SUPPLEMENT NO. 1 TO THE PLEDGE AND SECURITY AGREEMENT
Exhibit 10.39
EXECUTION VERSION
SUPPLEMENT NO. 1 TO THE PLEDGE AND SECURITY AGREEMENT
SUPPLEMENT NO. 1, dated as of November 25, 2015 (this “Supplement”), to the Pledge and Security Agreement dated as of November 25, 2015 (as amended, restated, supplemented, waived or otherwise modified from time to time, the “Security Agreement”), among the Borrower, each Guarantor from time to time party thereto, Xxxxxx Xxxxxxx Senior Funding, Inc., as administrative agent (in such capacity and any successor in such capacity, the “Administrative Agent”) and as collateral agent (in such capacity and any successor in such capacity, the “Collateral Agent”) for the Secured Parties (as defined therein).
A. Reference is made to (i) the Credit and Guaranty Agreement dated as of November 25, 2015, (as amended, restated, supplemented, waived or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, certain subsidiaries of the Borrower party thereto as Guarantors from time to time, the Lenders party thereto from time to time and Xxxxxx Xxxxxxx Senior Funding, Inc., as Administrative Agent and Collateral Agent and (ii) the Credit Agreement Joinder dated as of November 25, 2015 entered into by Xxxxxxx Urban Pharmaceuticals Inc., an Indiana corporation (the “New Subsidiary”), as required by Section 5.11 of the Credit Agreement.
B. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement and the Security Agreement.
C. The Credit Parties have entered into the Security Agreement in order to induce the Lenders to make extensions of credit under the Credit Agreement. Section 5.16 of the Security Agreement provides that additional subsidiaries may become Guarantors under the Security Agreement by execution and delivery of an instrument in the form of this Supplement. The New Subsidiary is executing this Supplement in accordance with the requirements of the Credit Agreement to become a Guarantor under the Security Agreement in order to induce the Lenders to make extensions of credit (if available under the Credit Agreement) and as consideration for extensions of credit previously made under the Credit Agreement.
Accordingly, the Administrative Agent, the Collateral Agent and the New Subsidiary agree as follows:
SECTION 1. In accordance with Section 5.16 of the Security Agreement, the New Subsidiary by its signature below becomes a Guarantor under the Security Agreement and agrees to be bound by all terms, covenants and conditions thereunder with the same force and effect as if originally named therein as a Guarantor and the New Subsidiary hereby (a) agrees to all the terms, covenants and provisions of the Security Agreement applicable to it as a Guarantor thereunder and (b) represents and warrants that (i) with respect to representations and warranties made by it under the Security Agreement that are not qualified by materiality, such representations and warranties are true and correct in all material respects, and (ii) with respect to the representations and warranties made by it under the Security Agreement that are qualified by materiality, such representations and warranties are true and correct in all respects, in each case, on and as of the date hereof. In furtherance of the foregoing, the New Subsidiary, as security for the payment and performance in full of the Obligations when due (whether at stated maturity, by acceleration or otherwise), does hereby create, grant and pledge to the Collateral Agent, for the benefit of the Secured Parties, a security interest in and Lien on all the New Subsidiary’s right, title and interest in and to the Collateral of the New Subsidiary and expressly assumes all obligations and liabilities of a Guarantor under the Security Agreement. Each reference to a “Guarantor” or “Credit Party” in the Security Agreement shall be deemed to include the New Subsidiary. The Security Agreement is hereby incorporated herein by reference.
SECTION 2. The New Subsidiary represents and warrants to the Administrative Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of good faith and fair dealing.
SECTION 3. This Supplement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute but one contract. Delivery of an executed counterpart to this Agreement by facsimile or any other electronic transmission (e.g., “PDF” or “TIFF”) shall be as effective as delivery of a manually signed original. This Supplement shall become effective when (a) the Collateral Agent shall have received a counterpart of this Supplement that bears the signature of the New Subsidiary and (b) the Agents have executed a counterpart hereof.
SECTION 4. The New Subsidiary hereby represents and warrants that (a) set forth on Schedule I attached hereto is a true, correct and complete schedule of all the Pledged Collateral of the New Subsidiary as of the date hereof, (b) set forth on Schedule II attached hereto is a true, correct and complete schedule of all of the material issued Patents, registered Trademarks and registered Copyrights owned by the New Subsidiary as of the date hereof, (c) set forth on Schedule III attached hereto is a true, correct and complete schedule of all Commercial Tort Claims of the New Subsidiary individually in excess of $5,000,000 as of the date hereof, (d) set forth on Schedule IV attached hereto, is the true, correct and complete legal name of the New Subsidiary, its jurisdiction of formation and the location of its chief executive office , (e) except as set forth in Schedule V, all Accounts of the New Subsidiary have been originated by the New Subsidiary and all Inventory has been produced or acquired by the New Subsidiary in the ordinary course of business, and (f) set forth on Schedule VI attached hereto is a true, correct and complete schedule of all Letter of Credit Rights of the New Subsidiary relating to Letters of Credit with a face amount in excess of $5,000,000 as of the date hereof.
