EXECUTION COPY
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as
of April 20, 2004, among aaiPharma Inc., a Delaware corporation (the "Company"),
the Guarantor parties hereto and Wachovia Bank, National Association (formerly,
First Union National Bank), as trustee under the Indenture referred to below
(the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of March 28, 2002, among the
Company, the Guarantors parties thereto and the Trustee, providing for the
issuance of the Company's 11% Senior Subordinated Notes due 2010 (the "Notes");
WHEREAS, the Board of Directors of the Company has determined that it
is in the best interest of the Company to authorize and approve the amendments
to the Indenture (the "Proposed Amendments") set forth in this Supplemental
Indenture;
WHEREAS, Section 9.02 of the Indenture provides that the Company and
the Trustee may amend the Indenture with the written consent of the Holders of a
majority in principal amount of the then outstanding Notes (the "Requisite
Consents");
WHEREAS, the Company has distributed the Consent Solicitation
Statement, dated April 8, 2004, as amended by the Revised Consent Solicitation
Statement, dated April 19, 2004 (as amended, the "Solicitation Statement"), and
accompanying Consent Form to the Holders of the Notes in connection with the
Proposed Amendments as described in the Solicitation Statement;
WHEREAS, the Requisite Consents to the Proposed Amendments have been
received by the Company and the Trustee and all other conditions precedent, if
any, provided for in the Indenture relating to the execution of this
Supplemental Indenture have been complied with as of the date hereof;
WHEREAS, the execution and delivery of this Supplemental Indenture has
been duly authorized by the Company; and
WHEREAS, this Supplemental Indenture shall become operative upon
receipt by the Trustee of an Officers' Certificate certifying that the
Conditions (as defined in the Solicitation Statement) have been duly performed
and complied with or (if permitted) waived by the Company;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto mutually covenant and agree for the equal and ratable benefit of the
Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. DEFINITIONS.
(a) Section 1.01 of the Indenture is amended by replacing the
definitions of "Credit Agreement" and "Credit Facilities" with the following:
"`Credit Agreement' means that certain Financing Agreement, to
be entered into by and among the Company, the subsidiaries of the
Company named therein, the financial institutions from time to time
party thereto, Silver Point Finance LLC, as Collateral Agent, and Bank
of America, N.A., as Administrative Agent, including any related notes,
guarantees, collateral documents, instruments and agreements executed
in connection therewith, and in each case as amended, modified,
renewed, refunded, rearranged, replaced or refinanced from time to
time.
`Credit Facilities' means one or more debt facilities
(including, without limitation, the credit facilities provided under
the Credit Agreement) or commercial paper facilities, in each case with
banks, other institutional lenders or other businesses that make loans
in the ordinary course of business providing for revolving credit
loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to
borrow from such lenders against such receivables) or letters of
credit, in each case, as amended, restated, modified, renewed,
refunded, replaced or refinanced in whole or in part from time to
time."
(b) Section 1.01 of the Indenture is amended to delete the word "and"
immediately preceding item (xvi) of the definition of "Permitted Liens."
(c) Section 1.01 of the Indenture is amended by including the following
two new items in the definition of "Permitted Liens":
"(xvii) Liens to secure the Notes and the Subsidiary
Guarantees; and
(xviii) Liens to secure Indebtedness permitted by clause (11)
of the second paragraph of Section 4.09."
(d) Section 1.01 of the Indenture is amended by inserting the following
new definitions:
"Collateral" means all of the assets of the Company or any
Guarantor whether real, personal or mixed, in which the Holders, the
Trustee, the Collateral Agent or any of them now or hereafter holds a
Lien as security for any Noteholder Claim.
"Collateral Agent" means the collateral agent under the
Security Documents, which initially may be the Trustee, acting in its
capacity as Collateral Agent under such agreements on behalf of and for
the benefit of the Trustee and the Holders.
"First Priority Lien" means the Liens on the Collateral
granted by the Company or any Guarantor to secure the payment and
performance of all or any Senior Lender Claims, and all replacements,
renewals and other modifications of such Liens.
"Intercreditor Agreement" means the Intercreditor Agreement,
to be entered into by and among Silver Point Finance, LLC, as Senior
Collateral Agent, the Trustee, the Collateral Agent and the Company, as
amended, modified, restated, supplemented or replaced from time to
time.
