Exhibit 10.1
FIRST AMENDMENT
TO FINANCING AGREEMENT
AND TO SECURITY AGREEMENT
FIRST AMENDMENT, dated as of August 9, 2004 (this
"Amendment"), to (i) the Financing Agreement, dated as of April 23, 2004 (as
amended, restated or otherwise modified from time to time, the "Financing
Agreement"), by and among aaiPharma Inc., a Delaware corporation (the "Parent"),
Applied Analytical Industries Learning Center, Inc., a Delaware corporation
("Applied Analytical"), AAI Technologies, Inc., a Delaware corporation ("AAI
Technologies"), AAI Properties, Inc., a North Carolina corporation ("AAI
Properties"), AAI Japan, Inc., a Delaware corporation ("AAI Japan"), Kansas City
Analytical Services, Inc., a Kansas corporation ("Analytical Services"), AAI
Development Services, Inc., a Massachusetts corporation ("AAI Development-MA"),
aaiPharma LLC, a Delaware limited liability company ("Pharma LLC") and AAI
Development Services, Inc., a Delaware corporation ("AAI Development-DE", and
together with the Parent, Applied Analytical, AAI Technologies, AAI Properties,
AAI Japan, Analytical Services, AAI Development-MA and Pharma LLC, each a
"Borrower" and collectively, the "Borrowers"), the financial institutions from
time to time party hereto (each a "Lender" and collectively, the "Lenders"),
Silver Point Finance, LLC, a Delaware limited liability company ("Silver
Point"), as collateral agent for the Lenders (in such capacity, and any
successor in such capacity, the "Collateral Agent"), and Bank of America, N.A.
("Bank of America"), as administrative agent for the Lenders (in such capacity,
and any successor in such capacity, the "Administrative Agent" and together with
the Collateral Agent, each an "Agent" and collectively, the "Agents") and (ii)
to the Security Agreement, dated as of April 23, 2004 (as amended, restated or
otherwise modified from time to time, the "Security Agreement"), made by each of
the Borrowers in favor of the Collateral Agent.
WHEREAS, the Borrowers, the Agents and the Lenders wish to
amend certain terms and conditions of the Financing Agreement and of the
Security Agreement as hereafter set forth;
NOW, THEREFORE, the Borrowers, the Agents and the Lenders
hereby agree as follows:
1. Capitalized Terms. All terms which are defined in the
Financing Agreement and not otherwise defined herein are used herein as defined
therein.
2. Amendments to Financing Agreement.
(a) Recitals. The first sentence of the first recital
to the Financing Agreement is hereby amended in its entirety to read as follows:
"The Borrowers have asked the Lenders to extend credit to the Borrowers
consisting of (a) a term loan in the aggregate principal amount of
$135,000,000 and (b) a revolving
credit facility in an aggregate principal amount not to exceed
$15,000,000 at any time outstanding, which will include a subfacility
for the issuance of letters of credit."
(b) Existing Definitions. The following definitions
in Section 1.01 of the Financing Agreement are hereby amended in their entirety
to read as follows:
"'Applicable Prepayment Premium' means, as of any
date of determination, an amount equal to (a) during the period of time
from and after the First Amendment Effective Date up to the date that
is the 12 month anniversary of the First Amendment Effective Date, 3.5%
times the sum of (i) the amount of the reduction of the Total Revolving
Credit Commitment on such date plus (ii) the principal amount of the
Term Loan prepaid on such date, (b) during the period of time from and
including the date that is the 12 month anniversary of the First
Amendment Effective Date up to the date that is the 24 month
anniversary of the First Amendment Effective Date, 2.5% times the sum
of (i) the amount of the reduction of the Total Revolving Credit
Commitment on such date plus (ii) the principal amount of the Term Loan
prepaid on such date, (c) during the period of time from and including
the date that is the 24 month anniversary of the First Amendment
Effective Date up to the date that is the 30 month anniversary of the
First Amendment Effective Date, 1.5% times the sum of (i) the amount of
the reduction of the Total Revolving Credit Commitment on such date
plus (ii) the principal amount of the Term Loan prepaid on such date,
and (d) during the period of time from and including the date that is
the 30 month anniversary of the First Amendment Effective Date through
and including the Final Maturity Date, zero."
"'Final Maturity Date' means April 21, 2007, or such
earlier date on which any Loan shall become due and payable in
accordance with the terms of this Agreement and the other Loan
Documents."
"'Term Loan' means, collectively, the loans made by
the Term Loan Lenders to the Borrowers pursuant to Section
2.01(a)(ii)."
(c) New Definitions. The following definitions are
hereby added to Section 1.01 of the Financing Agreement in the appropriate
alphabetical order:
"'Applicable Incremental Margin' means, from and
after the First Amendment Effective Date, 1.50% per annum (the "Initial
Margin"); provided, that, so long as no Event of Default (other than
those Events of Default waived by the Agents and the Lenders pursuant
to the terms of the First Amendment) shall have occurred at any time,
the Applicable Incremental Margin may be reduced as follows:
(a) If (i) Excess Availability of the Parent and its
Subsidiaries (A) as at the end of the fiscal quarter of the Parent and
its Subsidiaries ended September 30, 2004 is greater than or equal to
$20,000,000 and (B) as at the end of the fiscal quarter of the Parent
and its Subsidiaries ended December 31, 2004 is greater than or equal
to $15,000,000 and (ii) EBITDA of the Parent and its Subsidiaries for
each of the fiscal quarters of the Parent and its Subsidiaries ended
September 30, 2004 and December 31, 2004 is greater than or equal to
$15,000,000, in each case, as shown on the relevant
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officer's certificate delivered to the Agents pursuant to Section
7.01(a)(iv), then, commencing on the first day of the first month
following the date of the delivery of the financial statements of the
Parent and its Subsidiaries for the fiscal quarter of the Parent and
its Subsidiaries ended December 31, 2004 (together with the
accompanying officer's certificate pursuant to Section 7.01(a)(iv)
showing the calculations entitling the Borrowers to such reduction),
the Applicable Incremental Margin shall be reduced to 0.75% per annum
(it being understood that upon the occurrence of an Event of Default
after the date of such reduction, the Applicable Incremental Margin
shall be reset at the Initial Margin).
