Exhibit 10.1
FOURTH AMENDMENT
TO FINANCING AGREEMENT
FOURTH AMENDMENT, dated as of October 22, 2004 (this "Amendment"), to
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").
WHEREAS, the Borrowers, the Agents and the Lenders wish to amend
certain terms and conditions of the Financing 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 two sentences of the first recital to
the Financing Agreement are hereby amended in their 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, (b) a term loan in the aggregate principal
amount of $30,000,000 and (c) 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. The proceeds of the term loans and the loans made
under the revolving credit facility shall be used to, together with the
Net Cash Proceeds (as hereinafter defined) from the MVI Sale (as
hereinafter defined), (i) refinance existing indebtedness of the
Borrowers, (ii) fund the interest payments (and any default interest
payable thereon) due and payable by the Parent on April 1, 2004 and
October 1, 2004, in respect of its Senior Subordinated Notes
(as hereinafter defined), (iii) provide for general working capital and
general corporate purposes of the Borrowers and (iv) to pay fees and
expenses related to this Agreement and the transactions contemplated
hereby."
(b) Definitions. Section 1.01 of the Financing Agreement is
hereby amended as follows:
(i) The definition of the term "Applicable
Incremental Margin" in Section 1.01 of the Financing Agreement is
hereby deleted in its entirety.
(ii) The following definitions in Section 1.01 of the
Financing Agreement are hereby amended in their entirety to read as
follows:
"'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 preceding
reporting period of the Parent and its Subsidiaries, (A) the Applicable
Prepayment Percentage for the Disposition of the property and assets
subject to a Sale and Leaseback Transaction shall equal 50% and (B) the
Applicable Prepayment Percentage for the Calcitriol Disposition shall
equal 0%."
"'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 plus (iii) the principal amount of the
Supplemental 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 plus (iii) the principal amount of the
Supplemental 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 plus (iii) the principal amount of the
Supplemental 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."
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"'Commitments' means, with respect to each Lender, such
Lender's Revolving Credit Commitment, Term Loan Commitment and
Supplemental Term Loan Commitment."
"'Consolidated Net Income' means, with respect to any Person
for any period, the net income (loss) of such Person and its
Subsidiaries for such period, determined on a consolidated basis and in
accordance with GAAP, but excluding from the determination of
Consolidated Net Income (without duplication) (a) any extraordinary or
non-recurring gains or losses or gains or losses from Dispositions
(including, without limitation, in the form of royalties or licensing
fees); provided, that any extraordinary or non-recurring gains or
losses from Specified Events shall not be excluded from Consolidated
Net Income, (b) non-cash restructuring charges, and (c) non-cash
effects of discontinued operations."
"'Loan' means the Term Loan, the Supplemental Term Loan or any
Revolving Loan made by an Agent or a Lender to the Borrowers pursuant
to Article II hereof."
"'Net Cash Proceeds' means, (a) with respect to any
Disposition by any Person or any of its Subsidiaries, an amount equal
to the result of (i) the aggregate amount of cash received (directly or
indirectly) from time to time (whether as initial consideration or
through the payment or disposition of deferred consideration) by or on
behalf of such Person or such Subsidiary in connection therewith, minus
(ii) the sum of (A) the amount of any Indebtedness secured by any Lien
permitted by Section 7.02(a) on any asset (other than Indebtedness
assumed by the purchaser of such asset) which is required to be, and
is, repaid in connection with such Disposition (other than Indebtedness
under this Agreement), (B) costs and expenses related thereto incurred
by such Person or such Subsidiary in connection therewith (including,
without limitation, legal, accounting and investment banking fees, and
underwriting discounts and commissions), (C) transfer taxes paid to any
taxing authorities by such Person or such Subsidiary in connection
therewith, (D) net income taxes to be paid in connection with such
Disposition (after taking into account any tax credits or deductions
and any tax sharing arrangements), (E) reasonable reserves for
indemnification obligations in connection with such Disposition in an
aggregate amount not to exceed $500,000 during the term of this
Agreement and (F) an amount equal to the product of (1) the result of
(x) the aggregate amount of cash described in clause (a)(i) above minus
(y) the sum of the deductions therefrom described in clauses (ii)(A)
through (ii)(E) above times (2) a fraction the numerator of which is