"Noteholder Claims" has the meaning provided in Section 14.01.
"Pledge Agreement" means the Pledge Agreement to be made by
the Company and the Guarantors named therein in favor of the Collateral
Agent for the benefit of the Trustee and the Holders, as amended,
modified, restated, supplemented or replaced from time to time.
"Second Priority Lien" means the Liens on the Collateral
granted by the Company or any Guarantor to secure the payment and
performance of all or any Noteholder Claims, and all replacements,
renewals and other modifications of such Liens.
"Security Agreement" means the Security Agreement to be made
by the Company and the Guarantors, granting, among other things, a
junior Lien on the Collateral described therein in favor of the
Collateral Agent for the benefit of the Trustee and the Holders, as
amended, modified, restated, supplemented or replaced from time to
time.
"Security Documents" means, collectively, the Security
Agreement, the Intercreditor Agreement, the Pledge Agreement and all
other security agreements, pledges, collateral assignments or other
instruments evidencing or creating any Security Interests in favor of
the Collateral Agent, for the benefit of the Trustee and the Holders,
in all or any portion of the Collateral, in each case, as amended,
modified, restated, supplemented or replaced from time to time.
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"Security Interests" means the Liens on the Collateral created
by the Security Documents in favor of the Collateral Agent for the
benefit of the Trustee and the Holders.
"Senior Collateral Agent" means Silver Point Finance, LLC, as
collateral agent for the holders of the Senior Lender Claims and any
successors.
"Senior Lender Claims" has the meaning provided in Section
14.01.
3. REPORTS. Section 4.03 of the Indenture is amended to include the
following new paragraph:
"(c) Notwithstanding anything in this Indenture to the contrary, but
subject to the notice and cure provisions set forth in clause (4) of
Section 6.01 hereof, the Company shall furnish all reports and other
information required to be furnished under clause (a)(i) above,
including any amended quarterly reports for 2003, on or prior to the
earlier of the date the Company's annual report on Form 10-K for the
year ended December 31, 2003 is filed with the SEC or September 30,
2004."
4. COMPLIANCE CERTIFICATE. Section 4.04 of the Indenture relating to
accountants' certificates is amended to include the following sentence at the
end of clause (b):
"Notwithstanding anything in this Indenture to the contrary, the
Company shall furnish to the Holders such written accountants'
statements for the years ended December 31, 2002 and 2003 no later than
five days after the earlier of date the Company's annual report on Form
10-K for the year ended December 31, 2003 is filed with the SEC or
September 30, 2004."
5. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES. Clause (2) in the second paragraph under Section 4.08 of the
Indenture is amended by deleting the clause in its entirety and replacing it
with the following:
"(2) this Indenture, the Notes, the Subsidiary Guarantees and the
Security Documents;"
6. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK. Section
4.09 of the Indenture is amended as follows:
(a) The second paragraph of Section 4.09 is amended to delete the
words "so long as no Default shall have occurred and be continuing or
would be caused thereby."
(b) Section 4.09(1) is amended by deleting the paragraph in its
entirety and replacing it with the following:
"(1) the incurrence by the Company or any Guarantor of
Indebtedness under Credit Facilities in an aggregate principal amount
at any one time outstanding (with letters of credit being deemed to
have a principal amount equal to the maximum potential liability
thereunder) not to exceed $140 million, less the aggregate amount of
all Net Proceeds of Asset Sales (other than the sale of the M.V.I. and
Aquasol product lines) applied by the Company or any of its Restricted
Subsidiaries to repay such Indebtedness and to effect a corresponding
commitment reduction thereunder pursuant to Section 4.10 hereof;"
(c) Section 4.09(11) is amended by adding the following at the end
thereof immediately before the semicolon:
", and the incurrence by the Company or any of its Restricted
Subsidiaries of obligations under any agreement entered into in the
normal course of business governing the provision of treasury or cash
management services, including deposit accounts, funds transfer,
automated clearinghouse, zero balance accounts, returned check
concentration and controlled disbursement;"
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(d) Section 4.09(14) is amended by adding the following at the end
thereof immediately before the period:
"provided, however, that the Company or any Restricted
Subsidiary may not incur Indebtedness under this clause (14) until the
Company complies with Section 4.03(c) of this Indenture, except if the
Company incurs Indebtedness under this clause (14) in order to fund
interest payments on the Notes"
7. LIENS. Section 4.12 of the Indenture is amended by deleting the
paragraph in its entirety and replacing it with the following two paragraphs:
"The Company will not, and will not permit any of its
Restricted Subsidiaries to, create, incur, assume or otherwise cause or
suffer to exist or become effective any Lien of any kind securing
Indebtedness, Attributable Debt or trade payables (other than Permitted
Liens) upon any of their property or assets, now owned or hereafter
acquired, unless all payments due under this Indenture and the Notes
are secured on a prior basis with the obligations so secured until such
time as such obligations are no longer secured by a Lien.