(b) If (i) the Applicable Incremental Margin was
previously reduced pursuant to clause (a) above and not subsequently
increased pursuant to the parenthetical at the end of clause (a) above,
(ii) Excess Availability of the Parent and its Subsidiaries as at the
end of each of the fiscal quarters of the Parent and its Subsidiaries
ended March 31, 2005 and June 30, 2005 is greater than or equal to
$20,000,000 and (iii) EBITDA of the Parent and its Subsidiaries for
each of the fiscal quarters of the Parent and its Subsidiaries ended
March 31, 2005 and June 30, 2005 is greater than or equal to
$19,000,000, in the case of each of clauses (ii) and (iii), as shown on
the relevant officer's certificate delivered to the Agents pursuant to
Section 7.01(a)(iv), then, commencing on the first day of the first
month following the date of the delivery of the financial statements of
the Parent and its Subsidiaries for the fiscal quarter of the Parent
and its Subsidiaries ended June 30, 2005 (together with the
accompanying officer's certificate pursuant to Section 7.01(a)(iv)
showing the calculations entitling the Borrowers to such reduction),
the Applicable Incremental Margin shall be reduced to 0.25% per annum
(it being understood that upon the occurrence of an Event of Default
after the date of such reduction, the Applicable Incremental Margin
shall be reset at the Initial Margin)."
"'Applicable Prepayment Percentage' means, as of any
date of determination,
(a) Except as set forth in clause (b) below, 100%.
(b) So long as (i) no Default or Event of Default
shall have occurred and be continuing or would otherwise occur as a
result of such Disposition and (ii) the Borrowers are in compliance, on
a pro forma basis after giving effect to such Disposition, with the
financial covenants set forth in Section 7.03 for the immediately
succeeding reporting period of the Parent and its Subsidiaries, the
relevant Applicable Prepayment Percentage set forth in the table below
opposite the corresponding type of property or assets to be sold,
assigned, transferred or otherwise disposed of shall apply:
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Property or Asset Applicable Prepayment Percentage
----------------- --------------------------------
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Capital Stock of Aesgen, Inc. 50% of the Net Cash Proceeds received
from the Disposition thereof in excess
of $2,200,000
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Property or Asset Applicable Prepayment Percentage
----------------- --------------------------------
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Contractual rights to 100% of the Net Cash Proceeds received
Calcitriol product from the Disposition thereof in excess
of $5,000,000
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Aircraft 0%
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Property or assets subject
to a Sale and Leaseback
Transaction 50%
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All other property and assets 100%
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"'Cash Collateral Account' has the meaning specified
therefor in Section 2.05(c)(iii)."
"'Disposition Notice Date' has the meaning specified
therefor in Section 2.05(c)(vii)."
"'Disposition Prepayment Notice' has the meaning
specified therefor in Section 2.05(c)(vii)."
"First Amendment' means that certain First Amendment
to Financing Agreement, dated as of the First Amendment Effective Date,
by and among the Loan Parties, the Agents and the Lenders."
"First Amendment Effective Date' has the meaning
specified therefor in the First Amendment."
"'First Amendment to Fee Letter' means that certain
First Amendment to Fee Letter, dated as of the First Amendment
Effective Date, by and among the Borrowers and the Agents."
"Sale and Leaseback Transaction" means any
arrangement pursuant to which any Borrower, directly or indirectly,
becomes liable as lessee, guarantor, or other surety with respect to
any lease (other than a Capitalized Lease), of any equipment or real
property (i) which such Borrower or a Subsidiary of such Borrower has
sold or transferred (or is to sell or transfer) to a Person who is not
a Loan Party or an Affiliate of a Loan Party, or (ii) which such
Borrower or such Subsidiary intends to use for substantially the same
purpose as other equipment or real property which has been sold or
transferred (or is to be sold or transferred) by such Borrower or such
Subsidiary to another Person who is not a Loan Party or an Affiliate of
a Loan Party in connection with such lease.
"'Second Draw Date' means August 13, 2004."
(d) Commitments.
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(i) Section 2.01(a)(ii) of the Financing
Agreement is hereby amended in its entirety to read as follows:
"(ii) each Term Loan Lender severally agrees to make
the Term Loan to the Borrowers, in an aggregate principal amount not to
exceed the amount of such Lender's Term Loan Commitment, as follows:
(A) On the Effective Date, an amount equal
to such Term Loan Lender's Pro Rata Share of $125,000,000;
(B) On the Second Draw Date, in the case of
(1) SPCP Group LLC, $7,678,571.43, (2) Bank of America, N.A.,
$1,785,714.29, and (3) Xxxxxxx Xxxxx Credit Partners L.P.,
$535,714.28."
(ii) Section 2.01(b)(ii) of the Financing
Agreement is hereby amended in its entirety to read as follows:
"(ii) The aggregate principal amount of the Term Loan
made on the Effective Date and the Second Draw Date shall not exceed
the Total Term Loan Commitment. Any principal amount of the Term Loan
which is repaid or prepaid may not be reborrowed."
(iii) Section 2.01(b) of the Financing
Agreement is hereby amended by adding the following new clause (iii)
at the end thereof:
"(iii) The Lenders shall have no obligation to make
any additional Loans if, either immediately before or immediately after
giving effect to any such Loan, the aggregate principal amount of the
Loans (including interest paid-in-kind) and Letter of Credit
Obligations exceeds the amount of Indebtedness that on such date
remains available to be incurred by the Parent and its Subsidiaries
under clauses (1) and (14) of the definition of 'Permitted Debt'
contained in Section 4.09 of the Senior Subordinated Note Indenture (it
being understood that the Administrative Agent shall (A) be entitled to
rely on the Borrower's representations as to such fact in delivering
funding notices, disbursing Loan proceeds and taking other actions with
respect to such additional Loans and (B) have no obligation to
independently verify such fact)."