the Applicable Prepayment Premium and the denominator of which is the
sum of (x) 1 plus (y) the Applicable Prepayment Premium, (b) with
respect to the issuance or incurrence of any Indebtedness by any Person
or any of its Subsidiaries, or the sale or issuance by any Person or
any of its Subsidiaries of any shares of its Capital Stock, an amount
equal to the result of (i) the aggregate amount of cash received
(directly or indirectly) from time to time (whether as initial
consideration or through the payment or disposition of deferred
consideration) by or on behalf of such Person or such Subsidiary in
connection therewith, minus (ii) the sum of (A) costs and expenses
related thereto incurred by such Person or such Subsidiary in
connection therewith (including, without limitation, legal, accounting
and investment banking fees,
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and underwriting discounts and commissions), (B) transfer taxes paid by
such Person or such Subsidiary in connection therewith and (C) net
income taxes to be paid in connection therewith (after taking into
account any tax credits or deductions and any tax sharing
arrangements), and (c) with respect to any Extraordinary Receipts
received by any Person or any of its Subsidiaries, an amount equal to
the result of (i) the aggregate amount of cash received (directly or
indirectly) from time to time by or on behalf of such Person or such
Subsidiary in connection therewith, minus (ii) the sum of (A)
reasonable expenses related to the collection thereof incurred by such
Person or such Subsidiary and (B) net income taxes to be paid in
connection with such Extraordinary Receipts (after taking into account
any tax credits or deductions and any tax sharing arrangements); in the
case of each of clauses (a), (b) and (c), to the extent, but only to
the extent, that the amounts so deducted are (xx) actually paid to a
Person that, except in the case of reasonable out-of-pocket expenses,
is not an Affiliate of such Person or any of its Subsidiaries and (yy)
properly attributable to such transaction or to the asset that is the
subject thereof, as the case may be."
"'Pro Rata Share' means:
(a) with respect to a Lender's obligation to make Revolving
Loans and receive payments of interest, fees, and principal with
respect thereto, the percentage obtained by dividing (i) such Lender's
Revolving Credit Commitment, by (ii) the Total Revolving Credit
Commitment, provided, that, if the Total Revolving Credit Commitment
has been reduced to zero, the numerator shall be the aggregate unpaid
principal amount of such Lender's Revolving Loans (including Collateral
Agent Advances) and its interest in the Letter of Credit Obligations
and the denominator shall be the aggregate unpaid principal amount of
all Revolving Loans (including Collateral Agent Advances) and Letter of
Credit Obligations,
(b) with respect to a Lender's obligation to make the Term
Loan and receive payments of interest, fees, and principal with respect
thereto, the percentage obtained by dividing (i) such Lender's Term
Loan Commitment, by (ii) the Total Term Loan Commitment, provided that
if the Total Term Loan Commitment has been reduced to zero, the
numerator shall be the aggregate unpaid principal amount of such
Lender's portion of the Term Loan and the denominator shall be the
aggregate unpaid principal amount of the Term Loan,
(c) with respect to a Lender's obligation to make the
Supplemental Term Loan and receive payments of interest, fees, and
principal with respect thereto, the percentage obtained by dividing (i)
the sum of such Lender's Supplemental Term Loan Commitment plus the
aggregate unpaid principal amount of such Lender's portion of the
Supplemental Term Loan, by (ii) the sum of the Total Supplemental Term
Loan Commitment plus the unpaid principal amount of the Supplemental
Term Loan, and
(d) with respect to all other matters (including, without
limitation, the indemnification obligations arising under Section
10.05), the percentage obtained by dividing (i) the sum of such
Lender's Revolving Credit Commitment plus such Lender's Supplemental
Term Loan Commitment plus the aggregate unpaid principal amount of
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such Lender's portion of the Term Loan and the Supplemental Term Loan,
by (ii) the sum of the Total Revolving Credit Commitment plus the Total
Supplemental Term Loan Commitment plus the aggregate unpaid principal
amount of the Term Loan and the Supplemental Term Loan, provided, that,
if such Lender's Revolving Credit Commitment shall have been reduced to
zero, such Lender's Revolving Credit Commitment shall be deemed to be
the aggregate unpaid principal amount of such Lender's Revolving Loans
(including Collateral Agent Advances) and its interest in the Letter of
Credit Obligations and if the Total Revolving Credit Commitment shall
have been reduced to zero, the Total Revolving Credit Commitment shall
be deemed to be the aggregate unpaid principal amount of all Revolving
Loans (including Collateral Agent Advances) and Letter of Credit
Obligations."
