THIRD AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
EXHIBIT 10.16.4
THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN AGREEMENT
SECOND AMENDED AND RESTATED LOAN AGREEMENT
THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT (this “Amendment”),
dated April 6, 2008, is made and entered into on the terms and conditions hereinafter set forth, by
and between CUMBERLAND PHARMACEUTICALS, INC., a Tennessee corporation (the “Borrower”), and
BANK OF AMERICA, N.A., a national banking association (the “Bank”).
RECITALS:
1. The Borrower and the Bank are parties to a Second Amended and Restated Agreement dated as
of April 6, 2006, as amended by that certain First Amendment to Second Amended and Restated Loan
Agreement dated as of December 31, 2006, as further amended by that certain Second Amendment to
Second Amended and Restated Loan Agreement dated as of July 18, 2007 (as the same heretofore has
been or hereafter may be further amended, restated, supplemented, extended, renewed, replaced or
otherwise modified from time to time, the “Loan Agreement”), pursuant to which the Bank has
agreed to extend credit to the Borrower subject to and upon the terms and conditions set forth in
the Loan Agreement.
2. The parties hereto desire to amend the Loan Agreement in certain respects as more
particularly hereinafter set forth.
3. Capitalized terms used but not otherwise defined in this Amendment shall have the same
meanings as in the Loan Agreement.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth,
and for other good and valuable consideration, the receipt and sufficiency of all of which are
hereby acknowledged, the parties hereto agree as follows:
1. Amendment of Section 1.2. Section 1.2 (Availability Period) of the Loan Agreement
is hereby amended by deleting the last sentence of Section 1.2 and substituting the following in
lieu thereof:
Thereafter, the maximum availability under the Facility No. 1 Commitment shall be
$4,000,000 until the third (3rd) anniversary of the date of this Agreement, or such
earlier date as the availability may terminate as provided in this Agreement (the
“Facility No. 1 Expiration Date”).
2. Representations and Warranties of the Borrower. As an inducement to the Bank to
enter into this Amendment, the Borrower hereby represents and warrants that on and as of the date
hereof, and taking into account the provisions hereof, the representations and warranties contained
in the Loan Agreement and the other Loan Documents are true and correct in all material respects,
except for representations and warranties that expressly relate to an earlier date, which remain
true and correct as of said earlier date.
3. Effect of Amendment; Continuing Effectiveness of Loan Agreement and Loan Documents.
(a) Neither this Amendment nor any other indulgences that may have been granted to the
Borrower by the Bank shall constitute a course of dealing or otherwise obligate the Bank to
modify, expand or extend the agreements contained herein, to agree to any other amendments
to
the Loan Agreement or to grant any consent to, waiver of or indulgence with respect to any
other noncompliance with any provision of the Loan Documents.
(b) Upon and after the effectiveness of this Amendment, each reference in the Loan
Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to
the Loan Agreement, and each reference in the other Loan Documents to “the Loan Agreement”,
“thereunder”, “thereof” or words of like import referring to the Loan Agreement, shall mean
and be a reference to the Loan Agreement as modified hereby. This Amendment shall
constitute a Loan Document for all purposes of the Loan Agreement and the other Loan
Documents.
(c) Except to the extent amended or modified hereby, the Loan Agreement, the other Loan
Documents and all terms, conditions and provisions thereof shall continue in full force and
effect in all respects and shall be construed in accordance with the modification of the
Loan Agreement effected hereby.
4. Release and Waiver. The Borrower hereby stipulates, acknowledges and agrees that
it has no claims or causes of action of any kind whatsoever against the Bank arising out of or
relating in any way to any event, circumstance, action or failure to act with respect to this
Amendment, the Loan Agreement, the other Loan Documents or any matters described or referred to
herein or therein or otherwise related hereto or thereto. The Borrower hereby releases the Bank
from any and all claims, causes of action, demands and liabilities of any kind whatsoever, whether
direct or indirect, fixed or contingent, liquidated or unliquidated, disputed or undisputed, known
or unknown, that the Borrower may now or hereafter have and that arise out of or relate in any way
to any event, circumstance, action or failure to act on or before the date of this Amendment with
respect to this Amendment, the Loan Agreement, the other Loan Documents or any matters described or
referred to herein or therein or otherwise related hereto or thereto. The release by the Borrower
herein, together with the other terms and provisions of this Amendment, are entered into by the
Borrower advisedly and without compulsion, coercion or duress, the Borrower having determined that
this Amendment is in the economic best interests of the Borrower. The Borrower represents that it
is entering into this Amendment freely and with the advice of counsel as to its legal alternatives.