If there is any Indebtedness outstanding under a Credit
Agreement under clause (1) under the second paragraph of Section 4.09
hereof at any time after April 20, 2004, the Company and the Guarantors
will grant to the Trustee, for its benefit and the benefit of the
Holders, a Second Priority Lien in and upon the Collateral to secure
the Notes and the Subsidiary Guarantees."
8. LIMITATION ON SENIOR SUBORDINATED DEBT. Section 4.14 of the
Indenture is amended by substituting the following paragraph for the text of
Section 4.14:
"The Company will not incur, create, issue, assume, guarantee
or otherwise become liable for any Indebtedness that is subordinate or
junior in right of payment to any Senior Debt of the Company and senior
in any respect in right of payment to the Notes. No Guarantor will
incur, create, issue, assume, guarantee or otherwise become liable for
any Indebtedness that is subordinate or junior in right of payment to
the Senior Debt of such Guarantor and senior in any respect in right of
payment to such Guarantor's Subsidiary Guarantee. For purposes of this
Section 4.14 and to avoid any doubt, any Indebtedness permitted under
clause (1) of the second paragraph of Section 4.09 hereof shall,
regardless of its terms, not be deemed to be subordinate or junior in
right of payment to any other Indebtedness permitted under clause (1)
of the second paragraph of Section 4.09."
9. ADDITIONAL SUBSIDIARY GUARANTEES. Section 4.21 of the Indenture is
amended by adding the following at the end thereof immediately before the
period:
", and if in connection with such Guarantee, such Domestic
Subsidiary grants any First Priority Lien upon any of its property,
such Domestic Subsidiary must grant a Second Priority Lien upon such
property."
10. EVENTS OF DEFAULT. Section 6.01 of the Indenture is amended as
follows:
(a) Section 6.01 of the Indenture is amended to delete the word
"and" immediately preceding item (9).
(b) Section 6.01 of the Indenture is amended to include the
following new paragraph:
"(10) unless all of the Collateral has been released from the Trustee's
Lien thereon in accordance with the provisions of the Security Documents
and subject to terms of the Intercreditor Agreement, default by the
Company or any Significant Subsidiary in the performance of the Security
Documents which materially adversely affects the enforceability or the
validity of the Trustee's Lien on a material portion of the Collateral,
the repudiation or disaffirmation by the Company or any Significant
Subsidiary of its material obligations under the Security Documents, or
the determination in a judicial proceeding before a court of competent
jurisdiction that the Security Documents are unenforceable or invalid
against the Company or any Significant Subsidiary party thereto for any
reason with respect to a material portion of the Collateral, which
default, repudiation, disaffirmation or determination is not rescinded,
stayed, or waived by the Persons having such authority pursuant to the
Security Documents or otherwise cured within 60 days after the Company
receives written
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notice thereof specifying such occurrence from the Trustee or the
Holders of at least 25% of the outstanding principal amount of the Notes
and demanding that such default be remedied."
11. DEFEASANCE AND COVENANT DEFEASANCE. Article Eight of the Indenture
is amended as follows:
(a) Section 8.02 of the Indenture is amended by adding the words "and
the Security Documents" immediately after the reference to "all outstanding
Notes" and immediately after the reference to "the Subsidiary Guarantees" in the
first sentence of such section.
(b) Section 8.03 of the Indenture is amended by adding the following at
the end thereof immediately before the period:
"and the Company and the Guarantors will not be obligated to comply
with the covenants contained in the Security Documents."
12. COLLATERAL AND SECURITY DOCUMENTS. The Indenture is amended to add
the following new Article 14:
"ARTICLE 14
COLLATERAL AND SECURITY DOCUMENTS
Section 14.01. Collateral and Security Documents.