"'Senior Subordinated Note Indenture' means the Indenture,
dated as of March 28, 2002, by and among the Parent and the Trustee for
the Senior Subordinated Noteholders, as amended by the Supplemental
Indenture dated as of April 20, 2004 and as further amended by a Second
Supplemental Indenture on the terms described in the Second Consent
Solicitation Statement."
"'Term Loan Obligations' means any Obligations with respect to
the Term Loan and/or the Supplemental Term Loan (including without
limitation, the principal thereof, the interest thereon, and the fees
and expenses specifically related thereto)."
"'Total Commitment' means the sum of the Total Revolving
Credit Commitment, the Total Term Loan Commitment and the Total
Supplemental Term Loan Commitment."
(iii) The following definitions are hereby added to
Section 1.01 of the Financing Agreement in the appropriate alphabetical
order:
"'Calcitriol Disposition' means the Disposition described in
clause (b) of the definition of Specified Events."
"'Fourth Amendment Effective Date' means the date on which all
of the conditions precedent to the effectiveness of the Fourth
Amendment to Financing Agreement dated as of October 22, 2004, by and
among the Borrowers, the Lenders and the Agents have been fulfilled or
waived."
"'Rothschild' means Rothschild, Inc."
"'Sale Process' has the meaning specified therefor in Section
7.01(s).
"'Second Consent Solicitation Statement' means the Consent
Solicitation Statement, in form and substance reasonably satisfactory
to the Agents, as such Second Consent Solicitation Statement may be
amended with the consent of the Agents."
"'Specified Events' means, collectively, (a) the amendment of
the MVI Sale Agreement pursuant to the terms of Amendment No. 2 to the
MVI Sale Agreement dated as of September 16, 2004, pursuant to which
the Parent will receive an accelerated
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purchase price adjustment under the MVI Sale Agreement, (b) the
Disposition of the Parent's rights to its Calcitriol product pursuant
to the terms of the Termination Agreement by and between the Parent and
SICOR Pharmaceuticals, Inc., on terms substantially the same as or
better to Parent than the terms set forth in the draft Termination
Agreement provided by the Parent to the Collateral Agent on or prior to
October 21, 2004, and (c) the Disposition of the Parent's Investment in
Aesgen, Inc. pursuant to the terms of the Agreement and Plan of Merger
and Reorganization, dated as of August 30, 2004, among MGI Pharma,
Inc., MGIP Acquisition Corp., Aesgen Inc. and Xxxxxxx X. Xxxxxxx, as
equityholder's representative."
"'Supplemental Term Loan' means the loans made by the
Supplemental Term Loan Lenders to the Borrowers pursuant to Article II
hereof."
"'Supplemental Term Loan Commitment' means, with respect to
each Lender, the commitment of such Lender to make the Supplemental
Term Loan to the Borrowers in the amount set forth in Schedule 1.01(A)
hereto, as the same may be terminated or reduced from time to time in
accordance with the terms of this Agreement."
"'Supplemental Term Loan Final Draw Date' means that certain
date, if any, after the Supplemental Term Loan Second Draw Date and on
or prior to January 15, 2005, on which the Supplemental Term Loan
Lenders make a portion of the Supplemental Term Loan available to the
Borrowers in accordance with Section 2.01(a)(iii)(C) hereof."
"'Supplemental Term Loan Lender' means a Lender with a
Supplemental Term Loan Commitment."
"'Supplemental Term Loan Second Draw Date' means that certain
date, if any, after the Fourth Amendment Effective Date and prior to
the Supplemental Term Loan Final Draw Date, on which the Supplemental
Term Loan Lenders make a portion of the Supplemental Term Loan
available to the Borrowers in accordance with Section 2.01(a)(iii)(B)
hereof."
"'Total Supplemental Term Loan Commitment' means the sum of
the amounts of the Lenders' Supplemental Term Loan Commitments."
