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Exhibit 10.52
[Agency Letter Agreement dated December 2, 1998 by and among the lenders a party
to the Amended, Restated and Consolidated Bridge Loan Agreement, as amended]
December 2, 1998
Xxxxx Partners III, L.P., as Agent
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
Reference is made to the Amended, Restated and Consolidated Bridge Loan
Agreement (the "Consolidated Bridge Loan Agreement") dated as of December 2,
1998, by and among Xxxxxx Drug Co., Inc., a New York corporation (the
"Company"), Xxxxx Partners III, L.P., a Delaware limited partnership ("Xxxxx" or
a "Lender") and certain other parties (each, a "Lender", collectively, the
"Lenders"), and Xxxxx, as agent for the Lenders (in such capacity, the "Agent")
and each of the agreements, documents and instruments executed and delivered
pursuant thereto or in connection therewith (collectively, with the Consolidated
Bridge Loan Agreement, the "Transaction Documents"). Capitalized terms used
herein which are not defined herein have the meanings ascribed to them in the
Consolidate Bridge Loan Agreement.
This will confirm that, notwithstanding anything to the contrary contained
in the Transaction Documents:
1. Appointment of Agent
(a) Each Lender hereby designates Xxxxx as its Agent and irrevocably
authorizes the Agent to take action on its behalf under the Transaction
Documents, to exercise the powers and perform the duties described therein, and
to exercise such other powers reasonably incidental thereto; provided, however,
that each Lender shall retain the sole power and discretion to convert the Note
and exercise the Warrants held by it into Conversion Shares and for Warrant
Shares, as the case may be, and to exercise any registration rights under the
Transaction Documents. The Agent may perform any of its duties through its
agents or employees.
(b) This Section 1 is for the benefit of the Agent and the Lenders
only. The Agent acts only for the Lenders and assumes no obligation to or agency
or trust relationship with the Company or any of its affiliates or subsidiaries,
except for the ratable disbursement to the Lenders of payments received by the
Agent for the account of the Lenders.
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Xxxxx Partners III, L.P
December 2, 1998
2. Nature of Duties of Agent. The Agent has no duties or responsibilities,
except those expressly set forth in this Agreement and the Transaction
Documents. Neither the Agent nor any of its officers, directors, employees or
agents shall be liable for any action taken or omitted hereunder or in
connection herewith. The duties of the Agent shall be mechanical and
administrative in nature. The Agent shall not have a fiduciary relationship to
the Lenders or any participant of the Lenders.
3. Lack of Reliance on Agent. Independently and without reliance upon the
Agent, each Lender has made and shall continue to make its own independent
investigation and analysis of the content and validity of this Agreement and the
Transaction Documents or of the performance and creditworthiness of the Company
thereunder. The Agent assumes no responsibility and undertakes no obligation to
make inquiry with respect to such matters.
4. Certain Rights of the Agent. The Agent may request instructions from
the Lenders at any time. If the Agent requests instructions from the Lenders
with respect to any action or inaction, the Agent shall be entitled to await
instructions from the Lenders before such action or inaction. The Lenders shall
have no right of action based upon the Agent's action or inaction in response to
instructions from the Lenders.
5. Reliance by Agent. The Agent may rely upon written or telephonic
communication it believes to be genuine and to have been signed, sent or made by
the proper person. The Agent may obtain the advice of legal counsel (including,
for matters concerning the Company, counsel for the Company), independent public
accountants and other experts selected by it and shall have no liability for
action or inaction taken or not taken, in good faith, based upon such advice.
6. Indemnification of Agent. Each Lender agrees to reimburse and indemnify
the Agent for any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including attorneys fees and
disbursements) or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in performing its duties
hereunder or otherwise relating to this Agreement and the Transaction Documents,
unless resulting from the Agent's gross negligence or willful misconduct.
7. The Agent in its Individual Capacity. In its individual capacity, the
Agent shall have the same rights and powers hereunder as a Lender and may
exercise them as though it was not performing the duties specified herein.
8. Successor Agent.
(a) The Agent may, upon fifteen (15) business days' notice to each
Lender and the Company, resign by giving written notice thereof to each Lender
and the Company. The Agent's resignation shall be effective upon the appointment
of a successor Agent.
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Xxxxx Partners III, L.P
December 2, 1998
(b) Upon receipt of the Agent's resignation, the Lenders may appoint
a successor Agent. If a successor Agent has not accepted its appointment within
fifteen (15) business days, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent.
(c) Upon its acceptance of the agency hereunder, a successor Agent
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations under this Agreement. The retiring Agent shall
continue to have the benefit of this Agreement for any action or inaction while
it was Agent.
9. Collateral Matters.
(a) The Lenders authorize and direct the Agent to enter into the
other agreements for the benefit of each Lender. Except as otherwise set forth
herein, any action or exercise of powers by the holder or holders of a majority,
in the aggregate, of the Notes then outstanding (the "Majority Holders") shall
be authorized and binding on all Lenders. At any time, without notice to or
consent from the Lenders, the Agent may take any action necessary or advisable
to perfect and maintain the perfection of the Liens on the Collateral.