(a) In order to secure the due and punctual payment of the Notes
and other amounts due under the Indenture, the Company has entered into the
Security Agreement and the other Security Documents to create the Second
Priority Liens on the Collateral in accordance with the terms thereof. Pursuant
to the provisions of the Security Agreement, the other Security Documents and
this Indenture, the rights and remedies of the Trustee and the Holders of the
Notes in the Collateral shall be subordinate and subject to the rights and
remedies of the holders of the First Priority Liens in accordance with the terms
of the Intercreditor Agreement and the other Security Documents entered into in
accordance with Section 14.03(c). In the event of a conflict between the terms
of this Indenture and the Security Documents regarding the Collateral, the First
Priority Liens and/or the Second Priority Liens, the Security Documents shall
control. In the event of a conflict between the Security Documents and the
Intercreditor Agreement, the Intercreditor Agreement shall control; provided
that, as between the Company and the Guarantors, on the one hand, and the
Collateral Agent, on the other, the rights, benefits, liabilities and duties of
the Collateral Agent shall be governed by the Security Documents. The terms
"Senior Lender Claims" and "Noteholder Claims" as used in this Indenture shall
have the meanings given to them in the Intercreditor Agreement.
(b) Each Holder of a Note, by accepting such Note, agrees to all
of the terms and provisions of the Intercreditor Agreement and the other
Security Documents.
(c) The Company shall not, and shall not cause or permit any of
the Guarantors to, intentionally xxxxx x Xxxx on any of its Collateral to the
Senior Collateral Agent for the benefit of the lenders under the Credit
Agreement or any other holder of First Priority Liens unless a Second Priority
Lien is created in favor of the Collateral Agent for the benefit of the Trustee
and the Holders with respect to such property or assets.
(d) The Collateral Agent is hereby authorized and directed to
enter into the Intercreditor Agreement, the Security Agreement and the other
Security Documents, and to execute such agreements as attorney-in-fact on behalf
of the Holders, and take any and all actions required or permitted by the terms
hereof and thereof.
Section 14.02. Application of Proceeds of Collateral.
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Upon any realization upon the Collateral, the proceeds thereof shall be
applied in accordance with the terms of the Security Documents and the terms
hereof.
Section 14.03. Possession, Use and Release of Collateral.
(a) Unless an Event of Default shall have occurred and be
continuing, subject to the terms of the Security Documents, the Company and the
Guarantors will have the right to remain in possession and retain exclusive
control of the Collateral securing the Notes and any Guarantees (other than any
cash, securities, obligations and Cash Equivalents constituting part of the
Collateral and under the control of the Collateral Agent in accordance with the
provisions of the Security Documents and other than as set forth in the Security
Documents), to freely operate the Collateral and to collect, invest and dispose
of any income thereon.
(b) Each Holder of a Note, by accepting such Note, acknowledges
that (i) the Security Documents shall provide that so long as any Senior Lender
Claims (or any commitments or letters of credit in respect thereof) are
outstanding, the holders thereof shall have the exclusive right and authority to
control at all times all remedies and other actions related to the Collateral
(including dispositions and releases thereof) and to change, waive, modify or
vary the Security Documents and (ii) the holders of the Senior Lender Claims may
(x) direct the Collateral Agent to take actions with respect to the Collateral
(including the release of the Collateral and the manner of realization) without
the consent of the Holders or the Trustee and (y) agree to modify the Security
Documents, without the consent of the Holders or the Trustee, to secure
additional Indebtedness and additional secured creditors so long as such
modifications do not expressly violate the provisions of the Credit Agreement or
this Indenture. Each Holder of a Note, by accepting such Note, directs the
Collateral Agent to take such actions as directed by the holders of the Senior
Lender Claims in accordance with this Section 14.03(b).
