FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND WAIVER
Exhibit
10.8
FIRST
AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT AND WAIVER
THIS
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND
WAIVER,
dated
as of January 26, 2006 (this “Amendment”),
is by
and among XXXXXXX
PHARMACEUTICALS, INC., a
Delaware corporation (the “Borrower”),
those
Domestic Subsidiaries of the Borrower identified as “Guarantors” on the
signature pages hereto and such other Domestic Subsidiaries of the Borrower
as
may from time to time become a party hereto (collectively, the “Guarantors”),
and
WACHOVIA
BANK, NATIONAL ASSOCIATION,
a
national banking association, as administrative agent for the Lenders (in such
capacity, the “Administrative
Agent”).
W
I T N E S S E T H
WHEREAS,
the
Borrower, the Guarantors, the lenders party thereto (the “Lenders”)
and
the Administrative Agent are parties to that certain Amended and Restated Credit
Agreement dated as of November 14, 2005 (as amended, restated, amended and
restated, modified or supplemented from time to time, the “Credit
Agreement”;
capitalized terms used herein shall have the meanings ascribed thereto in the
Credit Agreement unless otherwise defined herein);
WHEREAS,
the
Borrower has failed to deliver to the Administrative Agent quarterly financial
statements for the fiscal quarter ended September 30, 2005 by November 30,
2005,
in violation of Section 5.1(b) of the Credit Agreement (the “Section
5.1(b) Event of Default”);
WHEREAS,
the
Borrower has failed to deliver to the Administrative Agent complete monthly
financial statements for the month ended November 30, 2005, in violation of
Section 5.1(c) of the Credit Agreement (the “Section
5.1(c) Event of Default”);
WHEREAS,
the
Borrower failed to maintain Consolidated EBITDA for the Borrower and its
Subsidiaries’ of at least $42,200,000 for the fiscal year ended December 31,
2004 after giving effect to the acquisition of Bioglan Pharmaceuticals, Inc.
on
a pro form a basis, in violation of Section 5.9(d) of the Credit Agreement
(the
“Section
5.9(d) Event of Default”);
WHEREAS,
the
Borrower has failed to deliver to the Lenders the audited balance sheet and
the
related statements of income and of cash flows of the Borrower for the fiscal
year ended December 31, 2004 by December 31, 2005, in violation of Section
5.14(a) of the Credit Agreement (the “Section
5.14(a) Event of Default”);
WHEREAS,
the
Borrower has failed to timely give written notice to the Administrative Agent
of
the Acknowledged Events of Default (as defined below), in violation of Section
5.7(b) of the Credit Agreement (the “Section
5.7(b) Event of Default”;
and
together with the Section 5.1(b) Event of Default, the Section 5.1(c) Event
of
Default, the Section 5.9(d) Event of Default and the Section 5.14(a) Event
of
Default, the “Acknowledged
Events of Default”);
WHEREAS,
the
Borrower has requested the Required Lenders (a) waive the Acknowledged Events
of
Default and (b) amend certain provisions of the Credit Agreement;
and
WHEREAS,
the
Required Lenders are willing to waive the Acknowledged Events of Default and
amend the Credit Agreement, in each case subject to the terms and conditions
hereof.
NOW,
THEREFORE,
in
consideration of the agreements hereinafter set forth, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION
1
WAIVER
1.1 Waiver
of Acknowledged Events of Default.
Notwithstanding
the provisions of the Credit Agreement to the contrary, the Lenders hereby
waive, on a one-time basis, the Acknowledged Events of Default.
1.2 Effectiveness
of Waiver.
This
Waiver shall be effective only to the extent specifically set forth herein
and
shall not (a) be construed as a waiver of any breach or default other than
as
specifically waived herein nor as a waiver of any breach or default of which
the
Lenders have not been informed by the Borrower, (b) affect the right of the
Lenders to demand compliance by the Borrower with all terms and conditions
of
the Credit Agreement, except as specifically modified or waived by this Waiver,
(c) be deemed a waiver of any transaction or future action on the part of the
Borrower requiring the Lenders’ or the Required Lenders’ consent or approval
under the Credit Agreement, or (d) except as waived hereby, be deemed or
construed to be a waiver or release of, or a limitation upon, the Administrative
Agent’s or the Lenders’ exercise of any rights or remedies under the Credit
Agreement or any other Credit Document, whether arising as a consequence of
any
Event of Default which may now exist or otherwise, all such rights and remedies
hereby being expressly reserved.
