shall not exceed eighty percent (80%) of the net purchase price
(exclusive of any transportation or installation charges) of the
equipment purchased as evidenced by the Equipment Documentation or
eighty percent (80%) of the net cost of such leasehold improvement
as evidenced by the Leasehold Improvement Documentation. Each
Advance made by the Bank to the Borrower pursuant to the
Non-Restoring Credit Facility shall be in a minimum amount of Fifty
Thousand Dollars ($50,000.00).
2.3 THE NON-RESTORING FACILITY NOTES.
(a) The Advances made pursuant to the Non-Restoring Credit Facility
shall be evidenced by and payable as provided herein and in
accordance with the promissory notes made by the Borrower payable to
the Bank. The Initial Advance Amount is evidenced by the
Non-Restoring Credit Facility Note dated October 24, 2002, a copy of
which is annexed hereto as Exhibit 2.3 - A (the "Non-Restoring
Credit Facility Note"). The Subsequent Advance Amount shall be
evidenced by an Amended and Restated Master Note (the "Master Note")
to replace and supersede a Master Note dated October 24, 2002 in the
original principal amount of $2,300,000.00, which Amended and
Restated Master Note shall be substantially the form of Exhibit 2.3
- B annexed hereto. Furthermore, the Advances made from time to time
under the Master Note shall be bundled into tranches on a quarterly
basis for purposes of amortizing such Advances, with such tranches
being evidenced by Sub-Notes to be executed and delivered by the
Borrower on a quarterly basis upon the form of Sub-Note annexed
hereto as Exhibit 2.3 - C (each being a "Sub-Note" and collectively
being the "Sub-Notes"), and with appropriate insertions being made
in such Sub-Notes to reflect the amount, date, maturity date,
interest rate and amount of monthly installment of principal and
interest applicable to such tranche for such Sub-Note. The term of
the Non-Restoring Credit Facility Note shall be for a period of not
more than five (5) years (the "Term Period"); the Term of the Master
Note shall be until the Non-Restoring Credit Facility Termination
Date (at which time any balance outstanding thereunder shall be
transferred to a new Sub-Note) (the "Master Note Term Period"); and
the term of the each Sub-Note shall be for a period of five (5)
years with an amortization period equal to five (5) years.
(b) The Non-Restoring Credit Facility Note and interest thereon,
calculated as set forth herein, shall be payable in consecutive
installment payments of principal plus interest (with the frequency
of such installment payments to be monthly or as otherwise
prescribed in the Non-Restoring Credit Facility Note dependent upon
the rate option selected by the Borrower), with each of the
payments, other than the last payment, to consist of principal in an
amount prescribed therein, plus interest calculated as set forth
herein, and the final payment to consist of the entire unpaid
principal balance of the Non-Restoring Credit Facility Note, plus
accrued interest thereon. Unless otherwise expressly provided in the
Non-Restoring Credit Facility Note, the first of such payments of
interest in respect of any Advance is to be made on the date which
is one month from the date of this Agreement and the remainder of
such payments are to be made on the corresponding date of each
succeeding month thereafter until the Non-Restoring Credit Facility
Note is paid in full.
(c) The Master Note and interest thereon, calculated as set forth
herein, shall be payable in consecutive installment payments of
interest (with the frequency of such installment payments to be
monthly or as otherwise prescribed in the Master Note dependent upon
the rate option selected by the Borrower), until the earlier to
occur of either: (i) An Advance being transferred to a Sub-Note or
(ii) the Non-Restoring Credit Facility Termination Date whereupon
the Borrower shall execute and deliver a Sub-Note for the
outstanding principal balance and satisfy all accrued interest.
(d) The Borrower shall execute and deliver Sub-Notes for all
Advances made under the Master Note on a quarterly basis commencing
as of April 1, 2003, and on each of July 1, 2003, October 1, 2003,
January 1, 2004 and the Non-Restoring Credit Facility Termination
Date (so long as there is any amount outstanding under the Master
Note at such time), each of which Sub-Notes shall provide for the
Borrower to make consecutive monthly payments of principal plus
interest (with the frequency of such installment payments to be
monthly or as otherwise prescribed in the Master Note dependent upon
the rate option selected by the Borrower), with each of the
payments, other than the last payment, to consist of principal in an
amount
equal to the product of (i) the principal amount of all outstanding
Advances made under the Master Note, multiplied by (ii) a fraction,
the numerator of which shall be 1 and the denominator of which shall
be sixty (60), plus interest calculated as set forth herein, and the
final payment to consist of the entire unpaid principal balance
thereof, plus accrued interest thereon no later than five years
after the date of each such Sub-Note.