(c) At such time as (i) the Senior Lender Claims have been paid in
full in cash in accordance with the terms thereof, and all commitments and
letters of credit thereunder have been terminated, or (ii) the holders of Senior
Lender Claims have released their First Priority Liens on all or any portion of
the Collateral, the Second Priority Liens on the Collateral shall also be
automatically released to the same extent; provided, however, that if an Event
of Default under this Indenture exists as of the date on which the Senior Lender
Claims are repaid in full, the Collateral securing the Notes and the Guarantee
shall not be released until such Event of Default and all other Events of
Default shall have been cured or otherwise waived except to the extent such
Collateral was disposed of in order to repay the Senior Lender Claims; and
provided, further, that if the Senior Lender Claims (or any portion thereof) are
thereafter secured by assets that would constitute Collateral, the Notes and any
Guarantees shall then be secured by a Second Priority Lien on such Collateral,
to the same extent provided pursuant to the Security Documents as then in effect
immediately prior to the release of the Liens on the Collateral. If the Company
subsequently incurs obligations under a new Credit Agreement or other Senior
Lender Claims that are secured by assets of the Company and/or the Guarantors of
the type constituting Collateral, then the Notes shall be secured at such time
by a Second Priority Lien on the collateral securing such Senior Lender Claims
(to the extent such assets are of the type which constitute Collateral) to the
same extent and on the terms and conditions of the security documents relating
to the new Credit Agreement or such other Senior Lender Claims as then in effect
immediately prior to the release of the Liens on the Collateral.
(d) Notwithstanding the provisions set forth in this Section
14.03, the Company and its Subsidiaries may, without any release or consent by
the Collateral Agent or the Trustee, perform a number of activities in the
ordinary course in respect of the Collateral to the extent permitted pursuant to
the Security Documents and this Indenture.
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SECTION 14.04. Opinion of Counsel.
So long as the Security Interests under the Security Documents have not
been terminated in accordance with the terms thereof or hereof, the Company
shall deliver to the Trustee, so long as such delivery is required by Section
314(b) of the TIA at least annually, within 30 days of June 1 of each year
(commencing with June 1, 2005), an Opinion of Counsel satisfying the
requirements of Section 314(b) of the TIA.
SECTION 14.05. Further Assurances.
The Company and each Domestic Subsidiary shall, at its own expense,
make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent
from time to time such lists, descriptions and designations of its Collateral,
warehouse receipts, receipts in the nature of warehouse receipts, bills of
lading, documents of title, vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers of
attorney, certificates, reports and other assurances or instruments and take
such further steps relating to the Collateral and other property or rights
covered by the Security Interests, which shall be appropriate or advisable to
perfect, preserve or protect the Collateral Agent's Security Interest in the
Collateral.
SECTION 14.06. Trust Indenture Act Requirements.
The release of any Collateral from the Second Priority Lien of any of
the Security Documents or the release of, in whole or in part, the Second
Priority Liens created by any of the Security Documents, will not be deemed to
impair the Security Interests in contravention of the provisions hereof if and
to the extent the Collateral or Second Priority Liens are released pursuant to
the applicable Security Documents and pursuant to the terms hereof. Each of the
Holders of the Notes acknowledges that a release of Collateral or Liens strictly
in accordance with the terms of the Security Documents and the terms hereof will
not be deemed for any purpose to be an impairment of the Security Documents or
otherwise contrary to the terms of this Indenture. So long as any Senior Lender
Claims are outstanding, the Company and the Guarantors shall comply with TIA
Section 314(d) relating to the release of property or securities from the Second
Priority Liens hereof but only to the extent required by the TIA.
SECTION 14.07. Suits to Protect the Collateral.
Subject to the provisions of the Security Documents, the Holders of a
majority in principal amount of the Notes shall have the right to direct the
Trustee to direct the Collateral Agent to institute and to maintain such suits
and proceedings as may be expedient to prevent any impairment of the Collateral
by any acts which may be unlawful or in violation of any of the Security
Documents or this Indenture, and such suits and proceedings as may be expedient
to preserve or protect the interests of the Trustee and the interests of the
Holders in the Collateral (including suits or proceedings to restrain the
enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of, or compliance with, such enactment, rule or order would
impair the Security Interests or be prejudicial to the interests of the
Holders).
SECTION 14.08. Powers Exercisable by Receiver or Trustee.
In case the Collateral shall be in the possession of a receiver or
trustee, lawfully appointed, the powers conferred in this Article 14 upon the
Company or any Guarantor, as applicable, with respect to the release, sale or
other disposition of such property may be exercised by such receiver or trustee,
and an instrument signed by such receiver or trustee shall be deemed the
equivalent of any similar instrument of the Company or any Guarantor, as
applicable, or of any officer or officers thereof required by the provisions of
this Article 14.