1.3 Acknowledgement
of Default Rate.
Notwithstanding
the provisions of the Credit Agreement to the contrary, the Lenders acknowledge
that, beginning as of the effective date of this Amendment, the default interest
set forth in Section 2.9 of the Credit Agreement shall cease as to the
Acknowledged Events of Default.
SECTION
2
AMENDMENTS
2.1 New
Definition.
The
following definitions are hereby added to Section 1.1 of the Credit Agreement
in
the appropriate alphabetical order:
“Current
Filer”
shall mean
the
Borrower has filed all required financial statements on Form 10-Q and Form
10-K
with the SEC (including, without limitation, the
2
Borrower’s
annual financial statements on Form 10-K for its fiscal year ended December
31,
2005).
“Initial
MediGene Payment”
shall mean the $5,000,000 up-front payment and additional operating costs
required under the MediGene Licensing Agreement, in an amount not to exceed
$500,000, made by the Borrower to MediGene upon execution of the MediGene
Licensing Agreement.
“MediGene”
shall mean MediGene AG.
“MediGene
Acquisition”
shall mean the execution and delivery by the Borrower and MediGene of a
collaboration and license agreement (the “MediGene
Licensing Agreement”)
and the payment of any obligation by the Borrower thereunder (other than the
Initial MediGene Payment), pursuant to which the Borrower is granted the
exclusive right to market and promote a treatment for external genital warts
in
the United States.
“MediGene
Licensing Agreement”
shall have the meaning set forth in the definition of MediGene
Acquisition.
2.2 Amendment
to Section 1.1.
The
definition of “Commitment Period” in Section 1.1 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
“Commitment
Period”
shall mean (a) with respect to Revolving Loans, the period (i) from and
including the Closing Date to but excluding the Revolving Commitment Termination
Date and (ii) in which the Borrower (A)
is
a Current Filer and (B)
upon becoming a Current Filer, has
demonstrated compliance with each of the financial covenants set forth in
Section 5.9 and (b) with respect to Letters of Credit, the period (i) from
and
including the Closing Date to but excluding the date that is thirty (30) days
prior to the Revolving Commitment Termination Date and (ii) in which the
Borrower (A)
is
a Current Filer and (B)
upon becoming a Current Filer, has
demonstrated compliance with each of the financial covenants set forth in
Section 5.9.
2.3 Amendment
to Section 1.1.
The
definition of “Consolidated EBITDA” in Section 1.1 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
“Consolidated
EBITDA”
shall mean,
for
any period, the sum of (i) Consolidated
Net Income for such period, plus
(ii) an
amount which, in the determination of Consolidated Net Income for such period,
has been deducted for (A) Consolidated Interest Expense, (B) total
federal, state, local and foreign income, value added and similar taxes,
(C) depreciation, amortization expense and (D) certain
one-time professional and legal fees and non-cash items incurred during such
period, as set forth on Schedule
1.1-4
,
minus
(iii) any non-cash reduction in any reserve account of a Credit Party during
such period, all as determined in accordance with GAAP.
3
2.4 Amendment
to Section 1.1.
The
definition of “Permitted Acquisition” in Section 1.1 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
“Permitted
Acquisition”
shall mean (a)
the
Initial MediGene Payment, (b)
the
MediGene Acquisition or (c)
any
other acquisition or any series of related acquisitions by a Credit Party of
(i)
all
or substantially all of the assets or a majority of the outstanding Voting
Stock
or economic interests of a Person that is incorporated, formed or organized
in
the United States or (ii)
any
division, line of business or other business unit of a Person that is
incorporated, formed or organized in the United States (such Person or such
division, line of business or other business unit of such Person shall be
referred to herein as the “Target”),
in each case that is a type of business (or assets used in a type of business)
permitted to be engaged in by the Credit Parties and their Subsidiaries pursuant
to Section 6.3 hereof, so long as, with respect to any acquisition pursuant
to clause (b) or (c) above, the following conditions are satisfied:
(A)
no
Default or Event of Default shall then exist or would exist after giving effect
thereto, (B)
the
Credit Parties shall demonstrate to the reasonable satisfaction of the
Administrative Agent and the Required Lenders that, after giving effect to
the
acquisition on a pro forma basis, the Credit Parties are in compliance with
each
of the financial covenants set forth in Section 5.9, (C)
the
Administrative Agent, on behalf of the Lenders, shall have received (or shall
receive in connection with the closing of such acquisition) a first priority
perfected security interest in all property (including, without limitation,
Capital Stock and real estate) acquired with respect to the Target in accordance
