Exhibit 4(q)
EIGHTH AMENDMENT TO LOAN AGREEMENT
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THIS EIGHTH AMENDMENT TO LOAN AGREEMENT (this "Amendment") is
entered into as of the 30th day of June, 2003 by and among LaSalle Bank
National Association, a national banking association ("Bank"), and each of
K-V Pharmaceutical Company, a Delaware corporation ("K-V"), Particle
Dynamics, Inc., a New York corporation ("PDI"), ETHEX Corporation, a
Missouri corporation ("ETHEX"), and THER-RX Corporation, a Missouri
corporation ("THER-RX"), jointly and severally (K-V, PDI, ETHEX and THER-RX
are collectively referred to as the "Borrowers").
W I T N E S S E T H:
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WHEREAS, Bank and the Borrowers are party to that certain Loan
Agreement dated as of June 18, 1997, as amended by that certain First
Amendment to Loan Agreement dated as of October 28, 1998, that certain
Second Amendment to Loan Agreement dated as of March 11, 1999, that certain
Third Amendment to Loan Agreement dated as of June 22, 1999, that certain
Fourth Amendment to Loan Agreement dated as of December 17, 1999, that
certain Fifth Amendment to Loan Agreement dated as of December 21, 2001,
that certain Sixth Amendment to Loan Agreement dated as of December 20, 2002
and that certain Seventh Amendment to Loan Agreement dated as of April 28,
2003 (collectively, the "Agreement"); and
WHEREAS, Bank and the Borrowers desire to further amend the
Agreement in accordance with this Amendment.
NOW, THEREFORE, for and in consideration of the premises and mutual
agreements herein contained and for the purposes of setting forth the terms
and conditions of this Amendment, the parties, intending to be bound, hereby
agree as follows:
1. Incorporation of the Agreement. All capitalized terms which are
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not defined hereunder shall have the same meanings as set forth in the
Agreement, and the Agreement, to the extent not inconsistent with this
Amendment, is incorporated herein by this reference as though the same were
set forth in its entirety. To the extent any terms and provisions of the
Agreement are inconsistent with the amendments set forth in Paragraph 2
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below, such terms and provisions shall be deemed superseded hereby. Except
as specifically set forth herein, the Agreement shall remain in full force
and effect and its provisions shall be binding on the parties hereto.
2. Amendment of the Agreement. Borrowers and Bank hereby agree to
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amend the Agreement as follows:
(a) The definition of the term "Funded Debt Ratio"
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appearing in Paragraph 1.1 of the Agreement is hereby deleted in its
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entirety.
(b) The definition of the term "EBITDA" appearing in
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Paragraph 1.1 of the Agreement is hereby amended by adding the following
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sentence at the end of such definition:
Notwithstanding the foregoing, a one-time non-recurring
charge of $16,500,000 relating to Borrower's pending
litigation with Healthpoint, Ltd. shall be added back to
EBITDA for the period ended September 30, 2002 and not for
any other period.
(c) The definitions of the terms "Fixed Charges", "Fixed
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Charge Coverage Ratio", "Senior Debt", "Senior Leverage Ratio" and "Total
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Funded Debt Ratio" are hereby appended to the Agreement in Paragraph 1.1 as
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follows:
"Fixed Charges" means, for any period, the sum of total
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Interest Expense, scheduled principal payments on Funded
Debt due in the next twelve month period and capital lease
principal payments due in the next twelve month period.
"Fixed Charge Coverage Ratio" means, as of any date, the
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ratio of (i) EBITDA, less income taxes paid in cash, to
(ii) Fixed Charges.
"Senior Debt" means total interest bearing Funded Debt
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less Subordinated Debt.
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"Senior Leverage Ratio" means, as of any date, the ratio
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of (i) Senior Debt to (ii) EBITDA.
"Total Funded Debt Ratio" means, as of any date, the ratio
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of (i) total interest bearing Funded Debt to (ii) EBITDA.