SECTION 14.09. Release upon Termination of Company's Obligation.
In the event that the Company's obligations under this Indenture and
the Notes have been satisfied and discharged in accordance with the terms hereof
and thereof or otherwise Legally Defeased in accordance with the provisions of
Article 8 hereof, the Trustee shall (i) execute and deliver such releases,
termination statements and other instruments (in recordable form, where
appropriate) as the Company or any Guarantor, as applicable, may
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reasonably request to evidence the termination of the Security Interests created
by the Security Documents (at the sole expense of the Company or such Guarantor)
and (ii) not be deemed to hold the Security Interests for its benefit and the
benefit of the Holders.
SECTION 14.10. Limitation on Duty of Trustee and Collateral Agent in Respect of
Collateral.
(a) Each of the Trustee and the Collateral Agent shall have no
duty as to any Collateral in its possession or control or in the possession or
control of any agent or bailee or any income thereon or as to preservation of
rights against prior parties or any other rights pertaining thereto and neither
the Trustee nor the Collateral Agent shall be responsible for filing any
financing or continuation statements or recording any documents or instruments
in any public office at any time or times or otherwise perfecting or maintaining
the perfection of any security interest in the Collateral. Each of the Trustee
and the Collateral Agent shall be deemed to have exercised reasonable care in
the custody of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which it accords its own property and
shall not be liable or responsible for any loss or diminution in the value of
any of the Collateral, by reason of the act or omission of any carrier,
forwarding agency or other agent or bailee selected by the Trustee or the
Collateral Agent, as the case may be, in good faith.
(b) Neither the Trustee nor the Collateral Agent shall be
responsible for the existence, genuineness or value of any of the Collateral or
for the validity, perfection, priority or enforceability of the Liens in any of
the Collateral, whether impaired by operation of law or by reason of any action
or omission to act on its part hereunder, for the validity or sufficiency of the
Collateral or any agreement or assignment contained therein or any of the
Security Documents, for the validity of the title of the Company to the
Collateral, for insuring the Collateral or for the payment of taxes, charges,
assessments or Liens upon the Collateral or otherwise as to the maintenance of
the Collateral. The Trustee shall have no duty to ascertain or inquire as to the
performance or observance of any of the terms of this Indenture or the Security
Documents by the Company or the Collateral Agent.
SECTION 14.11. Authorization of Trustee and Collateral Agent.
Each of the Trustee and the Collateral Agent is hereby authorized to
enter into any Security Document or any other document necessary or appropriate
in connection with any such Security Document.
SECTION 14.12. Liability of the Collateral Agent.
(a) Neither the Collateral Agent nor any of its respective
officers, directors, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of any other Person or to take any other action whatsoever with
regard to the Collateral or any part thereof. The powers conferred on the
Collateral Agent hereunder are solely to protect the Collateral Agent's interest
in the Collateral and shall not impose any duty upon the Collateral Agent to
exercise any such powers. The Collateral Agent shall be accountable only for
amounts that it actually receives as a result of the exercise of such powers,
and neither the Collateral Agent nor any of its officers, directors, employees
or agents shall be responsible for any act or failure to act under the Security
Documents, except for its own gross negligence or willful misconduct.
(b) The Collateral Agent is authorized and directed to (i) enter
into the Security Documents (including, without limitation, the Intercreditor
Agreement), (ii) bind the Holders on the terms as set forth therein and (iii)
perform and observe its obligations under the Security Documents (including,
without limitation, the Intercreditor Agreement).
SECTION 14.13. Amendments to Security Documents.
Without the consent of any Holder, any amendment, waiver or consent
agreed to by the Senior Collateral Agent or the holders of Senior Lender Claims
under any provision of any of the Security Documents granting the First Priority
Lien on any Collateral to secure the Senior Lender Claims will automatically
apply to the comparable provision of the comparable Security Document entered
into in connection with the Notes, as provided in the Intercreditor Agreement.
The Company shall also be entitled to other releases of the Collateral or the
Subsidiary
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Guarantees as described in Sections 14.03 and 11.06 hereof. If the Company
wishes under other circumstances to obtain an amendment or waiver or seek a
consent under any Security Document, the Company shall be entitled to do so if
the Company mails written notice of its request to the Trustee and the Holders
and if the Company does not receive written objections from Holders of at least
25% in principal amount of the Notes within 20 Business Days after that mailing.