(e) Making the Loans.
(i) Section 2.02(a) is hereby amended by
deleting the phrase "the Effective Date" in each of clauses (iii) and
(v) therein and substituting in lieu thereof the phrase "the Effective
Date or the Second Draw Date."
(ii) Section 2.02(c)(i) is hereby amended by
deleting the phrase "this subsection 2.02(c)" therein and substituting
in lieu thereof the phrase "this subsection 2.02(c) and Section
2.01(a)(ii)(B)."
(f) Interest.
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(i) Section 2.04(a) of the Financing
Agreement is hereby amended in its entirety to read as follows:
"(a) Revolving Loans.
(i) Each Revolving Loan that is a Reference
Rate Loan shall bear interest on the principal amount thereof from time
to time outstanding, from the date of such Loan until such principal
amount becomes due, at a rate per annum equal to the sum of (w) the
Reference Rate plus 5.25% plus (x) the Applicable Incremental Margin.
Each Revolving Loan that is a LIBOR Rate Loan shall bear interest on
the principal amount thereof from time to time outstanding, from the
date of such Loan until such principal amount is repaid, at a rate per
annum equal to the sum of (y) the LIBOR Rate plus 6.25% plus (z) the
Applicable Incremental Margin.
(ii) Notwithstanding the foregoing, during
the period from the First Amendment Effective Date through and
including December 31, 2004, the Borrowers may elect to pay-in-kind
that portion of the accrued interest on the principal amount of the
Revolving Loans calculated at a rate per annum equal to the Applicable
Incremental Margin by adding such amount to the outstanding principal
balance of the Revolving Loans (inclusive of any interest paid-in-kind
theretofore so added) on the first day of each month; provided, that
(A) no Default or Event of Default shall have occurred and be
continuing or would otherwise occur as a result thereof and (B)
concurrently therewith, the Administrative Agent establishes and
maintains a corresponding reserve to Availability in the amount so
elected to be paid-in-kind, which reserve shall be released at such
time as the Borrowers pay such amount in cash."
(ii) Section 2.04(b) of the Financing
Agreement is hereby amended in its entirety to read as follows:
"(b) Term Loan.
(i) Each portion of the Term Loan that is a
Reference Rate Loan shall bear interest on the principal amount thereof
from time to time outstanding, from the date of such Loan until such
principal amount is repaid, at a rate per annum equal to the sum of (w)
the Reference Rate plus 5.25% plus (x) the Applicable Incremental
Margin. Each portion of the Term Loan that is a LIBOR Rate Loan shall
bear interest on the principal amount thereof from time to time
outstanding, from the date of such Loan until such principal amount is
repaid, at a rate per annum equal to the sum of (y) the LIBOR Rate plus
6.25% plus (z) the Applicable Incremental Margin.
(ii) Notwithstanding the foregoing, during
the period from the First Amendment Effective Date through and
including December 31, 2004, the Borrowers may elect to pay-in-kind
that portion of the accrued interest on the principal amount of the
Term Loan calculated at a rate per annum equal to the Applicable
Incremental Margin by adding such amount to the outstanding principal
balance of the Term Loan (inclusive of any interest paid-in-kind
theretofore so added) on the first day of each month; provided, that
(A) no Default or Event of Default shall have occurred and be
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continuing or would otherwise occur as a result thereof and (B)
concurrently therewith, the Administrative Agent establishes and
maintains a corresponding reserve to Availability in the amount so
elected to be paid-in-kind, which reserve shall be released at such
time as the Borrowers pay such amount in cash."
(g) Reduction of Commitments. Section 2.05(a)(ii) is
hereby amended in its entirety to read as follows:
"(ii) Term Loan. The Total Term Loan Commitment shall
terminate at 5:00 p.m. (New York City time) (A) on the Effective Date,
with respect to the aggregate principal amount of the Term Loan to be
funded by the Term Loan Lenders on such date pursuant to Section
2.01(a)(ii)(A) and (B) on the Second Draw Date, with respect to the
aggregate principal amount of the Term Loan to be funded by the Term
Loan Lenders on such date pursuant to Section 2.01(a)(ii)(B)."
(h) Mandatory Prepayments.
(i) Section 2.05(c)(iii) is hereby amended
in its entirety to read as follows:
"(iii) Within 3 days of any Disposition by any Loan
Party pursuant to Section 7.02(c)(ii), the Borrowers shall, at the
election of each Lender in its sole discretion and in accordance with
the procedures set forth in Section 2.05(c)(vii), be required to either
(A) prepay the outstanding principal amount of the Loans of such Lender
in accordance with Section 2.05(d) in an amount equal to such Lender's
Pro Rata Share of the Applicable Prepayment Percentage of the Net Cash
Proceeds received by such Person in connection with such Disposition or
(B) deposit such Lender's Pro Rata Share of such Net Cash Proceeds into
a cash collateral account with a commercial bank designated by the
Collateral Agent (the "Cash Collateral Account") (and when so deposited
such Net Cash Proceeds shall constitute Collateral for the Obligations
then outstanding) for application at a later date to the acquisition of
replacement property or assets approved by the Required Lenders for the
property or assets so disposed of, provided, that (x) until so applied
in accordance with either of clauses (y) or (z) of this clause (iii),
such Net Cash Proceeds shall remain in such cash collateral account,
(y) such Net Cash Proceeds must be applied and such property or assets
must be replaced with property or assets approved by the Required
Lenders within 360 days after the date of receipt thereof, and (z) upon
(1) the occurrence and during the continuance of an Event of Default or
(2) the expiration of such 360 day period, each Lender's Pro Rata Share
of such Net Cash Proceeds, if not so applied, shall be applied to the
prepayment of such Lender's Loans in accordance with Section 2.05(d).