(e) The Borrower irrevocably authorizes the Bank to make or cause to
be made, at the time of receipt of any payment of principal on the
Non-Restoring Facility Notes, an appropriate notation on the Bank's
books and records reflecting the receipt of such payment. The
outstanding amount of the Non-Restoring Credit Facility set forth on
the Bank's books and records shall be prima facie evidence of the
principal amount thereof owing and unpaid to the Bank, but the
failure to record, or any error in so recording, any such amount on
the Bank's books and records shall not limit or otherwise affect the
obligations of the Borrower hereunder or under the Non-Restoring
Facility Notes to make payments of principal or interest when due.
2.4 INTEREST ON ADVANCES MADE PURSUANT TO THE NON-RESTORING CREDIT
FACILITY. Except as otherwise provided in Section 3.4, Advances made
pursuant to the Non-Restoring Credit Facility shall bear interest at
the per annum rate during each Interest Period at the rate selected
by the Borrower from the interest rate options provided below:
(a) To the extent that an Advance under the Non-Restoring Credit
Facility bears interest by reference to the Prime Rate, as may be
selected by the Borrower in accordance with Section 3.1 hereof, such
Advance shall bear interest during the applicable Interest Period at
a per annum rate equal to the aggregate of the Prime Rate as then in
effect, plus fifty (50) basis points; and
(b) To the extent that an Advance under the Non-Restoring Credit
Facility bears interest by reference to either the LIBOR Rate or the
LIBOR Advantage Rate, as may be selected by the Borrower in
accordance with Section 3.1 hereof, such Advance shall bear interest
during the applicable Interest Period at a per annum rate equal to
the aggregate of the LIBOR Rate or the LIBOR Advantage Rate as then
in effect, plus two hundred and fifty (250) basis points."
4. ESTABLISHMENT OF THE REVOLVING CREDIT FACILITY. The Credit
Agreement is hereby amended to provide for the establishment of the Revolving
Credit Facility by inserting the following text immediately following Section 2
of the Credit Agreement:
"SECTION 2A. THE REVOLVING CREDIT FACILITY
2A.1 THE REVOLVING CREDIT FACILITY. Pursuant to the terms of this
Agreement and upon the satisfaction of the conditions precedent
referred to in Section 5 hereof, the Bank agrees to make available
to the Borrower, and the Borrower may borrow from the Bank, Advances
for working capital purposes (the "Revolving Credit Facility") not
to exceed the lesser of: (A) the Borrowing Base, and (B) the
principal amount of Four Million Dollars ($4,000,000.00) (the
"Maximum Revolving Credit Facility Amount") (such lesser amount
being defined herein as the "Maximum Revolving Credit Facility
Limit"), less in each instance the aggregate amount any letters of
credit issued for the benefit of the Borrower, it being acknowledged
and agreed that the aggregate face amount of any such letters of
credit shall not exceed One Million Dollars in the aggregate at any
one time. The Revolving Credit Facility shall be evidenced by the
Revolving Credit Note, which shall be in substantially the form of
Exhibit 2A.1 annexed hereto. If any Advances are made during the
period from the date hereof until June 30, 2004 (as such date may be
extended in writing from time to time in the Bank's sole and
absolute discretion, the "Revolving Credit Termination Date"),
unless an Event of Default occurs, the Borrower may borrow, repay
and reborrow in accordance with this Agreement. Characterization of
any Account Receivable due from an account debtor as an Eligible
Receivable in determining the Borrowing Base shall not be deemed a
determination by Bank as to its actual value nor in any way obligate
Bank to accept any Account Receivable subsequently arising from such
account debtor to be, or to continue to deem such Account Receivable
to be, an Eligible Receivable; it is the Borrower's responsibility
to determine the creditworthiness of account debtors and all risks
concerning the same and collection of Accounts Receivable are with
Borrower.