(c) Commitments. Section 2.01 of the Financing Agreement is
hereby amended as follows:
(i) Section 2.01(a) of the Financing Agreement is
hereby amended by deleting the "and" at the end of clause (i) thereof,
replacing the "." at the end of clause (ii)(B) thereof with "; and" and
adding the following new clause (iii):
"(iii) each Supplemental Term Loan Lender severally
agrees to make the Supplemental Term Loan to the Borrowers, in an
aggregate principal amount not to exceed the amount of such Lender's
Supplemental Term Loan Commitment, as follows:
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(A) On the Fourth Amendment Effective Date,
an amount equal to such Supplemental Term Loan Lender's Pro Rata Share
of an amount equal to not less than 50% of the Total Supplemental Term
Loan Commitment;
(B) On the Supplemental Term Loan Second
Draw Date, an amount equal to such Supplemental Term Loan Lender's Pro
Rata Share of an amount not to exceed the remaining undrawn amount, if
any, of the Supplemental Term Loan Commitment as of the date thereof;
and
(C) On the Supplemental Term Loan Final Draw
Date, an amount equal to such Supplemental Term Loan Lender's Pro Rata
Share of an amount not to exceed the remaining undrawn amount, if any,
of the Supplemental Term Loan Commitment as of the date thereof."
(ii) Section 2.01(b) of the Financing Agreement is
hereby amended by redesignating existing clause (iii) thereof as new
clause (iv) and adding the following new clause (iii):
"(iii) The aggregate principal amount of the
Supplemental Term Loan made on the Fourth Amendment Effective Date, the
Supplemental Term Loan Second Draw Date and the Supplemental Term Loan
Final Draw Date shall not exceed the Total Supplemental Term Loan
Commitment. Any principal amount of the Supplemental Term Loan which is
repaid or prepaid may not be reborrowed."
(d) Making the Loans. Section 2.02 of the Financing Agreement
is hereby amended as follows:
(i) The second sentence of Section 2.02(a) of the
Financing Agreement is hereby amended in its entirety to read as
follows:
"Such Notice of Borrowing shall be irrevocable and shall specify (i)
the principal amount of the proposed Loan (which, in the case of a
LIBOR Rate Loan, must be in a minimum amount of $1,000,000 and in
integral multiples of $100,000 in excess thereof), (ii) whether such
Loan is requested to be a Reference Rate Loan or a LIBOR Rate Loan and,
in the case of a LIBOR Rate Loan, the initial Interest Period with
respect thereto, (iii) in the case of Loans requested on the Effective
Date, the Fourth Amendment Effective Date, the Second Draw Date, the
Supplemental Term Loan Second Draw Date or the Supplemental Term Loan
Final Draw Date, whether such Loan is requested to be a Revolving Loan,
the Term Loan or the Supplemental Term Loan, (iv) the use of the
proceeds of such proposed Loan, and (v) the proposed borrowing date,
which must be a Business Day, and, (x) with respect to the Term Loan,
must be the Effective Date or the Second Draw Date and (y) with respect
to the Supplemental Term Loan, must be the Fourth Amendment Effective
Date, the Supplemental Term Loan Second Draw Date or the Supplemental
Term Loan Final Draw Date."
(ii) Section 2.02(c)(i) of the Financing Agreement is
hereby amended in its entirety to read as follows:
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"(c)(i) Except as otherwise provided in this
subsection 2.02(c) and Section 2.01(a)(ii)(B), all Loans under this
Agreement shall be made by the Lenders simultaneously and
proportionately to their Pro Rata Shares of the Total Revolving Credit
Commitment, the Total Term Loan Commitment and the Total Supplemental
Term Loan Commitment, as the case may be, it being understood that no
Lender shall be responsible for any default by any other Lender in that
other Lender's obligations to make a Loan requested hereunder, nor
shall the Commitment of any Lender be increased or decreased as a
result of the default by any other Lender in that other Lender's
obligation to make a Loan requested hereunder, and each Lender shall be
obligated to make the Loans required to be made by it by the terms of
this Agreement regardless of the failure by any other Lender."
(e) Repayment of Loans. Section 2.03(b) of the Financing
Agreement is hereby amended in its entirety to read as follows:
"(b) The outstanding principal of the Term Loan and the Supplemental
Term Loan shall be repaid in full on the earlier of (i) if Excess Availability
is less than $10,000,000 on such date, the date of the termination of the Total
Revolving Credit Commitment and (ii) the Final Maturity Date."
(f) Interest. Section 2.04 of the Financing Agreement is
hereby amended as follows:
(i) Section 2.04(a) of the Financing Agreement is
hereby amended in its entirety to read as follows:
"(a) Revolving Loans. 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 Reference Rate
plus 7.25%. 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 LIBOR Rate plus 8.25%."
(ii) Section 2.04(b) of the Financing Agreement is
hereby amended in its entirety to read as follows:
"(b) Term Loan; Supplemental 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 Reference Rate plus
7.25%. 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 LIBOR Rate plus 8.25%.