Notwithstanding the foregoing, (xx) the aggregate amount of all Net
Cash Proceeds received by the Loan Parties with respect to Sale and
Leaseback Transactions not subject to prepayment pursuant to this
Section 2.05(c)(iii) shall not exceed $10,000,000 in the aggregate
during the term of this Agreement, (yy) the Applicable Prepayment
Percentage with respect to Dispositions of property or assets
identified in clause (b) of the definition of Applicable Prepayment
Percentage as "All other property and assets" shall apply only to the
extent that the aggregate amount of all Net Cash Proceeds received by
all Loan Parties (and not paid to
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the Administrative Agent as a prepayment of the Loans) shall exceed for
all such Dispositions $1,000,000 in any Fiscal Year (provided, further
that the aggregate amount of all such Net Cash Proceeds received by all
Loan Parties (and not paid to the Administrative Agent as a prepayment
of the Loans), when taken together with the aggregate amount of
Extraordinary Receipts not subject to prepayment pursuant to Section
2.05(c)(v) shall not exceed $3,000,000 in the aggregate during the term
of this Agreement), and (zz) in no event shall the aggregate amount of
all Net Cash Proceeds received by all Loan Parties (and not paid to the
Administrative Agent as a prepayment of the Loans or otherwise
reinvested in replacement assets or properties in accordance with this
clause (iii) or otherwise) exceed $5,000,000 during the term of this
Agreement. Nothing contained in this clause (iii) shall permit any Loan
Party or any of its Subsidiaries to make a Disposition of any property
or assets other than in accordance with Section 7.02(c)(ii)."
(ii) The second sentence of Section
2.05(c)(iv) of the Financing Agreement is hereby amended in its
entirety to read as follows:
"Promptly upon the sale or issuance by any Loan Party or any of its
Subsidiaries of any shares of its Capital Stock (other than an Excluded
Equity Issuance), and in any event within 1 Business Day thereafter,
the Borrowers shall prepay the outstanding amount of the Loans in
accordance with Section 2.05(d) in an amount equal to 50% of the Net
Cash Proceeds received by such Person in connection with such sale or
issuance to the extent that the aggregate amount of Net Cash Proceeds
received by all Loan Parties (and not paid to the Administrative Agent
as a prepayment of the Loans) shall exceed for all such sales or
issuances $30,000,000 during the term of this Agreement."
(iii) Section 2.05(c) of the Financing
Agreement is hereby amended by adding the following new clauses (vi)
and (vii) at the end thereof:
"(vi) If on any date the aggregate principal amount
of the Loans (including interest paid-in-kind) and Letter of Credit
Obligations exceeds the amount of Indebtedness that on such date
remains available to be incurred by the Parent and its Subsidiaries
under clauses (1) and (14) of the definition of 'Permitted Debt'
contained in Section 4.09 of the Senior Subordinated Note Indenture,
the Borrowers shall prepay the outstanding amount of the Loans in
accordance with Section 2.05(d) in an amount equal to such excess.
(vii) Notwithstanding anything to the contrary in
this Section 2.05, in the case of each mandatory prepayment described
in Section 2.05(c)(iii), the Loan Party making such prepayment shall
give the Agents telephonic notice (promptly confirmed in writing) no
later than 5 Business Days prior to the date of the applicable
Disposition (the "Disposition Notice Date") of the particulars of such
Disposition (including the associated Net Cash Proceeds to be received
by the Loan Parties) and requesting that the Administrative Agent
prepare and provide to each Lender a notice (in form and substance
reasonably satisfactory to the Agents) to the effect that such Lender
has the right, at its option, to accept or decline its share of such
prepayment or to accept a portion thereof and decline the remainder,
and setting forth procedures reasonably satisfactory to the
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Agents relating to the exercise of such option (the "Disposition
Prepayment Notice"). The Administrative Agent thereupon shall promptly,
and within one Business Day of the Disposition Notice Date, prepare and
deliver the Disposition Prepayment Notice to the Collateral Agent and
such Lenders. Each such Lender shall give written notice to the Agents
within 2 Business Days following receipt by such Lender of the
Disposition Prepayment Notice, and in accordance with the procedures
set forth therein, indicating whether it elects to accept or decline
its share of such prepayment (and any failure to give such notice shall
be deemed by the Agents an election to accept its share of such
prepayment). The amount so declined by such Lender shall be deposited,
on the date the prepayment is made, into the Cash Collateral Account. "
(i) Application of Mandatory Prepayments. Section
2.05(d)(i) of the Financing Agreement is hereby amended in its entirety to read
as follows:
"(i) if the proceeds are from (A) any Disposition of
any Account Receivable or Inventory, (B) any Extraordinary Receipts
arising from an insurance policy or condemnation award solely with
respect to Accounts Receivable or Inventory, (C) any Extraordinary
Receipts arising from any United States tax refunds received by the
Parent or any of its Subsidiaries prior to the First Amendment
Effective Date or (D) any event set forth in Section 2.05(c)(vi), such
proceeds shall be applied, first, ratably to the Revolving Loans, until
paid in full, second, to the Term Loan, until paid in full, and third,
ratably to all other Obligations, until paid in full;"
(j) Mandatory Prepayments; Interest and Fees.
Section 2.05(e)(i)(A) of the Financing Agreement is hereby amended in its
entirety to read as follows:
"(A) accrued interest (including interest paid-in-kind pursuant to
Section 2.04) on the principal amount being prepaid to the date of
prepayment and"
(k) Letters of Credit. Section 3.01(a) of the
Financing Agreement is hereby amended by deleting the proviso at the end of the
first sentence therein and substituting in lieu thereof the following:
"; provided, however, that (i) the Letter of Credit Obligations
outstanding shall not at any time exceed Two Million Five Hundred
Thousand Dollars ($2,500,000) (the "Letter of Credit Committed
Amount"), (ii) the sum of the aggregate outstanding principal amount of
Revolving Loans plus Letter of Credit Obligations outstanding shall not
at any time exceed the Total Revolving Credit Commitment, and (iii) the
aggregate principal amount of Loans (including interest paid-in-kind)
plus Letter of Credit Obligations outstanding shall not at any time
exceed the amount of Indebtedness that may be incurred by the Parent
and its Subsidiaries under clauses (1) and (14) of the definition of
'Permitted Debt' contained in Section 4.09 of the Senior Subordinated
Note Indenture."