with the terms of Sections 5.10 and 5.12 and the Target, if a Person, shall
have
executed a Joinder Agreement in accordance with the terms of Section 5.10,
(D)
the
Administrative Agent and the Lenders shall have received (I) a
description of the material terms of such acquisition, (II) audited financial
statements (or, if unavailable, management-prepared financial statements) of
the
Target (other than the MediGene Acquisition) for its two (2) most recent fiscal
years and for any fiscal quarters ending within the fiscal year to date and
(III) consolidated projected income statements of the Borrower and its
consolidated Subsidiaries (giving effect to such acquisition), all in form
and
substance reasonably satisfactory to the Administrative Agent, (E)
the
Target (other than the MediGene Acquisition) shall have earnings before
interest, taxes, depreciation and amortization for the four (4) fiscal quarter
period prior to the acquisition date in an amount greater than $0,
(F)
such acquisition shall not be a “hostile” acquisition and shall have been
approved by the Board of Directors and/or shareholders of the applicable Credit
Party and the Target, (G)
the
Borrower shall have satisfied the requirements set forth in Sections 5.14(a)
and
(b), (H)
after giving effect to such acquisition, there shall be at least
$10,000,000 of
Accessible Borrowing Availability under the Revolving Committed Amount and
(I)
the
aggregate consideration (including without limitation equity consideration,
earn
outs or deferred compensation or non-competition arrangements and the amount
of
Indebtedness and other liabilities assumed by the Credit Parties and their
Subsidiaries) paid by the Credit Parties and their Subsidiaries (y) in
connection with any individual acquisition shall not exceed $20,000,000 and
(z)
for all acquisitions made during any twelve-month period shall not exceed
$30,000,000.
4
2.5 Amendment
to Section 5.1(a).
Section
5.1(a) is hereby amended and restated in its entirety to read as follows:
(a) Annual
Financial Statements.
Subject to the terms of Section 5.14(a), as soon as available, and in any event
no later than the earlier of (i) the date the Borrower is required by the SEC
to
deliver its Form 10-K for any fiscal year of the Borrower and (ii)
ninety (90) days after the end of each fiscal year of the Borrower
(provided
that
such financial statements for the fiscal year ended December 31, 2005 shall
be
delivered no later than April 30, 2006), a copy of the consolidated and
consolidating balance sheet of the Borrower and its consolidated Subsidiaries
as
at the end of such fiscal year and the related consolidated and consolidating
statements of income and retained earnings and of cash flows of the Borrower
and
its consolidated Subsidiaries for such year, audited (with respect to the
consolidated statements only) by a firm of independent certified public
accountants of nationally recognized standing reasonably acceptable to the
Administrative Agent, in each case setting forth in comparative form
consolidated and consolidating figures
for the preceding fiscal year, reported on without a “going concern” or like
qualification or exception, or qualification indicating that the scope of the
audit was inadequate to permit such independent certified public accountants
to
certify such financial statements without such qualification;
2.6 Amendment
to Section 5.1(b).
Section
5.1(b) is hereby amended and restated in its entirety to read as
follows:
(b) Quarterly
Financial Statements.
As
soon as available, and in any event no later than the earlier of (i) the date
the Borrower is required by the SEC to deliver its Form 10-Q for each of the
first three fiscal quarters of the Borrower and (ii) forty-five (45) days after
the end of each of the first three fiscal quarters of the Borrower, a
company-prepared consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such period and related company-prepared
consolidated statements
of income and retained earnings and cash flows for the Borrower and its
consolidated Subsidiaries for such quarterly period and for the portion of
the
fiscal year ending with such period, in each case setting forth in comparative
form consolidated figures for the corresponding period or periods of the
preceding fiscal year (subject to normal recurring year-end audit adjustments)
and including management discussion and analysis of operating results inclusive
of operating metrics in comparative form and a summary of accounts receivable
and accounts payable aging reports in form satisfactory to the Lenders;
provided
that
(i)
once the Borrower is a Current Filer, the Borrower shall complete all Compliance
Certificates based on financial information set forth in the Borrower’s
quarterly and annual financial statements on Form 10-Q and Form 10-K as filed
with the SEC and (ii)
with respect to the fiscal quarters ended March 31, 2005, June 30, 2005 and
September 30, 2005, the Borrower shall deliver such quarterly financial
statements on or before March 31, 2006;
2.7 Amendment
to Section 5.1(c).