2A.2 ADVANCES. The Revolving Credit Facility shall be evidenced by,
among other things, the Revolving Credit Note, and interest on each
Advance made pursuant to the Revolving Credit Facility shall be paid
in arrears. All unpaid principal amounts due under all Advances made
pursuant to the Revolving Credit Facility, plus accrued interest and
costs thereon, shall be paid in full and satisfied on the earlier
of: (i) the Revolving Credit termination Date, or (ii) the
occurrence of an Event of Default hereunder. Requests for Advances
shall be made pursuant to Section 3.1 of this Agreement.
2A.3 INTEREST ON REVOLVING CREDIT FACILITY ADVANCES. Except as
otherwise provided in Section 3.4, Advances made pursuant to the
Revolving Credit Facility shall bear interest at the per annum rate
during each Interest Period at the rate selected by the Borrower
from the interest rate options provided below:
(a) To the extent that an Advance under the Revolving Credit
Facility bears interest by reference to the Prime Rate, as may be
selected by the Borrower in accordance with Section 3.1 hereof, such
Advance shall bear interest during the applicable Interest Period at
a per annum rate equal to the Prime Rate as then in effect; and
(b) To the extent that an Advance under the Revolving Credit
Facility bears interest by reference to either the LIBOR Rate or the
LIBOR Advantage Rate, as may be selected by the Borrower in
accordance with Section 3.1 hereof, such Advance shall bear interest
during the applicable Interest Period at a per annum rate equal to
the aggregate of the LIBOR Rate or the LIBOR Advantage Rate as then
in effect, plus the Applicable Margin.
2A.4 PAYMENTS OF PRINCIPAL AND INTEREST. Interest accruing on
Advances made under the Revolving Credit Note shall be payable in
accordance with the Revolving Credit Note. If not sooner paid, all
principal and all accrued and unpaid interest shall be due and
payable on the earlier of: (i) the Revolving Credit Termination
Date; or (ii) the occurrence of an Event of Default hereunder.
2A.5 MANDATORY PREPAYMENT. If, at any time, the aggregate principal
amount of all Advances made and outstanding under the Revolving
Credit Facility shall exceed the Maximum Revolving Credit Limit, the
Borrower shall immediately prepay so much of the outstanding
principal balance, together with accrued interest on the portion of
principal so prepaid, as shall be necessary in order that the unpaid
principal balance of all Advances outstanding under the Revolving
Credit Facility, after giving effect to such prepayments, shall not
be in excess of the Maximum Revolving Credit Limit. Any such
prepayment will, at the option of the Bank, be applied first to the
payment of all costs and expenses incurred by the Bank and arising
out of this Agreement, the Revolving Credit Note or any Related
Agreement and which has not been paid or reimbursed to the Bank,
second to accrued interest to the date of the prepayment, and third
to the outstanding principal under the Revolving Credit Facility.
2A.6 LETTERS OF CREDIT. Subject to the terms of this Agreement, so
long as there has not theretofore occurred an Event of Default, the
Borrower may request that the Bank issue letters of credit on the
Borrower's account for purposes reasonably acceptable to the Bank,
such letters of credit not to exceed One Million Dollars
($1,000,000.00) in the aggregate at any one time and such face
amounts to be deducted from the Borrower's availability under the
Revolving Credit Facility. The Borrower hereby agrees to reimburse
the Bank for all draws made under such letters of credit, plus
interest and costs including attorneys fees. Each letter of credit
request shall be accompanied by an application completed by the
Borrower to the satisfaction of the Bank whereby the Borrower will
agree, among other things, to reimburse the Bank for any draws made
with respect to such letters of credit, plus all interest and costs.