(b) The Agent is authorized to subordinate or release any Lien
granted to or held by the Agent upon any Collateral. The Agent may request, and
the Lenders will provide, confirmation of the Agent's authority to release
particular types or items of Collateral.
(c) The Agent shall have no obligation to assure that the Collateral
exists or is owned by the Company or any of its Affiliates or Subsidiaries, or
that such Collateral is cared for, protected or insured, or that the Liens on
the Collateral have been created, perfected, or have any particular priority.
With respect to the Collateral, the Agent may act in any manner it may deem
appropriate, in its sole discretion, given Agent's own interest in the
Collateral as a Lender, and it shall have no duty or liability whatsoever to any
of the Lenders, except for its gross negligence or willful misconduct.
10. Actions with Respect to Defaults. In addition to the Agent's right to
take actions on its own accord as permitted under this Agreement, the Agent
shall take such action with respect to a Default or Event of Default as shall be
directed by the Majority Holders. Until the Agent shall have received such
directions, the Agent may act (or not act) as it deems advisable and in the best
interests of the Lenders.
11. Waiver. No failure on the part of the Agent to exercise, and no delay
in exercising, any right, power, or remedy hereunder shall operate as a waiver
thereof.
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Xxxxx Partners III, L.P
December 2, 1998
12. Governing Law. This Agreement is entered into in accordance with and
shall be governed by the laws of the State of New York, without regard to any
principles of conflicts of laws.
13. Severability. If any provision or portion of any provision of this
Agreement is held to be unenforceable or invalid by any court of competent
jurisdiction, the remaining portions of any such provision and the remaining
provisions hereof shall remain in effect.
14. Further Assurances. The Lenders and the Agent shall execute, in a
proper and timely manner, at or after the date hereof, such additional documents
and instruments as may be reasonably requested by the other parties in
connection with the consummation or confirmation of the transactions
contemplated by this Agreement.
15. Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
16. Entire Agreement; Amendment. This Agreement supercedes and replaces,
in its entirety, any previous agreements between the parties relating to the
subject matter hereof, and no modification or amendment may be made except by a
written instrument signed by all parties.
17. Notices. All notices, approvals, consents or other communications
required or desired to be given hereunder shall be delivered in person, by
facsimile transmission followed promptly by first class mail or by overnight
mail, and delivered, if to the Lenders, then to the address set forth opposite
the name of each of the Lenders on the signature page hereof and if to Agent,
then to the attention of Xx. Xxxxx Xxxxxxxxxxx c/o Xxxxx Partners III, L.P.,
Rockefeller Center, 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax
no. (000) 000-0000, with a copy to Xxxxxx X. Xxxxxxxx, Esq. c/o Wolf, Block,
Xxxxxx and Xxxxx-Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax no.
(000) 000-0000.
18. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or any breach or termination thereof, shall be settled by
arbitration in the County of New York in accordance with the laws of the State
of New York, without regard to any of that State's conflict of laws principles
and rules, then obtaining, of the American Arbitration Association or any
successor thereto. Within ten (10) days after a request for arbitration by one
party to the other, an arbitrator shall then be chosen in accordance with the
rules of the American Arbitration Association locate in New York City then
obtaining. The American Arbitration Association shall name the arbitrator. The
arbitration shall be held in New York County, New York. The arbitrator may grant
injunctions or other relief in such dispute or controversy. The decision of
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Xxxxx Partners III, L.P
December 2, 1998
the arbitrator shall be final, conclusive and binding on the parties to the
arbitration. In connection with such arbitration and the enforcement of any
award rendered as a result thereof, the parties hereto irrevocably consent to
the personal jurisdiction of the Courts of the State of New York, and further
consent that any process or notice of motion or other application to the said
Court or Judge thereof may beserved inside or outside the State of New York by
registered mail or personal service, provided a time period of at least twenty
(20) days for appearance is allowed.
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Xxxxx Partners III, L.P
December 2, 1998
Very truly yours,
Address of Xxxxxxx Xxxxxxxx:
0000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000 /s/
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Xxxxxxx Xxxxxxxx
Address of Xxxxx Xxxxxxxx:
0000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000 /s/
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Xxxxx Xxxxxxxx
Address of Xxxxx Partners III, L.P. GALEN PARTNERS III, L.P.
000 Xxxxx Xxxxxx, 0xx Xxxxx By: Claudius, L.L.C., General Partner
Xxx Xxxx, XX 00000
By:/s/
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Member
Address of Xxxxx Partners
International III, L.P. GALEN PARTNERS INTERNATIONAL
000 Xxxxx Xxxxxx, 0xx Xxxxx INTERNATIONAL III, L.P.
Xxx Xxxx, XX 00000 By: Claudius, L.L.C., General Partner
By:/s/
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Name: Xxxxx X. Xxxxxx
Title: Managing Member
Address of Xxxxx Employee XXXXX EMPLOYEE FUND III, L.P.
Fund III, L.P. By: Wesson Enterprises, Inc.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000 By:/s/
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Name: Xxxxx X. Xxxxxx
Title: Managing Member