Section
5.1(c) is hereby amended and restated in its entirety to read as
follows:
5
(c) [reserved];
and
2.8 Amendment
to Section 5.1(d).
Section
5.1(d) is hereby amended and restated in its entirety to read as
follows:
(d) Annual
Budget Plan.
As
soon as available, but in any event within forty-five days (45)
after the
end of each fiscal year (provided
that
such annual budget for the fiscal year ending December 31, 2006 shall be
delivered no later than May 31, 2006), a copy of the detailed annual budget
or
plan including cash flow projections of the Borrower for the next fiscal year
on
a quarterly basis, in form and detail reasonably acceptable to the
Administrative Agent and the Required Lenders, together with a summary of the
material assumptions made in the preparation of such annual budget or
plan;
2.9 Amendment
to Section 5.2(b).
Section
5.2(b) is hereby amended and restated in its entirety to read as
follows:
(b) concurrently
with the delivery of the financial statements referred to in Sections 5.1(a)
and
5.1(b) above, a certificate of a Responsible Officer stating that, to the best
of such Responsible Officer’s knowledge, during such period each of the Credit
Parties observed or performed in all material respects all of its covenants
and
other agreements, and satisfied in all material respects every condition,
contained in this Credit Agreement to be observed, performed or satisfied by
it,
and that such Responsible Officer has obtained no knowledge of any Default
or
Event of Default except as specified in such certificate and such certificate
shall include the calculations in reasonable detail required to indicate
compliance with Section 5.9 as of the last day of such period
(“Compliance
Certificate”);
provided
that
(i) the Credit Parties shall not be required to furnish a Compliance Certificate
with respect to the quarterly financial statements of the Borrower for the
fiscal quarters ended March 31, 2005, June 30, 2005 and September 30, 2005
and
(ii) the Credit Parties shall not be required to furnish any Compliance
Certificate prior to furnishing a Compliance Certificate concurrently with
the
delivery of the annual financial statements of the Borrower for the fiscal
year
ended December 31, 2005;
2.10 Amendment
to Section 5.2.
Section
5.2 is hereby amended by adding a new subsection (h) to read as follows and
making the appropriate grammatical and punctuation changes thereto:
(h)
as
soon as available, but in any event within thirty (30) days after the end of
each fiscal month of the Borrower, until the Borrower is a Current Filer, a
certificate of a Responsible Officer certifying compliance with the first
sentence of Section 5.9(c) as of the last day of the preceding month and
providing any documentary evidence thereof that the Administrative Agent may
reasonably request.
6
2.11 Amendment
to Section 5.9(c).
Section
5.9(c) is hereby amended and restated in its entirety to read as
follows:
(c) Minimum
Cash Balance.
The
Borrower shall have not less than (a)
until the Borrower becomes a Current Filer, $45,000,000 and (b) once the
Borrower becomes a Current Filer, $25,000,000, in each case of unrestricted
cash
and Cash Equivalents in an account(s) at Wachovia Bank, National Association
and/or in which the Administrative Agent has a perfected security interest
under
the UCC (the “Controlled
Accounts”).
Until the Borrower (i)
is
a Current Filer and (ii)
upon becoming a Current Filer, has
demonstrated compliance with each of the financial covenants set forth in this
Section 5.9,
the
Borrower agrees that, regardless of whether a Default or Event of Default has
occurred and is continuing, the Administrative Agent will exercise exclusive
control over the Controlled Accounts and any withdrawal from the Controlled
Accounts will be subject to the Administrative Agent’s consent.
2.12 Amendment
to Section 5.9(d).
Section
5.9(d) is hereby amended and restated in its entirety to read as
follows:
(d)
Minimum
Consolidated EBITDA.
Consolidated EBITDA of the Borrower and its Subsidiaries shall be at least
(a)
$33,220,000 for the fiscal year ended December 31, 2004 after giving effect
to
the acquisition of Bioglan Pharmaceuticals, Inc. on a pro forma basis and
(b)
$40,000,000 for the fiscal year ended December 31, 2005.
2.13 Amendment
to Section 5.14(a).
Section
5.14(a) is hereby amended by replacing “December 31, 2005” with “January 31,
2006”.
2.14 Amendment
to Section 5.14(b).
Section
5.14(b) is hereby amended and restated in its entirety to read as
follows:
(b)
The
Borrower shall be a Current Filer by April 30, 2006.