Any unpaid reimbursement obligations may, at the Bank's discretion,
be repaid by an Advance hereunder. Each such letter of credit issued
by the Bank shall expire no later than thirty (30) days prior to the
Revolving Credit Termination Date and shall be subject to the
Uniform Customs Practice for Documentary Credits ICC Pub. No. 500
and International Standby Practices (ISP 98) promulgated by the
Institute of International Banking Law & Practice. Upon the
occurrence of an Event of Default or in the event of any outstanding
letters of credit within thirty (30)days of the Revolving Credit
Termination Date, the Borrower shall, at the Bank's request, provide
the Bank with cash collateral to secure the Borrower's reimbursement
obligations in an amount equal to the face amount of all such
outstanding letters of credit, plus ten percent
(10%). The Borrower shall pay the Bank customary letter of credit
issuance, renewal and extension fees as and when assessed by the
Bank from time to time. The Bank shall be entitled to rely on any
letter of credit, draft, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy,
telex, or teletype message, statement or order or other document
believed by it to be genuine and correct and to have been signed,
sent or made by the proper person or persons and upon the advice and
statements of legal counsel, independent accountants and other
experts as selected by the Bank. The Borrower's obligations for all
letters of credit issued on its account shall be absolute and
unconditional under any and all circumstances irrespective of the
occurrence of any Event of Default or any condition precedent
whatsoever or any setoff, counterclaim or defense to payment which
the Borrower may have or have had against the Bank or any
beneficiary under a letter of credit issued by the Bank on the
Borrower's account. The Borrower further agrees that any action
taken or omitted by the Bank under or in connection with any letter
of credit issued on account of the Borrower and any related drafts
and documents shall, absent the Bank's gross negligence or willful
misconduct, be binding upon the Borrower and shall not result in any
liability on the part of the Bank.
2A.7 UNUSED FEE. The Borrower shall pay to the Bank a fee (the
"Unused Fee") on all unused amounts on the Revolving Credit
Facility. The Unused Fee shall be computed by multiplying the
Applicable Margin (determined as set forth for computation of the
Unused Fee as of the payment date in the definition of the
Applicable Margin set forth above) against the difference of the
Maximum Revolving Credit Facility Amount, less the aggregate of the:
(i) average daily balance of Advances outstanding on the Revolving
Credit Facility during such preceding quarter, plus (ii) the average
of all outstanding letters of credit for such quarter. The Unused
Fee shall be payable quarterly in arrears commencing on April 1,
2003 and on the first day of each successive quarter thereafter and
upon the Revolving Credit Termination Date, with the Unused Fee
being in consideration of the Advances made hereunder and being
deemed earned as incurred."
5. CONDITIONS PRECEDENT TO ADVANCES UNDER REVOLVING CREDIT FACILITY.
Section 5.2 of the Credit Agreement is hereby amended and modified such that the
conditions precedent to any Subsequent Advances shall apply to both the
Non-Restoring Credit Facility and the Revolving Credit Facility.
6. FINANCIAL REPORTING MODIFICATIONS. Section 6.1 of the Credit
Agreement is hereby amended to modify the financial reporting requirements as
follows:
(a) Section 6.1(a) of the Credit Agreement is hereby restated by
deleting the current text and inserting the following in its place and stead
"(a) quarterly reports of the Borrower: within sixty (60) days after
the close of each of the first three fiscal quarters of the Borrower
in each fiscal year, the Borrower shall furnish the Bank with:
(i) a Certificate of Compliance in the form of Exhibit D
certifying that, as of the end of the applicable period,
the Borrower is in full compliance with all affirmative,
negative and financial covenants (showing calculations)
set forth in this Agreement and certified by an officer
of the Borrower as accurate, true and complete; and
(ii) financial statements including a balance sheet as
of the close of such period and statements of income and
retained earnings and cash flows for the period then
ended, prepared by the Borrower and certified by an
officer of the Borrower as accurate, true and complete;
such quarterly reports shall correspond to the
information contained in the Borrower's financial
statements as filed with the Securities and Exchange
Commission on Form 10-Q;"
A revised form of Certificate of Compliance is annexed hereto as Exhibit 6.1.
(b) Section 6.1 of the Credit Agreement is hereby further amended by
inserting the following text as sub-paragraph (e) immediately following
sub-paragraph (d):
"(e) monthly reports of the Borrower: within twenty (20) days after
the close of each calendar month, in the event that there is any
outstanding Advance under the Revolving Credit Facility as of such
month ending date, the Borrower shall furnish the Bank with a
Borrowing Base Certificate in the form of Exhibit E and reports on
accounts payable and an aging of Accounts Receivables in such form
and detail as shall be acceptable to the Bank in its reasonable
discretion.
A form of Borrowing Base Certificate is annexed hereto as Exhibit E.