(l) Conditions Precedent to All Loans and Letters of
Credit. Section 5.02(b) of the Financing Agreement is hereby amended by
replacing the "and" prior to "(iii)" with a "," and adding the following new
clause (iv) at the end thereof:
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"and (iv) after giving effect to such Loan or Letter of Credit, the
aggregate principal amount of Loans (including interest paid-in-kind)
plus Letter of Credit Obligations outstanding shall not exceed the
amount of Indebtedness that may be incurred by the Parent and its
Subsidiaries under clauses (1) and (14) of the definition of 'Permitted
Debt' contained in Section 4.09 of the Senior Subordinated Note
Indenture."
(m) Obligations as Senior Debt. Clause (i) of
Section 6.01(kk) of the Financing Agreement is hereby amended by inserting
therein the following sentence after the second sentence thereof:
"The Loan Parties have not, directly or indirectly, created, incurred,
issued, assumed, guaranteed, or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to any Indebtedness
permitted pursuant to clauses (1) or (14) of the definition of
'Permitted Debt' contained in Section 4.09 of the Senior Subordinated
Note Indenture, other than in respect of the Obligations and other
Indebtedness of the Loan Parties that has been repaid in full prior to
or on the First Amendment Effective Date."
(n) Reporting Requirements. Section 7.01(a)(iv) of
the Financing Agreement is hereby amended by deleting clause (2) in its entirety
and substituting in lieu thereof the following:
"(2) attaching a schedule showing (x) the calculations of the financial
covenants specified in Section 7.03 and (y) in connection with the
financial statements of the Parent and its Subsidiaries delivered
pursuant to Section 7.01(a) for the fiscal quarters ended December 31,
2004 and June 30, 2005, the calculations necessary to determine any
reduction to the Applicable Incremental Margin based upon such
financial statements and the resulting Applicable Incremental Margin to
be applied."
(o) Lease Obligations. Section 7.02(f)(i) is hereby
amended in its entirety to read as follows:
"for the payment of rent for any real or personal property in
connection with any Sale and Leaseback Transaction other than Sale and
Leaseback Transactions permitted by Section 7.02(c)(ii), or"
(p) FTI. Section 7.01(r) of the Financing Agreement
is hereby amended in its entirety to read as follows:
"(r) FTI. Continue at all times the retention of FTI
Consulting, Inc. (including the retention of Xxxx Xxxxxxx as Chief
Restructuring Officer) pursuant to the letter agreement dated March 19,
2004, between FTI Consulting, Inc. and the Parent; provided, that, if
(i) Excess Availability of the Parent and its Subsidiaries for each of
the fiscal quarters of the Parent and its Subsidiaries ended September
30, 2004 and December 31, 2004 is greater than or equal to $15,000,000,
in each case, as shown on the relevant officer's certificate delivered
to the Agents pursuant to Section 7.01(a)(iv) and (ii) the Parent and
its Subsidiaries have, on or prior to December 31, 2004, implemented
annualized cost reductions of $4,000,000 or more in excess of the cost
reductions projected to be implemented prior to such date in the
Projections delivered by the Loan
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Parties to the Agents and the Lenders on August 4, 2004, then the
Parent may terminate the retention of FTI at any time on or after the
date of the delivery of the financial statements of the Parent and its
Subsidiaries for the fiscal quarter of the Parent and its Subsidiaries
ended December 31, 2004."
(q) Indebtedness. Section 7.02(b) of the Financing
Agreement is hereby amended by inserting therein the following sentence at the
end thereof:
"Notwithstanding anything to the contrary contained in this Agreement
or any other Loan Document, the Loan Parties shall not, directly or
indirectly, create, incur, issue, assume, guarantee, or otherwise
become directly or indirectly liable, contingently or otherwise, with
respect to any Indebtedness permitted pursuant to clauses (1) and (14)
of the definition of 'Permitted Debt' contained in Section 4.09 of the
Senior Subordinated Note Indenture, other than in respect of the
Obligations."
(r) Dispositions. Section 7.02(c)(ii) of the
Financing Agreement is hereby amended by (i) deleting the "and" at the end of
clause (G) therein, (ii) deleting the proviso at the end of clause (H) therein,
and (iii) adding the following new clauses (I) and (J) and new proviso at the
end of clause (H) therein:
", (I) sell equipment or real property pursuant to Sale and Leaseback
Transactions to the extent that the aggregate purchase price of all
equipment and real property sold pursuant to Sale and Leaseback
Transactions would not exceed $20,000,000 during the term of this
Agreement and (J) sell the Parent's contractual rights to its
Calcitriol product for a cash purchase price of not less than the fair
market value thereof; provided that the Net Cash Proceeds of such
Dispositions (x) in the case of clauses (C) and (F) above, do not
exceed $2,000,000 in the aggregate during the term of this Agreement
and (y) in the case of clauses (C), (F), (I) and (J) above, are paid to
the Administrative Agent for the benefit of the Agents, the L/C Issuer
and the Lenders if required pursuant to the terms of Section
2.05(c)(iii); and"
(s) Financial Covenants. Section 7.03 of the
Financing Agreement is hereby amended in its entirety to read as follows:
"Section 7.03 Financial Covenants. So long as any
principal of or interest on any Loan, Letter of Credit Obligation or
any other Obligation (whether or not due) shall remain unpaid or any
Lender shall have any Commitment hereunder, each Loan Party shall not,
unless the Required Lenders shall otherwise consent in writing:
(a) Intentionally Omitted.