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(ii) Each portion of the Supplemental 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
Reference Rate plus 7.25%. Each portion of the Supplemental 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 LIBOR
Rate plus 8.25%."
(g) Reduction of Commitments. Section 2.05(a) of the Financing
Agreement is hereby amended by inserting the following new clause (iii) at the
end thereof:
"(iii) Supplemental Term Loan. The Total Supplemental Term
Loan Commitment shall terminate at 5:00 p.m. (New York City time) (A)
on the Fourth Amendment Effective Date, with respect to the greater of
(1) the amount of the Supplemental Term Loan drawn by the Borrowers on
such date and (2) 50% of the Total Supplemental Term Loan Commitment,
(B) on the Supplemental Term Loan Second Draw Date, with respect to the
amount of the Supplemental Term Loan drawn by the Borrowers on such
date, and (C) on the earlier to occur of (A) the Supplemental Term Loan
Final Draw Date and (B) January 15, 2005, with respect to any remaining
undrawn amount of the Supplemental Term Loan Commitment as of such
date."
(h) Optional Prepayment. Section 2.05(b)(ii) of the Financing
Agreement is hereby amended in its entirety to read as follows:
"(ii) Term Loan and Supplemental Term Loan. The Borrowers may,
at any time and from time to time, upon at least 3 Business Days' prior
written notice to the Administrative Agent, prepay the principal of the
Term Loan and/or the Supplemental Term Loan, in whole or in part. Each
prepayment of the Term Loan and/or the Supplemental Term Loan made
pursuant to this clause (b)(ii) shall be accompanied by the payment of
(A) accrued interest to the date of such payment on the amount prepaid
and (B) the Applicable Prepayment Premium, if any, payable in
connection with such prepayment."
(i) Mandatory Prepayment. Section 2.05(c) of the Financing
Agreement is hereby amended as follows:
(i) Section 2.05(c)(i) of the Financing Agreement is
hereby amended in its entirety to read as follows:
"(i) The Borrowers will immediately prepay the outstanding
principal amount of the Term Loan and the Supplemental Term Loan in the
event that (A) the Total Revolving Credit Commitment is terminated for
any reason and (B) Excess Availability on the date of the termination
of the Total Revolving Credit Commitment is less than $10,000,000."
(ii) Section 2.05(c)(iii) of the Financing Agreement
is hereby amended in its entirety to read as follows:
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"(iii) Within 3 days of any Disposition by any Loan Party
pursuant to Section 7.02(c)(ii), the Borrowers shall 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) at the election of each Lender in its sole
discretion and in accordance with the procedures set forth in Section
2.05(c)(vii), (1) 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 (2) 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 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) the Loan Parties shall not permit Excess
Proceeds (as defined in the Senior Subordinated Note Indenture) to
exceed $5,000,000 at any time. 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)."
(j) Application of Payments. Section 2.05(d) of the Financing
Agreement is hereby amended as follows:
(i) Section 2.05(d)(i) of the Financing Agreement is
hereby amended by deleting the phrase "first, ratably to the Revolving
Loans, until paid in full,
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second, to the Term Loan, until paid in full, and third, ratably to all
other Obligations, until paid in full" therein and substituting in lieu
thereof "first, ratably to the Revolving Loans, until paid in full,
second, ratably to the Term Loan and the Supplemental Term Loan, until
paid in full, and third, ratably to all other Obligations, until paid
in full".
(ii) Sections 2.05(d)(ii), 2.05(d)(iii), 2.05(d)(iv)
and 2.05(d)(v) of the Financing Agreement are hereby amended by
deleting the phrase "first, to the Term Loan, until paid in full,
second, ratably to the Revolving Loans, until paid in full, and third,
ratably to all other Obligations, until paid in full" therein and
substituting in lieu thereof "first, ratably to the Term Loan and the
Supplemental Term Loan, until paid in full, second, ratably to the
Revolving Loans, until paid in full, and third, ratably to all other
Obligations, until paid in full".
(k) Fees. Section 2.06(a) of the Financing Agreement is hereby
amended in its entirety to read as follows:
"(a) Unused Line Fee; Unused Commitment Fee.