2.15 Amendment
to Schedule 1.1-4.
Schedule
1.1-4
is
hereby added to the Credit Agreement in the form as set forth on Appendix
A
to this
Amendment.
SECTION
3
CONDITIONS
TO EFFECTIVENESS
3.1 Conditions
to Effectiveness.
This
Amendment shall be and become effective as of the date first above written
upon
satisfaction of the following conditions (in form and substance reasonably
acceptable to the Administrative Agent):
(a) Executed
Amendment.
Receipt
by the Administrative Agent of a copy of this Amendment duly executed by each
of
the Credit Parties and the Administrative Agent, on behalf of the Required
Lenders.
7
(b) Executed
Consents.
Receipt
by the Administrative Agent of executed consents from the Required Lenders
(each
a “Lender
Consent”)
authorizing the Administrative Agent to enter into this Amendment on their
behalf.
(c) Fees
and Expenses.
The
Administrative Agent shall have received from the Borrower, on behalf of each
Lender that executes and delivers a Lender Consent to the Administrative Agent
by 10:00 a.m. (EST) on January 27, 2006, an amendment fee in an amount equal
to
25 basis points of such Lender’s outstanding Loans and unfunded Commitments. In
addition, the Administrative Agent shall have received from the Borrower such
other fees and expenses that are payable in connection with the consummation
of
the transactions contemplated hereby.
(d) Miscellaneous.
All
other documents and legal matters in connection with the transactions
contemplated by this Amendment shall be reasonably satisfactory in form and
substance to the Administrative Agent and its counsel.
SECTION
4
MISCELLANEOUS
4.1 Representations
and Warranties. Each
of
the Credit Parties represents and warrants as follows as of the date hereof,
after giving effect to this Amendment:
(a) It
has
taken all necessary action to authorize the execution, delivery and performance
of this Amendment.
(b) This
Amendment has been duly executed and delivered by such Person and constitutes
such Person’s valid and legally binding obligations, enforceable in accordance
with its terms, except as such enforceability may be subject to
(i) bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or similar laws affecting creditors’ rights generally and
(ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
(c) No
consent, approval, authorization or order of, or filing, registration or
qualification with, any Governmental Authority or third party is required in
connection with the execution, delivery or performance by such Person of this
Amendment.
(d) The
representations
and warranties set forth in Article III of the Credit Amendment are true
and correct as of the date hereof (except for those which expressly relate
to an
earlier date).
(e) After
giving effect to this Amendment, no event has occurred and is continuing which
constitutes a Default or an Event of Default.
8
(f) The
Security Documents continue to create a valid security interest in, and Lien
upon, the Collateral, in favor of the Administrative Agent, for the benefit
of
the Lenders, which security interests and Liens are perfected in accordance
with
the terms of the Security Documents and prior to all Liens other than Permitted
Liens.
(g) The
Credit Party Obligations are not reduced or modified by this Amendment and
are
not subject to any offsets, defenses or counterclaims.
4.2 Instrument
Pursuant to Credit Agreement.
This
Amendment is a Credit Document executed pursuant to the Credit Agreement and
shall be construed, administered and applied in accordance with the terms and
provisions of the Credit Agreement.
4.3 Reaffirmation
of Credit Party Obligations.
Each
Credit Party hereby ratifies the Credit Agreement and acknowledges and reaffirms
(a) that it is bound by all terms of the Credit Agreement applicable to it
and
(b) that it is responsible for the observance and full performance of its
respective Credit Party Obligations.
4.4 Survival.
Except
as expressly modified and amended in this Amendment, all of the terms and
provisions and conditions of each of the Credit Documents shall remain
unchanged.
4.5 Expenses.
The
Borrower agrees to pay all reasonable costs and expenses of the Administrative
Agent in connection with the preparation, execution and delivery of this
Amendment, including without limitation the reasonable expenses of the
Administrative Agent’s legal counsel.
4.6 Further
Assurances.
The
Credit Parties agree to promptly take such action, upon the request of the
Administrative Agent, as is necessary to carry out the intent of this
Amendment.
4.7 Entirety.
This
Amendment and the other Credit Documents embody the entire agreement among
the
parties hereto and supersede all prior agreements and understandings, oral
or
written, if any, relating to the subject matter hereof.
4.8 Counterparts/Telecopy.
This
Amendment may be executed in any number of counterparts, each of which when
so
executed and delivered shall be an original, but all of which shall constitute
one and the same instrument. Delivery of executed counterparts of this Amendment
by telecopy shall be effective as an original and shall constitute a
representation that an original shall be delivered.