7. NEGATIVE COVENANT MODIFICATIONS. Section 7 of the Credit
Agreement is hereby amended by deleting the current text in its entirety and
inserting the following in its place and stead:
"SECTION 7. NEGATIVE COVENANTS
Unless the Bank consents in writing, the Borrower
covenants and agrees that, until (a) the expiration or termination
of any obligation on the part of the Bank to make an Advance and (b)
payment in full of all of the Notes and the complete performance of
all obligations hereunder and under any Related Agreement, it shall
not:
7.1 ENCUMBRANCES AND AGREEMENTS NOT TO PLEDGE.
(a) Incur or permit to exist any lien, mortgage, security interest,
pledge, charge or other encumbrance against any of the collateral,
whether now owned or hereafter acquired (including, without
limitation, any lien or encumbrance relating to any response,
removal or clean-up of any toxic substances or hazardous wastes),
except: (i) Permitted Liens as set forth on Schedule 4.11 hereto and
liens in favor of the Bank, as contemplated pursuant to this
Agreement; (ii) pledges or deposits in connection with or to secure
worker's compensation and unemployment insurance; (iii) judgment or
prejudgment liens not exceeding $100,000 in the aggregate or with
respect to which there has issued a stay of execution pending appeal
or otherwise: (iv) tax liens which are being contested in good
faith; and (v) liens, mortgages, security interests, pledges,
charges or other encumbrances in favor of the Bank or specifically
permitted, in writing, by the Bank.
(b) Enter into or permit to exist any agreement, arrangement or
understanding, either oral or in writing, with any person or entity
other than the Bank, which restricts or prohibits the Borrower from
incurring or permitting to exist any lien, mortgage, security
interest, pledge, charge or other encumbrance on all or any portion
of the Borrower's property or assets.
7.2 LIMITATION ON INDEBTEDNESS. Create or incur any indebtedness for
borrowed money, become liable, either actually or contingently, in
respect of letters of credit or banker's acceptances or issue or
sell any of its obligations, excluding, however, from the operation
of this covenant: (a) the Notes and all other Indebtedness to the
Bank; (b) other permitted Indebtedness; and (c) Indebtedness
incurred in the ordinary course of business.
7.3 DISPOSITION OF ASSETS. Sell, lease, pledge, transfer or
otherwise dispose of all or any of the Collateral (other than the
disposition of inventory in the ordinary course of business as
presently conducted or replacement of obsolete equipment), whether
now owned or hereafter acquired,
except for Permitted Liens and liens or encumbrances required or
permitted hereby or by any Related Agreement.
7.4 CONTINGENT LIABILITIES. Assume, guarantee, endorse or otherwise
become liable upon the obligations of any person, entity or
corporation except by the endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary course
of business.
7.5 CONSOLIDATION, MERGER, OR CONVERSION. Without the Bank's prior
written consent, merge, consolidate or convert with or into any
other corporation or entity; and, for the purposes of this Section
7.5, the acquisition of all or substantially all of the assets,
together with the assumption of all or substantially all of the
obligations and liabilities, of any corporation or entity shall be
deemed to be a consolidation with such corporation or entity.
7.6 LOANS, ADVANCES, INVESTMENTS. Without the Bank's prior written
consent, purchase or otherwise acquire any shares, ownership
interest or obligations of, or make loans or advances to, or
investments in, any individual, entity or corporation, except for
investments in direct obligations of the United States of America or
certificates of deposit (or similar investments) issued by the Bank.
7.7 ACQUISITION OF SHARES OF BORROWER. Without the Bank's prior
written consent, purchase, acquire, redeem or retire, or make any
commitment to purchase, acquire, redeem or retire any of the shares
or other ownership interest of the Borrower, whether now or
hereafter outstanding.
7.8 DIVIDENDS. Declare, pay, authorize or make any Dividend, except
that the Borrower may pay Dividends so long as the Borrower is
thereafter in compliance with all covenants (financial and
otherwise) upon the payment of any such Dividends. This agreement
shall not be construed as prohibiting or restricting the payment of
the Stated Dividend on the Borrower's Series Q Preferred Stock in
accordance with the terms thereof; provided, that the Borrower shall
promptly notify the Bank if the payment of any such dividend causes
the Borrower not to be in compliance with any financial covenant set
forth in Section 8 below.
7.9 TRANSACTIONS WITH SUBSIDIARIES AND AFFILIATES. Enter into, or be
a party to, any transaction with any Subsidiary or Affiliate
(including, without limitation, transactions involving the purchase,
sale or exchange of property, the rendering of services or the sale
of stock) except in the ordinary course of business and upon fair
and reasonable terms no less favorable than would be obtained in a
comparable arm's-length transaction with a person other than a
Subsidiary or an Affiliate.