(i) From and after the Effective Date and until the
Final Maturity Date, the Borrowers shall pay to the Administrative
Agent for the account of the Revolving Loan Lenders, in accordance with
their Pro Rata Shares, an unused line fee (the "Unused Line Fee"),
which shall accrue at the rate per annum of 1.00% on the actual daily
excess, if any, of the Total Revolving Credit Commitment over the sum
of the principal amount of all Revolving Loans and Letter of Credit
Obligations outstanding from time to time and shall be payable
quarterly in arrears on the last Business Day of each calendar quarter
commencing on June 30, 2004.
(ii) From and after the Fourth Amendment Effective
Date and until the earlier to occur of the Supplemental Term Loan Final
Draw Date and January 15, 2005, the Borrowers shall pay to the
Administrative Agent for the account of the Supplemental Term Loan
Lenders, in accordance with their Pro Rata Shares, an unused commitment
fee, which shall accrue at the rate per annum of 0.75% on the actual
daily excess, if any, of the Total Supplemental Term Loan Commitment
over the principal amount of the Supplemental Term Loan outstanding
from time to time and shall be payable monthly in arrears on the last
Business Day of each month commencing on October 31, 2004."
(l) Apportionment of Payments. Section 4.04(c) of the
Financing Agreement is hereby amended in its entirety to read as follows:
"(c) In each instance, so long as no Event of Default has
occurred and is continuing, Section 4.04(b) shall not be deemed to
apply to any payment by the Borrowers specified by the Administrative
Borrower to the Administrative Agent to be for the payment of Term Loan
Obligations then due and payable under any provision of this Agreement
or the prepayment of all or part of the principal of the Term Loan or
the Supplemental Term Loan in accordance with the terms and conditions
of Section 2.05."
-11-
(m) Use of Proceeds. Section 6.01(t) of the Financing
Agreement is hereby amended in its entirety to read as follows:
"(t) Use of Proceeds. The proceeds of the Loans shall be used
to, together with the Net Cash Proceeds from the MVI Sale, (i)
refinance existing Indebtedness of the Loan Parties under the Existing
Credit Facility, (ii) fund the interest payments (and any default
interest payable thereon) due and payable by the Parent on April 1,
2004 and October 1, 2004, in respect of its Senior Subordinated Notes,
(iii) provide for ongoing working capital and general corporate
purposes of the Loan Parties, and (iv) to pay for fees, costs and
expenses incurred in connection with the transactions contemplated
hereby."
(n) Affirmative Covenants. Section 7.01 of the Financing
Agreement is hereby amended as follows:
(i) Section 7.01(a)(iv)(A) of the Financing Agreement
is hereby amended by deleting clause (2) therein and substituting in
lieu thereof the following:
"(2) attaching a schedule showing the calculations of the financial
covenants specified in Section 7.03."
(ii) Section 7.01 of the Financing Agreement is
hereby amended by adding the following new subsection (s):
"(s) Retention of Rothschild. In the event that Rothschild
ceases for any reason to be actively engaged by the Borrowers to, among
other things, assist the Borrowers with respect to the evaluation of
potential asset divestitures, including the exploration of the
potential sale of some or all of the assets comprising the Borrowers'
Pharmaceuticals Division, as well as other assets that are no longer
strategic to the Borrowers' long-term business plan (the "Sale
Process"), Borrowers shall (i) within 2 days thereof, provide the
Collateral Agent with written notice of such cessation of engagement
and (ii) within 20 days thereof, retain, and continue at all times
thereafter the retention of, a financial advisor in replacement thereof
acceptable to the Collateral Agent. The scope of such retention and the
duties of such replacement financial advisor shall be acceptable to the
Collateral Agent."
(o) 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.
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(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:
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
Notwithstanding the foregoing, (i) if Consolidated EBITDA of the Parent
and its Subsidiaries for the fiscal quarter of the Parent and its
Subsidiaries ended September 30, 2004 is greater than $2,000,000, then
the Leverage Ratio of the Parent and its Subsidiaries shall not be
tested under this Section 7.03(b) as of the end of such period, (ii) if
Consolidated EBITDA of the Parent and its Subsidiaries for the 2 fiscal
quarters of the Parent and its Subsidiaries ended December 31, 2004 is
greater than $10,500,000, then the Leverage Ratio of the Parent and its
Subsidiaries shall not be tested under this Section 7.03(b) as of the
end of such period, and (iii) if Consolidated EBITDA of the Parent and
its Subsidiaries for the fiscal quarter of the Parent and its
Subsidiaries ended March 31, 2005 is greater than $8,100,000, then the
Leverage Ratio of the Parent and its Subsidiaries shall not be tested
under this Section 7.03(b) as of the end of such period.