(b) Leverage Ratio. Permit the Leverage
Ratio of the Parent and its Subsidiaries as of the end of each period
of four (4) consecutive fiscal quarters of the Parent and its
Subsidiaries for which the last quarter ends on a date set forth below
to be greater than the applicable ratio set forth below:
11
Fiscal Quarter End Leverage Ratio
------------------ --------------
September 30, 2004 2.75:1.00
December 31, 2004 2.75:1.00
March 31, 2005 2.65:1.00
June 30, 2005 2.60:1.00
September 30, 2005 2.50:1.00
December 31, 2005 2.40:1.00
March 31, 2006 2.40:1.00
June 30, 2006 2.40:1.00
September 30, 2006 2.25:1.00
December 31, 2006 2.25:1.00
March 31, 2007 2.25:1.00
June 30, 2007 2.25:1.00
(c) Fixed Charge Coverage Ratio. Permit the
Fixed Charge Coverage Ratio of the Parent and its Subsidiaries as at
the end of each period set forth below to be less than the applicable
ratio set forth below:
Period Fixed Charge Coverage Ratio
------ ---------------------------
The 1 fiscal quarter period 1.10:1.00
ending September 30, 2004
The 2 fiscal quarter period 1.10:1.00
ending December 31, 2004
The 3 fiscal quarter period 1.20:1.00
ending March 31, 2005
The 4 fiscal quarter period 1.25:1.00
ending June 30, 2005
The 4 fiscal quarter period 1.30:1.00
ending September 30, 2005
The 4 fiscal quarter period 1.35:1.00
ending December 31, 2005
The 4 fiscal quarter period 1.40:1.00
ending March 31, 2006
The 4 fiscal quarter period 1.40:1.00
ending June 30, 2006
The 4 fiscal quarter period 1.50:1.00
ending September 30, 2006
12
Period Fixed Charge Coverage Ratio
------ ---------------------------
The 4 fiscal quarter period 1.50:1.00
ending December 31, 2006
The 4 fiscal quarter period 1.50:1.00
ending March 31, 2007
The 4 fiscal quarter period 1.50:1.00
ending June 30, 2007
(d) Excess Availability. Permit Excess
Availability at any time to be less than an amount equal to the sum of
(i) (A) prior to the date of the termination of the Total Revolving
Credit Commitment for any reason, $5,000,000, and (B) thereafter,
$10,000,000 and (ii) 50% times the amount of Specified Costs and
Expenses incurred in excess of $2,500,000."
(t) Events of Default.
(i) Section 9.01(c)(i) is hereby amended by
deleting the phrase "(other than Section 7.03(a))" therein and
substituting in lieu thereof the phrase "(other than Section 7.03(a)
and, during the period from October 1, 2004 through and including
November 30, 2004, Section 7.03(d))."
(ii) Section 9.01(c)(iv) is hereby amended
in its entirety to read as follows:
"(iv) during the period from
October 1, 2004 through and including November 30, 2004, fail to comply
with Section 7.03(d) and, so long as Excess Availability at all times
during such failure is greater than the result of (i) $2,500,000 plus
(ii) 50% times the amount of Specified Costs and Expenses incurred in
excess of $2,500,000 minus (iii) the aggregate amount of interest that
the Borrower paid in cash during such period that the Borrower could
have elected to pay in kind during such period pursuant to Section
2.04(a)(ii) and Section 2.04(b)(ii), such failure continues after
November 30, 2004;"
(u) Schedules. Each of Schedule 1.01(A),
Schedule 6.01(h), Schedule 6.01(x) and Schedule 7.02(e) to the Financing
Agreement is hereby amended by deleting such Schedule in its entirety and
substituting in lieu thereof a new Schedule 1.01(A), Schedule 6.01(h), Schedule
6.01(x) and Schedule 7.02(e), each of which is attached hereto as Annex I, Annex
II, Annex III and Annex IV, respectively.
(v) Exhibit D. The last paragraph of Exhibit D to the
Financing Agreement is hereby amended by replacing the "and" prior to "(iii)"
with a "," and adding the following new clause (iv) at the end thereof:
"and (iv) after giving effect to such Loan or Letter of Credit, the
aggregate principal amount of Loans (including interest paid-in-kind)
plus Letter of Credit Obligations outstanding shall not exceed the
amount of Indebtedness that may be incurred by the
13
Parent and its Subsidiaries under clauses (1) and (14) of the
definition of 'Permitted Debt' contained in Section 4.09 of the Senior
Subordinated Note Indenture."
3. Amendment to Security Agreement. Schedule II to the
Security Agreement is hereby amended by deleting such Schedule in its entirety
and substituting in lieu thereof a new Schedule II, which is attached hereto as
Annex V.
4. Waiver and Consent.
(a) Pursuant to the request of the Loan Parties and
in accordance with Section 12.02 of the Financing Agreement, and subject to the
satisfaction of the conditions to effectiveness set forth in Section 5 of this
Amendment, the Agents and the Lenders hereby consent to and waive any Event of
Default that would otherwise arise under (i) Section 9.01(c)(i) of the Financing
Agreement by reason of the failure by the Loan Parties to provide the Agents and
the Lenders with timely notice of the filing of applications for registration of
the trademarks "AAI Development Services" and "AAI Development Services (and
Design)" with the Canadian, Japanese, European Community, Republic of Korea and
Taiwanese trademark offices, in each case, in accordance with the terms of the
Security Agreement, (ii) Section 9.01(c)(ii) of the Financing Agreement by
reason of the failure by the Loan Parties to provide the Agents and the Lenders
with timely notice of the events set forth as items 1 and 2 on Annex VI attached
hereto in accordance with Sections 7.01(a)(xi) and (xii) of the Financing
Agreement, and (iii) Section 9.01(b) of the Financing Agreement by reason of the
failure by the Loan Parties to include (A) (1) the Master Lease Agreement, dated
May 30, 2001, between the Parent and General Electric Capital Corporation and
(2) the Master Lease Agreement, dated June 28, 2002, by and between the Parent
and Gelco Corporation, on Schedule 6.01(x) of the Financing Agreement and (B)
(1) the event set forth as item 3 on Annex VI hereto on Schedules 6.01(h) and
6.01(x) of the Financing Agreement and (2) the intellectual property litigation
described on Annex V attached hereto on Schedule II of the Security Agreement.