7.10 CHANGE OF NAME OR LOCATION. Without the Bank's prior written
consent, change its name or conduct its business under any trade
name or style other than as hereinabove set forth or change its
chief executive office, place of business or the present location of
its assets or records relating thereto from those address
hereinabove set forth.
7.11 SUBSIDIARIES, AFFILIATES. Without the Bank's prior written
consent, acquire, form or dispose of any Subsidiary or Affiliate or
acquire all or substantially all or any material portion of the
shares or other ownership interest or assets of any other person,
entity or corporation.
7.12 STRUCTURE, TAX CLASSIFICATION. Without the Bank's prior written
consent, make or consent to a change in its capital structure or
convert into any other type of entity, or change an election to be
taxed under Subchapter C or Subchapter S, as applicable, of the
Internal Revenue Code.
7.13 CONDUCT OF BUSINESS ACCOUNTING METHODS. Without the Bank's
prior written consent, make or consent to a material change in the
manner in which the business of the Borrower is conducted or in its
method of accounting except as required to comply with the federal
securities laws and the rules of the Securities and Exchange
Commission."
8. FINANCIAL COVENANT MODIFICATIONS. Section 8 of the Credit
Agreement is hereby amended to modify the financial covenants as follows:
(a) Sections 8.3 and 8.4 are hereby restated by deleting the current
text and inserting the following in its place and stead
"8.3 LEVERAGE RATIO. The Borrower shall not permit its Leverage
Ratio to exceed the ratio of 2.0:1.0 as measured quarterly as of the
final day of each fiscal quarter.
8.4 TANGIBLE NET WORTH. The Borrower shall not permit its Tangible
Net Worth, measured quarterly on the final day of each fiscal
quarter, to be less than the amount prescribed for such measurement
date. The Borrower's Tangible Net Worth shall first be measured as
of December 31, 2002 and shall be no less than $13,000,000.00 as of
such measurement date. The prescribed minimum Tangible Net Worth
amount shall remain at $13,000,000.00 for each quarterly measurement
date thereafter until December 31, 2003, whereupon the minimum
Tangible Net Worth amount shall be adjusted to reflect an increase
equal to fifty (50%) percent of the Borrower's Net Income realized
during 2003, which amount shall be added to the prior year's minimum
prescribed Tangible Net Worth amount, with there being no reduction
or adjustment in the case of a loss, and the sum being the
prescribed minimum Tangible Net Worth amount for December 31, 2003
and for the following three fiscal quarter ending dates until
December 31, 2004, whereupon the same process shall be applied to
compute the minimum Tangible Net Worth amount on a cumulative basis.
This cumulative escalation of the prescribed minimum Tangible Net
Worth Amount shall continue during the term of this Agreement.
9. CONDITIONS TO BANK'S OBLIGATIONS. The willingness of the Bank to
consent to and enter into this First Amendment is subject to the satisfaction of
the following conditions concurrently with the execution and delivery of this
First Amendment:
(a) The Borrower shall make and deliver the Amended and Restated
Master Note (the "Replacement Note") payable to the Bank so as to reflect the
increase in the Non-Restoring Credit Facility as set forth in this First
Amendment, such Replacement Note to be in the form annexed hereto as Exhibit 2.3
- B. Such Replacement Note shall amend, restate and replace the existing Master
Note in its entirety, but the Replacement Note shall not be evidence of
satisfaction of the indebtedness owed by the Borrower to the Bank. Further, the
term "Master Note" as defined in the Credit Agreement shall mean and refer to
the Replacement Note of even date made by the Borrower payable to the Bank
pursuant to this First Amendment, and all extensions, modifications, and
renewals thereof.
(b) The Borrower and the Bank shall enter into Security Agreement
(the "Security Agreement") so as to provide the Bank with a perfected security
interest in the Borrower's assets to secure the obligations of the Borrower to
the Bank as more fully set forth therein, subject only to such liens as are
disclosed by the Borrower and acceptable to the Bank, such Security Agreement to
be in the form annexed hereto as Exhibit 9(b). The Security Agreement shall be
supplemental and in addition to the Security Agreement dated October 24, 2002
executed by the Borrower and delivered to the Bank in connection with the Credit
Agreement. Further, the Borrower shall execute and deliver all such instruments
and otherwise cooperate so as to permit the Bank to protect and perfect its
security interest.