4.9 No
Actions, Claims, Etc.
As of
the date hereof, each of the Credit Parties hereby acknowledges and confirms
that it has no knowledge of any actions, causes of action, claims, demands,
damages and liabilities of whatever kind or nature, in law or in equity, against
the Administrative Agent, the Lenders, or the Administrative Agent’s or the
Lenders’ respective officers, employees, representatives, agents, counsel or
directors arising from any action by such
9
Persons,
or failure of such Persons to act under this Credit Agreement on or prior to
the
date hereof.
4.10 Governing
Law.
THIS
AGREEMENT SHALL BE DEEMED TO BE A CONTRACT UNDER AND GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE
NEW
YORK GENERAL OBLIGATIONS LAW).
4.11 Successors
and Assigns.
This
Amendment shall be binding upon and inure to the benefit of the Credit Parties,
the Administrative Agent, the Lenders and their respective successors and
assigns.
4.12 General
Release.
In
consideration of the Administrative Agent entering into this Amendment, each
Credit Party hereby releases the Administrative Agent, the Lenders, and the
Administrative Agent’s and the Lenders’ respective officers, employees,
representatives, agents, counsel and directors from any and all actions, causes
of action, claims, demands, damages and liabilities of whatever kind or nature,
in law or in equity, now known or unknown, suspected or unsuspected to the
extent that any of the foregoing arises from any action or failure to act under
the Credit Agreement on or prior to the date hereof, except, with respect to
any
such person being released hereby, any actions, causes of action, claims,
demands, damages and liabilities arising out of such person’s gross negligence,
bad faith or willful misconduct.
4.13 Waiver
of Jurisdiction; Service of Process; Arbitration; Waiver of Jury Trial; Waiver
of Consequential Damages.
The
jurisdiction, service of process and waiver of jury trial provisions set forth
in Sections 9.14, 9.15 and 9.17 of the Credit Agreement are hereby incorporated
by reference, mutatis
mutandis.
[Signature
Pages to Follow]
10
XXXXXXX
PHARMACEUTICALS, INC.
FIRST
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND WAIVER
IN
WITNESS WHEREOF,
each of
the parties hereto has caused a counterpart of this Amendment to be duly
executed and delivered as of the date first above written.
| BORROWER: | XXXXXXX
PHARMACEUTICALS, INC., a Delaware corporation |
|
| |
|
|
| : | By: | /s/ Xxxxxx Xxxxxxxx |
|
Name: Xxxxxx
Xxxxxxxx
|
||
| Title: President & CEO | ||
| GUARANTORS: | XXXX
DERMATOLOGICS, INC., a New York corporation |
|
| |
|
|
| By: | /s/ Xxxxxx Xxxxxxxx | |
|
Name: Xxxxxx
Xxxxxxxx
|
||
| Title: President & CEO | ||
| BIOGLAN
PHARMACEUTICALS CORP., a Delaware corporation |
||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxxxx | |
|
Name: Xxxxxx
Xxxxxxxx
|
||
| Title: President & CEO | ||
XXXXXXX
PHARMACEUTICALS, INC.
FIRST
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND WAIVER
| ADMINISTRATIVE AGENT: | WACHOVIA
BANK, NATIONAL ASSOCIATION, as Administrative Agent on behalf of the Lenders and as a Lender |
|
| |
|
|
| By: | /s/ Xxxxx XxXxx | |
|
Name: Xxxxx
XxXxx
|
||
| Title: Vice President | ||
Appendix
A
Schedule
1.1-4
FIRST
AMENDMENT CONSOLIDATED EBITDA ADD-BACKS
|
Estimated
Legal, Other Professional and Deferred Financing Cost Write-Off
Expenses
|
||||||||
|
FY
2005
|
LTM
3/31/06
|
LTM
6/30/06
|
LTM
9/30/06
|
|||||
|
Legal
|
$2,998,243
|
$2,118,827
|
$989,675
|
$199,039
|
||||
|
Other
Professional
|
2,638,474
|
2,074,914
|
1,265,396 |
511,221 |
||||
|
Deferred
Financing Write-Off
|
3,988,964
|
3,988,964
|
3,988,964
|
3,988,964
|
||||
|
$9,615,681
|
$8,182,704
|
$6,244,035
|
$4,699,225
|
|||||