(b) The waivers and consents in this Section 4 shall
be effective only in this specific instance and for the specific purpose set
forth herein and do not allow for any other or further departure from the terms
and conditions of the Financing Agreement or any other Loan Document, which
terms and conditions shall continue in full force and effect.
5. Conditions. This Amendment shall become effective only upon
satisfaction in full of the following conditions precedent (the first date upon
which all such conditions have been satisfied being herein called the "First
Amendment Effective Date"):
(a) Representations and Warranties; No Event of
Default. The representations and warranties contained herein, in Article VI of
the Financing Agreement and in each other Loan Document are true and correct on
and as of the First Amendment Effective Date as though made on and as of such
date, except to the extent that any such representation or warranty expressly
relates solely to an earlier date (in which case such representation or warranty
shall be true and correct on and as of such earlier date); and no Default or
Event of Default shall have occurred and be continuing on the First Amendment
Effective Date either immediately before or after giving effect to this
Amendment in accordance with its terms.
14
(b) Delivery of Documents. The Collateral Agent shall
have received on or before the First Amendment Effective Date, the following,
each in form and substance reasonably satisfactory to the Collateral Agent and,
unless otherwise indicated, dated as of the First Amendment Effective Date:
(i) counterparts of this Amendment, duly
executed by the Borrowers, the Agents and the Lenders;
(ii) the First Amendment to Fee Letter, duly
executed by the Borrowers and the Agents;
(iii) an amendment to each Mortgage, in form
and substance reasonably satisfactory to the Collateral Agent, duly
executed by the applicable Loan Party, with respect to each Facility;
(iv) a copy of the resolutions of each Loan
Party, certified as of the First Amendment Effective Date by an
Authorized Officer thereof, authorizing the execution and delivery of
this Amendment and the other documents to be executed and delivered by
such Person in connection herewith and authorizing the transactions
contemplated hereby;
(v) a certificate of an Authorized Officer
of each Loan Party, certifying the names and true signatures of the
representatives of such Loan Party authorized to sign this Amendment
and the other documents to be executed and delivered by such Person in
connection herewith, together with evidence of the incumbency of such
Authorized Officers;
(vi) a certificate of an Authorized Officer
of each Loan Party, certifying as to the matters set forth in clause
(a) of this Section 5;
(vii) a certificate of an Authorized Officer
of the Parent, certifying that, as of the First Amendment Effective
Date, (A) neither the Parent nor any of its Subsidiaries had made any
prepayments of principal of term loan indebtedness or revolving credit
indebtedness (that have resulted in a corresponding permanent reduction
of such revolving credit indebtedness) under any Credit Facility (as
defined in the Senior Subordinated Note Indenture) from the Net
Proceeds (as defined in the Senior Subordinated Note Indenture) of
Asset Sales (as defined in the Senior Subordinated Note Indenture) and
(B) the aggregate amount of Excess Proceeds (as defined in the Senior
Subordinated Note Indenture) of the Parent and its Subsidiaries is
zero;
(viii) an opinion of in-house counsel for
the Loan Parties and of Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.A., counsel to
the Loan Parties, as to such matters as the Collateral Agent may
reasonably request including, without limitation, that the Loans made
pursuant to the Financing Agreement, as amended by this Amendment,
constitute "Permitted Debt", "Senior Debt" and "Designated Senior Debt"
under the Senior Subordinated Note Indenture or some derivation thereof
reasonably satisfactory to the Collateral Agent; and
15
(ix) such other agreements, instruments,
approvals, opinions and other documents as the Collateral Agent may
reasonably request.
(c) Proceedings. All proceedings in connection with
the transactions contemplated by this Amendment, and all documents incidental
hereto, shall be reasonably satisfactory to the Collateral Agent and its
counsel.
(d) Fees, Etc. The Borrowers shall have paid all
fees, costs, expenses and taxes then payable by the Borrowers pursuant to the
Financing Agreement and the other Loan Documents, including, without limitation,
Section 2.06 and 12.04 of the Financing Agreement.
6. Representations and Warranties. Each Borrower represents
and warrants as follows:
(a) Organization, Good Standing, Etc. Each Borrower
(i) is a corporation or limited liability company, as the case may be, duly
organized, validly existing and in good standing under the laws of the state of
its organization other than to the extent that the failure to be in good
standing in such state could not reasonably be expected to have a Material
Adverse Effect and (ii) has all requisite power and authority to execute,
deliver and perform this Amendment, and to perform the Financing Agreement, as
amended hereby.
(b) Authorization, Etc. The execution, delivery and
performance by each Borrower of this Amendment and the performance by each
Borrower of the Financing Agreement, as amended hereby (i) have been duly
authorized by all necessary action, (ii) do not and will not violate or create a
default under any such Borrower's organizational documents or any applicable law
or any material term of any Material Contract, and (iii) except as provided in
the Loan Documents, do not and will not result in or require the creation of any
Lien upon or with respect to any of such Borrower's property.
(c) Governmental Approvals. No authorization or
approval or other action by, and no notice to or filing with, any Governmental
Authority or other regulatory body is required in connection with (i) the due
execution, delivery and performance by each Borrower of this Amendment or (ii)
the performance by each Borrower of the Financing Agreement, as amended hereby.
(d) Enforceability of Loan Documents. Each of this
Amendment and the Financing Agreement, as amended hereby, and the other Loan
Documents, is a legal, valid and binding obligation of each Borrower party
hereto, enforceable against such Borrower in accordance with the terms thereof,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally.
(e) Representations and Warranties; No Default. The
representations and warranties contained herein, in Article VI of the Financing
Agreement and in each other Loan Document are true and correct on and as of the
First Amendment Effective Date as though made on and as of such date, except to
the extent that any such representation or warranty expressly relates solely to
an earlier date (in which case such representation or warranty shall be true and
correct on and as of such earlier date); and no Default or Event of Default
shall have occurred
16
and be continuing on the First Amendment Effective Date either immediately
before or after giving effect to this Amendment in accordance with its terms.