(c) The Borrower shall execute and deliver to the Bank a Pledge
Agreement (the "Pledge Agreement") with respect to the Borrower's equity
interest in RxBazaar, Inc., such Pledge Agreement to be in the form annexed
hereto as Exhibit 9(c), and the Borrower shall deliver all such original
documents evidencing the pledged collateral as the Bank may request.
(d) The Bank shall have received from the Borrower an initial
Borrowing Base Certificate completed upon the form annexed hereto as Exhibit E.
(e) The Bank shall have received approving resolutions of the Board
of Directors of the Borrower, certified as of the date hereof by the Secretary
of the Borrower, authorizing the execution and delivery by the Borrower of this
First Amendment and all documents referenced herein.
(f) The Bank shall have received such other documents, certificates,
instruments, and agreements from the Borrower as the Bank may reasonably
request.
10. CONFIRMATION OF CERTAIN TERMS AND OTHER MATTERS. The Borrower
and the Bank hereby ratify and confirm all terms and provisions of the Credit
Agreement, as amended, and all other documents, instruments, or agreements
executed in connection therewith and agree that, except as expressly modified
herein, all of such terms and provisions remain in full force and effect. The
Borrower and the Bank hereby confirm and acknowledge that the obligations of the
Borrower under the Credit Agreement include all obligations and liabilities of
the Borrower under the Credit Agreement, as it may be amended from time to time.
11. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants that: (a) except as otherwise disclosed on the list of "Exceptions
to Representations" annexed hereto as Exhibit 11, the representations and
warranties contained in Section 4 of the Credit Agreement are true and correct
in all material respects on the date hereof with the same effect as though such
representations and warranties had been made on the date hereof; (b) it has
complied and is now in compliance in all material respects, with all of the
terms and provisions set forth in the Credit Agreement, as amended, on its part
to be observed and performed; (c) no Event of Default specified in Section 9 of
the Credit Agreement has occurred or is continuing; and (d) the execution,
delivery and performance of this First Amendment: (i) has been duly authorized
by all requisite corporation action, (ii) will not violate either (x) any
provision of law applicable to the Borrower, any governmental regulation, or its
charter or by-laws, or (y) any order of any court or other agency of government
binding on the Borrower or any indenture, agreement, or other instrument to
which the Borrower is a party, or by which it or any of its property is bound,
and (iii) will not be in conflict with, result in a breach of, or constitute
(with due notice and/or lapse of time) a default under, any such indenture,
agreement, or other instrument.
12. MISCELLANEOUS. This First Amendment may be executed in any
number of counterparts, each of which, when so executed and delivered, shall be
an original, but all of the
counterparts taken together shall constitute one and the same instrument. This
First Amendment shall be governed by the laws of the Commonwealth of
Massachusetts and shall be binding upon and inure to the benefit of the parties
hereto and their successors and permitted assigns.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the parties hereto each have executed this First
Amendment as a sealed instrument as of the date first written above.
Witness: Able Laboratories, Inc.
/s/ Xxxxxx Xxxxxxxxx By: /s/Xxxxxxxxx X. Xxxxxxx
----------------------------------- ------------------------------
Print Name: Xxxxxx Xxxxxxxxx Name: Xxxxxxxxx X. Xxxxxxx
----------------------- ----------------------------
Title: President
---------------------------
Witness: Citizens Bank of Massachusetts
By: /s/Xxxxxxx X. Xxxxxxxx
----------------------------------- ----------------------------
Print Name: Name: Xxxxxxx X. Xxxxxxxx
-----------------------
Title: Vice President
List of Exhibits:
Exhibit 2.3 - A Non-Restoring Credit Facility Note
---------------
Exhibit 2.3 - B Form of Master Note (Replacement Note)
---------------
Exhibit 2.3 - C Form of Sub-Note
---------------
Exhibit 2A.1 Form of Revolving Credit Note
------------
Exhibit 6.1 Revised Form of Certificate of Compliance
-----------
Exhibit E Form of Borrowing Base Certificate
---------
Exhibit 9(b) Form of Security Agreement
------------
Exhibit 9(c) Form of Pledge Agreement
------------
Exhibit 11 Schedule of Exceptions
----------