(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
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Period Fixed Charge Coverage Ratio
------ ---------------------------
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
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
Notwithstanding the foregoing, (i) if Consolidated EBITDA of the Parent
and its Subsidiaries for the fiscal quarter of the Parent and its
Subsidiaries ended September 30, 2004 is greater than $2,000,000, then
the Fixed Charge Coverage Ratio of the Parent and its Subsidiaries
shall not be tested under this Section 7.03(c) as of the end of such
period, (ii) if Consolidated EBITDA of the Parent and its Subsidiaries
for the 2 fiscal quarters of the Parent and its Subsidiaries ended
December 31, 2004 is greater than $10,500,000, then the Fixed Charge
Coverage Ratio of the Parent and its Subsidiaries shall not be tested
under this Section 7.03(c) as of the end of such period, and (iii) if
Consolidated EBITDA of the Parent and its Subsidiaries for the fiscal
quarter of the Parent and its Subsidiaries ended March 31, 2005 is
greater than $8,100,000, then the Fixed Charge Coverage Ratio of the
Parent and its Subsidiaries shall not be tested under this Section
7.03(c) as of the end of such period.
(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 (and except as set forth in clause (B) of this Section
7.03(d)), $5,000,000, (B) during the period from and including March
31, 2005 through and including May 15, 2005, $15,000,000 and (C) at all
other times, $10,000,000 and (ii) 50% times the amount of Specified
Costs and Expenses incurred in excess of $2,500,000."
-14-
(p) Events of Default. Section 9.01 of the Financing Agreement
is hereby amended as follows:
(i) Section 9.01(c)(i) is hereby amended in its
entirety to read as follows:
"(i) fail to perform or comply with any covenant or agreement
contained in Section 5.03, Sections 7.01(a)(viii), 7.01(c),
7.01(d)(i)(A), 7.01(f), 7.01(h) (other than with respect to the
delivery of insurance policies thereunder), 7.01(n), 7.01(p), 7.01(r)
or 7.01(s), Section 7.02, Section 7.03 (other than Section 7.03(a) and,
during the period from October 1, 2004 through and including November
30, 2004, Section 7.03(d)) or Article VIII, or any Loan Party shall
fail to perform or comply with any covenant or agreement contained in
the Fee Letter, any Security Agreement to which it is a party, any
Pledge Agreement to which it is a party, or any Mortgage to which it is
a party;"
(ii) Section 9.01 of the Financing Agreement is
hereby amended by deleting the "or" at the end of clause (v) therein,
inserting "or" after the semicolon at the end of clause (w) therein and
inserting the following new clause (x):
"(x) the Borrowers shall fail to pursue in good faith the Sale
Process;"
(q) Assignments and Participations. Section 12.07(b)(iii) of
the Financing Agreement is hereby amended by deleting subclause (x) therein and
substituting in lieu thereof the following:
"(x) in the case of an assignment by a Lender to one or more other
lenders or other entities of all or a portion of its Term Loan
Commitment and the Term Loan made by it or of its Supplemental Term
Loan Commitment and the Supplemental Term Loan made by it, the
Collateral Agent and"
(r) Schedules. Schedule 1.01(A) to the Financing Agreement is
hereby amended in its entirety to read as set forth on Annex A attached hereto.
(s) Exhibit D. Clause (iii) of Exhibit D to the Financing
Agreement is hereby amended in its entirety to read as follows:
"(iii) The Proposed Loan is [a Revolving Loan] [a portion of
the Supplemental Term Loan]".
(t) Exhibit E. The second paragraph of Exhibit E to the
Financing Agreement is hereby amended by deleting the phrase "[a portion of the
Term Loan]" therein and substituting in lieu thereof "[a portion of the
[Supplemental] Term Loan]".
3. Waiver and Consent.
(a) Pursuant to the request of the Borrowers and in accordance
with Section 12.02 of the Financing Agreement, the Agents and the Lenders hereby
(i) consent to, and
-15-
waive any Event of Default that has or would otherwise arise
under Section 9.01(a) or Section 9.01(c) of the Financing Agreement by reason
of, the occurrence of the Calcitriol Disposition.
(b) The waivers and consents in this Section 3 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.