If the Company receives such objections, then it shall not be entitled to effect
that amendment or waiver, and such consent shall not be effective, unless the
Company obtains the consent of the Holders of a majority in outstanding
principal amount of the Notes then outstanding voting as a single class
(including, without limitation, consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes)."
13. INTEREST RATE. The interest rate on the Notes is hereby deemed to
be increased from 11% per annum to 11.5% per annum as of April 1, 2004 until
maturity thereof.
14. GOVERNING LAW. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE, WITHOUT GIVING
EFFECT TO THE APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
15. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
16. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
17. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Company.
18. RATIFICATION OF INDENTURE; SUPPLEMENTAL PART OF INDENTURE. Except
as specifically amended and supplemented by this Supplemental Indenture, the
Indenture shall remain in full force and effect and is hereby ratified and
confirmed. This Supplemental Indenture shall form a part of the Indenture for
all purposes, and every Holder of a Note heretofore or hereafter authenticated
and delivered shall be bound hereby.
19. VALIDITY; ENFORCEABILITY. In case any provisions in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
20. THIRD-PARTY BENEFICIARY. Nothing in this Supplemental Indenture,
express or implied, shall give to any Person, other than the parties hereto and
their successors under the Indenture and the Holders of the Notes, any benefit
or any legal or equitable right, remedy or claim under the Indenture.
21. OPERATIVENESS. This Supplemental Indenture shall be effective upon
execution and delivery by all parties hereto. This Supplemental Indenture shall
become operative on the date of receipt by the Trustee of an Officers'
Certificate certifying that the Conditions (as defined in the Solicitation
Statement) have been duly performed and complied with or (if permitted) waived
by the Company.
22. SUPERCEDE. This Supplemental Indenture shall amend, replace and
supercede the First Supplemental Indenture, dated as of April 20, 2004, among
the Company, the Guarantor parties thereto and Wachovia Bank, National
Association (formerly, First Union National Bank), as Trustee.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of April 20, 2004.
AAIPHARMA INC.
By: /s/ Xxxxxxx X. Xxxxx, Jr.
------------------------------------
Name: Xxxxxxx X. Xxxxx, Jr.
Title: Executive Vice
President
APPLIED ANALYTICAL INDUSTRIES
LEARNING CENTER, INC.
By: /s/ Xxx Xxxxxx
------------------------------------
Name: Xxx Xxxxxx
Title: Vice President
AAI JAPAN, INC.
By: /s/ Xxxxxxx X. Xxxxx, Jr.
------------------------------------
Name: Xxxxxxx X. Xxxxx, Jr.
Title: Vice President
AAI PROPERTIES, INC.
(F/K/A MALVERN ACQUISITION, INC.)
By: /s/ Xxxxxxx X. Xxxxx, Jr.
------------------------------------
Name: Xxxxxxx X. Xxxxx, Jr.
Title: Vice President
AAI TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxx, Jr.
------------------------------------
Name: Xxxxxxx X. Xxxxx, Jr.
Title: Vice President
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KANSAS CITY ANALYTICAL SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx, Jr.
------------------------------------
Name: Xxxxxxx X. Xxxxx, Jr.
Title: Vice President
AAI DEVELOPMENT SERVICES, INC.
(F/K/A AAI INTERNATIONAL, INC.)
By: /s/ Xxxxxxx X. Xxxxx, Jr.
------------------------------------
Name: Xxxxxxx X. Xxxxx, Jr.
Title: Vice President
AAIPHARMA LLC (F/K/A NEOSAN
PHARMACEUTICALS, INC.)
By: /s/ Xxxxxxx X. Xxxxx, Jr.
------------------------------------
Name: Xxxxxxx X. Xxxxx, Jr.
Title: Vice President
AAI DEVELOPMENT SERVICES, INC.
(F/K/A AAI INTERNATIONAL CLINICAL
TRIALS, INC., F/K/A MEDICAL &
TECHNICAL RESEARCH ASSOCIATES, INC.)
By: /s/ Xxxxxxx X. Xxxxx, Jr.
------------------------------------
Name: Xxxxxxx X. Xxxxx, Jr.
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS TRUSTEE
By: /s/ Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Assistant Vice President
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