SECTION 5. Except as expressly supplemented hereby, the Security Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICT OF LAWS TO THE EXTENT SUCH PRINCIPLES OR RULES ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
SECTION 7. In the event any one or more of the provisions contained in this Supplement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and in the Security Agreement shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be in writing and given as provided in Section 5.01 of the Security Agreement.
SECTION 9. The New Subsidiary agrees to reimburse the Collateral Agent for its reasonable and documented out-of-pocket expenses in connection with this Supplement, including the reasonable and documented fees, disbursements and other charges of counsel for the Collateral Agent.
[REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, the New Subsidiary and the Agents have duly executed this Supplement to the Security Agreement as of the day and year first above written.
|
|
XXXXXXX URBAN PHARMACEUTICALS INC. | ||
|
|
| ||
|
|
By: |
/s/ Xxxxxx Xxxxx | |
|
|
|
Name: |
Xxxxxx Xxxxx |
|
|
|
Title: |
Assistant Secretary |
|
|
XXXXXX XXXXXXX SENIOR FUNDING, INC., as Administrative Agent | ||
|
|
| ||
|
|
By: |
/s/ Xxxxx Xxxxx Xxxxx | |
|
|
|
Name: |
Xxxxx Xxxxx Xxxxx |
|
|
|
Title: |
Authorized Signatory |
|
|
| ||
|
|
| ||
|
|
XXXXXX XXXXXXX SENIOR FUNDING, INC., as Collateral Agent | ||
|
|
| ||
|
|
By: |
/s/ Xxxxx Xxxxx Xxxxx | |
|
|
|
Name: |
Xxxxx Xxxxx Xxxxx |
|
|
|
Title: |
Authorized Signatory |
Execution Copy
Schedule I
PLEDGED EQUITY SECURITIES
|
Name of Issuer |
|
Owner |
|
Number and |
|
Number of |
|
Percentage of |
|
|
Xxxxxxx Urban Pharmaceuticals Inc. |
|
Lannett Company, Inc. |
|
1 share of common stock |
|
3 |
|
100% |
|
PLEDGED DEBT SECURITIES
None.
Schedule II
INTELLECTUAL PROPERTY
PATENTS
Patents
|
TITLE |
|
Patent No. |
|
Issue Date |
|
Novel composition containing an acid-labile benzimidazole and process for its preparation |
|
US 6159499 |
|
12/12/2000 |
|
Composition comprising a benzimidazole and process for its manufacture |
|
US 8968776 |
|
03/03/2015 |
|
Composition containing an acid-labile omeprazole and process for its preparation |
|
US 6207198 |
|
03/27/2001 |
|
Pharmaceutical composition containing an acid-labile omeprazole and process for its preparation |
|
US 6248355 |
|
06/19/2001 |
Patent Applications
|
TITLE |
|
App. No. |
|
Filing Date |
|
Minitab feeder |
|
US 13/810,596 |
|
01/16/2013 |
|
Statin Compositions |
|
US 12/041,976 |
|
03/04/2008 |
|
Pharmaceutical compositions comprising niacin and process for their preparation |
|
US 13/756,588 |
|
02/01/2013 |
|
Composition comprising a benzimidazole and process for its manufacture |
|
US 14/633,766 |
|
02/27/2015 |
TRADEMARKS
Trademark Registrations
|
TRADEMARK |
|
Appl. No. |
|
Filing Date |
|
Reg. No. |
|
Reg. Date |
|
GLYCOLAX |
|
78229257 |
|
03/24/2003 |
|
2903907 |
|
11/16/2004 |
|
MONOKET |
|
73642900 |
|
02/04/1987 |
|
1453886 |
|
08/25/1987 |
COPYRIGHTS
None.
Schedule III
COMMERCIAL TORT CLAIMS
None.
Schedule IV
LEGAL NAME, JURISDICTION OF FORMATION AND ADDRESS
Name:
Xxxxxxx Urban Pharmaceuticals Inc.
Jurisdiction of Formation:
State of Indiana
Location of Chief Executive Office:
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000
Schedule V
MATTERS RELATING TO ACCOUNTS
AND INVENTORY
None.
Schedule VI
LETTER OF CREDIT RIGHTS
None.