7. Continued Effectiveness of the Financing Agreement.
(a) Ratifications. Except as otherwise expressly
provided herein, (i) the Financing Agreement and the other Loan Documents are,
and shall continue to be, in full force and effect and are hereby ratified and
confirmed in all respects, except that on and after the First Amendment
Effective Date (A) all references in the Financing Agreement to "this
Agreement", "hereto", "hereof", "hereunder" or words of like import referring to
the Financing Agreement shall mean the Financing Agreement as amended by this
Amendment and (B) all references in the other Loan Documents to the "Financing
Agreement", "thereto", "thereof", "thereunder" or words of like import referring
to the Financing Agreement shall mean the Financing Agreement as amended by this
Amendment, (ii) to the extent that the Financing Agreement or any other Loan
Document purports to pledge to the Collateral Agent, or to grant to the
Collateral Agent a security interest in or lien on, any collateral as security
for the Obligations, such pledge or grant of a security interest or lien is
hereby ratified and confirmed in all respects, and (iii) the execution, delivery
and effectiveness of this Amendment shall not operate as an amendment of any
right, power or remedy of the Agents or the Lenders under the Financing
Agreement or any other Loan Document, nor constitute an amendment of any
provision of the Financing Agreement or any other Loan Document.
(b) No Waivers. Except as otherwise expressly
provided herein, this Amendment is not a waiver of, or consent to, any Default
or Event of Default now existing or hereafter arising under the Financing
Agreement or any other Loan Document and the Agents and the Lenders expressly
reserve all of their rights and remedies under the Financing Agreement and the
other Loan Documents, under applicable law or otherwise.
(c) Amendment as Loan Document. Each Borrower
confirms and agrees that this Amendment shall constitute a Loan Document under
the Financing Agreement. Accordingly, it shall be an Event of Default under the
Financing Agreement if any representation or warranty made or deemed made by any
Borrower under or in connection with this Amendment shall have been incorrect in
any material respect when made or deemed made or if any Borrower fails to
perform or comply with any covenant or agreement contained herein.
8. Release. Each Borrower hereby acknowledges and agrees that:
(a) neither it nor any of its Affiliates has any claim or cause of action
against any Agent or any Lender (or any of their respective Affiliates,
officers, directors, employees, attorneys, consultants or agents) and (b) each
Agent and each Lender has heretofore properly performed and satisfied in a
timely manner all of its obligations to the Borrowers and their Affiliates under
the Financing Agreement and the other Loan Documents. Notwithstanding the
foregoing, the Agents and the Lenders wish (and the Borrowers agree) to
eliminate any possibility that any past conditions, acts, omissions, events or
circumstances would impair or otherwise adversely affect any of the Agents' and
the Lenders' rights, interests, security and/or remedies under the Financing
Agreement and the other Loan Documents. Accordingly, for and in consideration of
the agreements contained in this Amendment and other good and valuable
consideration, each Borrower (for itself and its Affiliates and the successors,
assigns, heirs and representatives of each of the foregoing)
17
(collectively, the "Releasors") does hereby fully, finally, unconditionally and
irrevocably release and forever discharge each Agent, each Lender and the L/C
Issuer and each of their respective Affiliates, officers, directors, employees,
attorneys, consultants and agents (collectively, the "Released Parties") from
any and all debts, claims, obligations, damages, costs, attorneys' fees, suits,
demands, liabilities, actions, proceedings and causes of action, in each case,
whether known or unknown, contingent or fixed, direct or indirect, and of
whatever nature or description, and whether in law or in equity, under contract,
tort, statute or otherwise, which any Releasor has heretofore had or now or
hereafter can, shall or may have against any Released Party by reason of any
act, omission or thing whatsoever done or omitted to be done on or prior to the
First Amendment Effective Date arising out of, connected with or related in any
way to this Amendment, the Financing Agreement or any other Loan Document, or
any act, event or transaction related or attendant thereto, or the agreements of
any Agent or any Lender contained therein, or the possession, use, operation or
control of any of the assets of any Borrower, or the making of any Loans or
other advances, or the management of such Loans or advances or the Collateral.
9. Miscellaneous.
(a) Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of this Amendment by telefacsimile or electronic mail shall
be equally effective as delivery of an original executed counterpart of this
Amendment.
(b) Headings. Section and paragraph headings herein
are included for convenience of reference only and shall not constitute a part
of this Amendment for any other purpose.
(c) Governing Law. This Amendment shall be governed
by, and construed in accordance with, the laws of the State of New York.
(d) Expenses. The Borrowers will pay on demand all
reasonable fees, costs and expenses of the Agents in connection with the
preparation, execution and delivery of this Amendment and all documents
incidental hereto, including, without limitation, the reasonable fees,
disbursements and other charges of Xxxxxxx Xxxx & Xxxxx LLP, counsel to the
Collateral Agent.
[Remainder of this page intentionally left blank]
18
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
BORROWERS:
---------
AAIPHARMA INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and CAO
APPLIED ANALYTICAL INDUSTRIES LEARNING
CENTER, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
AAI TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
AAI PROPERTIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
AAI JAPAN, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
KANSAS CITY ANALYTICAL SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
S-1
AAI DEVELOPMENT SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
AAIPHARMA LLC
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
AAI DEVELOPMENT SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
S-2
COLLATERAL AGENT:
----------------
SILVER POINT FINANCE, LLC,
as Collateral Agent
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
ADMINISTRATIVE AGENT:
--------------------
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
S-3
LENDERS:
-------
BANK OF AMERICA, N.A.,
as L/C Issuer
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
SEA PINES FUNDING LLC,
as a Lender
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
TRS THEBE LLC,
as a Lender
By: /s/ Xxx Xxxxxxx
---------------------------------------
Name: Xxx Xxxxxxx
Title: Assistant Vice President
SIL LOAN FUNDING LLC,
as a Lender
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Attorney-in-fact
SPCP GROUP LLC,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
S-4
XXXXXXX SACHS CREDIT PARTNERS L.P.,
as a Lender
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
S-5