4. Additional Lenders. Each of the Borrowers, the Agents and the
existing Lenders hereby consents to [SPCP Group LLC and SPCP Group III, L.L.C.
(each an "Additional Lender")] becoming a Lender under the Financing Agreement.
Commencing on the Fourth Amendment Effective Date, each Additional Lender will
be a party to the Financing Agreement, agrees to be bound by the terms and
conditions of the Financing Agreement and the Loan Documents and will have all
of the rights and obligations of a Lender under the Financing Agreement and the
Loan Documents.
5. Conditions Precedent. 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
"Fourth 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
Fourth 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 Fourth Amendment Effective Date
either immediately before or after giving effect to this Amendment in accordance
with its terms.
(b) Delivery of Documents. The Collateral Agent shall have
received on or before the Fourth Amendment Effective Date, the following, each
in form and substance reasonably satisfactory to the Collateral Agent and,
unless otherwise indicated, dated as of the Fourth Amendment Effective Date:
(i) counterparts of this Amendment, duly executed by
the Borrowers, the Agents and the Lenders;
(ii) counterparts of the Second Amendment to Fee
Letter, dated as of the date hereof, 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 Fourth Amendment Effective Date by an Authorized
Officer thereof, authorizing the execution and delivery of this
Amendment and the other documents to be executed and
-16-
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 the
Parent, certifying that the Borrowers on a consolidated basis are
Solvent;
(vii) a certificate of an Authorized Officer of each
Loan Party, certifying as to the matters set forth in clause (a) of
this Section 5;
(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 Lenders may reasonably request
including, without limitation, an opinion of Xxxxxxxx, Xxxxxxxx &
Xxxxxx, P.A. that the Loans made pursuant to the Financing Agreement
(including the Supplemental Term Loan) 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
(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) Senior Subordinated Note Indenture. The Loan Parties shall
have obtained irrevocable consents of the requisite Senior Subordinated Note
Holders with respect to (i) the waiver of all defaults under the Senior
Subordinated Note Indenture (other than the default related to the payment of
the interest payment due October 1, 2004 on the Senior Subordinated Notes, which
interest payment will be paid substantially concurrently with the initial
borrowing of the Supplemental Term Loan) and (ii) the increase in the Total
Commitment under the Financing Agreement to $180,000,000. The Collateral Agent
shall be satisfied in its sole discretion that the Loans made pursuant to the
Financing Agreement (including the Supplemental Term Loan) constitute "Permitted
Debt", "Senior Debt" and "Designated Senior Debt" under the Senior Subordinated
Note Indenture and that any supplemental indenture delivered in connection with
the foregoing shall have become effective.
(e) 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.
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(f) Effective Date. The Fourth Amendment Effective Date shall
have occurred on or before Friday, October 29, 2004.
6. Condition Subsequent. The obligation of the Agents or any Lender to
maintain the Loans and Letters of Credit after the Fourth Amendment Effective
Date is subject to the conditions subsequent that (i) the Borrowers issue the
press release attached hereto as Annex B with respect to this Amendment not
later than the opening of business on Monday, October 25, 2004, as such date may
be extended with the consent of the Agents, and (ii) the Borrowers file Form 8-K
with the SEC, together with a copy of this Amendment, not later than the opening
of business on Monday, October 25, 2004, as such date may be extended with the
consent of the Agents.
7. 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
Fourth Amendment Effective Date as though made on and as of such date, except to
the extent that any such representation or warranty
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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 Fourth
Amendment Effective Date either immediately before or after giving effect to
this Amendment in accordance with its terms.
8. 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 Fourth 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. 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.
9. 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
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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) (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 Fourth 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.
10. 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.
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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/ Ludo Xxxxxxxx
----------------------------------
Name: Ludo Xxxxxxxx
Title: President & CEO
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
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
-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
LENDERS:
BANK OF AMERICA, N.A.,
as L/C Issuer
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Principal
BANK OF AMERICA, N.A.,
as a Lender
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Principal
SEA PINES FUNDING LLC,
as a Lender
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
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TRS THEBE LLC,
as a Lender
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
SIL LOAN FUNDING LLC,
as a Lender
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Attorney-in-Fact
SILVER POINT ONSHORE CDO, LLC,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
XXXXXXX SACHS CREDIT PARTNERS L.P.,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director
-4-
ADDITIONAL LENDERS:
SPCP GROUP LLC,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
SPCP GROUP III, L.L.C.,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
-5-