5. Further Actions. Each of the parties to this Amendment agrees that at any time and
from time to time upon written request of the other party, it will execute and deliver such further
documents and do such further acts and things as such other party reasonably may request in order
to effect the intents and purposes of this Amendment.
6. Counterparts. This Amendment may be executed in multiple counterparts or copies,
each of which shall be deemed an original hereof for all purposes. One or more counterparts or
copies of this Amendment may be executed by one or more of the parties hereto, and some different
counterparts or copies executed by one or more of the other parties. Each counterpart or copy
hereof executed by any party hereto shall be binding upon the party executing same even though
other parties may execute one or more different counterparts or copies, and all counterparts or
copies hereof so executed shall constitute but one and the same agreement. Each party hereto, by
execution of one or more counterparts or copies hereof, expressly authorizes and directs any other
party hereto to detach the signature pages and any corresponding acknowledgment, attestation,
witness or similar pages relating thereto from any such counterpart or copy hereof executed by the
authorizing party and affix same to one or more other identical counterparts or copies hereof so
that upon execution of multiple counterparts or copies hereof by all parties hereto, there shall be
one or more counterparts or copies hereof to which is(are) attached signature pages containing
signatures of all parties hereto and any corresponding acknowledgment, attestation, witness or
similar pages relating thereto.
7. Miscellaneous.
(a) This Amendment shall be governed by, construed and enforced in accordance with the
laws of the State of Tennessee, without reference to the conflicts or choice of law
principles thereof.
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(b) The headings in this Amendment and the usage herein of defined terms are for
convenience of reference only, and shall not be construed as amplifying, limiting or
otherwise affecting the substantive provisions hereof.
(c) All references herein to the preamble, the recitals or sections, paragraphs,
subparagraphs, annexes or exhibits are to the preamble, recitals, sections, paragraphs,
subparagraphs, annexes and exhibits of or to this Amendment unless otherwise specified. The
words “hereof”, “herein” and “hereunder” and words of similar import, when used in this
Amendment, refer to this Amendment as a whole and not to any particular provision of this
Amendment.
(d) Any reference herein to any instrument, document or agreement, by whatever
terminology used, shall be deemed to include any and all amendments, modifications,
supplements, extensions, renewals, substitutions and/or replacements thereof as the context
may require.
(e) When used herein, (1) the singular shall include the plural, and vice versa, and
the use of the masculine, feminine or neuter gender shall include all other genders, as
appropriate, (2) “include”, “includes” and “including” shall be deemed to be followed by
“without limitation” regardless of whether such words or words of like import in fact follow
same, and (3) unless the context clearly indicates otherwise, the disjunctive “or” shall
include the conjunctive “and”.
[Remainder of Page Intentionally Left Blank;
Signature Pages Follow]
Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
delivered as of the date first written above.
| BORROWER: CUMBERLAND PHARMACEUTICALS, INC. |
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| By: | /s/ X.X. Xxxxxx | |||
| Name: | X.X. Xxxxxx | |||
| Title: | Chief Executive Officer | |||
ACKNOWLEDGED:
CUMBERLAND EMERGING TECHNOLOGIES, INC.
| By: | /s/ X.X. Xxxxxx | |||
| Name: | X.X. Xxxxxx | |||
| Title: | Chief Executive Officer | |||
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[Signature Page to Third Amendment to Second Amended and Restated Loan Agreement
(Cumberland Pharmaceuticals, Inc.) dated April 6, 2008]
(Cumberland Pharmaceuticals, Inc.) dated April 6, 2008]
| BANK: BANK OF AMERICA, N.A. |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Senior Vice President | |||
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