It is understood and agreed that if Borrower consummates
an acquisition (whether via stock purchase, asset
purchase, merger or otherwise), Funded Debt of Borrowers
for the fiscal period during which such acquisition
occurred and all other relevant measuring periods shall be
calculated to include the Funded Debt of the Acquired
Assets, if applicable, for the relevant "trailing"
measuring periods as if such Acquired Asset was owned
hereunder at all such times.
(d) Paragraph 8.2(g)(i) is hereby deleted in its entirety
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and the following paragraph is hereby added to the Agreement in its place
and stead:
(i) Maintain a Total Funded Debt Ratio, at all
times, of not greater than the ratios set forth below:
PERIOD AMOUNT
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June 30, 2003 4.00:1.0
and at all times thereafter
(e) Paragraph 8.2(g)(ii) is hereby amended and restated in
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its entirety to read as follows:
(ii) Maintain EBITDA, at all times, of not less
than the amounts set forth below, calculated quarterly for
the preceding twelve-month period on a trailing twelve
month basis:
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PERIOD AMOUNT
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June 30, 2003 through
September 29, 2004 $40,000,000
September 30, 2004 and at all
times thereafter $50,000,000
(f) A new Paragraph 8.2(iv) is hereby added to the
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Agreement to read as follows:
(iv) Maintain a Fixed Charge Coverage Ratio of
not less than 3.75:1.0, calculated quarterly for the
preceding twelve month period on a trailing twelve month
basis.
(g) A new Paragraph 8.2(g)(v) is hereby added to the
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Agreement to read in its entirety as follows:
(v) Maintain a Senior Leverage Ratio, at all times, of not
greater than 1.50:1.0.
(h) Paragraph 9.1 is hereby amended by deleting the word
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"or" occurring at the end of subsection (l), replacing the period occurring
at the end of subsection (m) with "; or" and adding the following new
subsection (n) thereto:
(n) Borrowers amend any of the provisions contained in any
indenture or other agreement governing the subordination
terms of any Subordinated Debt without the prior written
consent of the Bank.
3. Representations, Covenants and Warranties; No Default. The
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representations, covenants and warranties set forth in Paragraph 8 of the
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Agreement shall be deemed remade as of the date hereof by each Borrower,
except that any and all references to the Agreement in such representations
and warranties shall be deemed to include this Amendment. No Event of
Default has occurred and is continuing and no event has occurred and is
continuing which, with the lapse of time, the giving of notice, or both,
would constitute such an Event of Default under the Agreement.
4. Fees and Expenses. The Borrowers agree to pay on demand all
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costs and expenses of or incurred by Bank in connection with the evaluation,
negotiation, preparation, execution and delivery of this Amendment and the
other instruments and documents executed and delivered in connection with
the transactions described herein (including the filing or recording
thereof), including, but not limited to, the fees and expenses of counsel
for the Bank and any future amendments to the Agreement.
5. Delivery of Documents. Notwithstanding any of the foregoing,
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prior to entering into this Amendment, Bank shall have received from
Borrowers the following fully executed documents, in form and substance
satisfactory to Bank, and all of the transactions contemplated by each such
document shall have been consummated or each condition contemplated by each
such document shall have been satisfied:
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(a) Eighth Amendment to Loan Agreement;
(b) Officer's Certificate of each Borrower; and
(c) Such other documents, opinions or certificates as Bank
may reasonably request.
6. Effectuation. The amendments to the Agreement contemplated by
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this Amendment shall be deemed effective immediately upon the full execution
of this Amendment and without any further action required by the parties
hereto. There are no conditions precedent or subsequent to the effectiveness
of this Amendment.
7. Counterparts. This Amendment may be executed in two or more
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counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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(SIGNATURE PAGE TO EIGHTH AMENDMENT)
IN WITNESS WHEREOF, the parties hereto have duly executed this
Eighth Amendment to Loan Agreement as of the date first above written.
K-V PHARMACEUTICAL COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
Its:_________________________________
ETHEX CORPORATION
By:__________________________________
Its:_________________________________
PARTICLE DYNAMICS, INC.
By:__________________________________
Its:_________________________________
THER-RX CORPORATION
By:__________________________________
Its:_________________________________
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxxxx
Its:_________________________________
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