Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - CUMBERLAND PHARMACEUTICALS INC | c06485e8vk.htm |
| EX-99.1 - EXHIBIT 99.1 - CUMBERLAND PHARMACEUTICALS INC | c06485exv99w1.htm |
| EX-99.3 - EXHIBIT 99.3 - CUMBERLAND PHARMACEUTICALS INC | c06485exv99w3.htm |
| EX-99.2 - EXHIBIT 99.2 - CUMBERLAND PHARMACEUTICALS INC | c06485exv99w2.htm |
Exhibit 10.16.1
THIRD AMENDMENT TO
FOURTH AMENDED AND RESTATED LOAN AGREEMENT
FOURTH AMENDED AND RESTATED LOAN AGREEMENT
THIS THIRD AMENDMENT TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT (this “Amendment”),
dated as of September 29, 2010, is made and entered into on the terms and conditions hereinafter
set forth, by and between CUMBERLAND PHARMACEUTICALS, INC., a Tennessee corporation (the
“Borrower”), and BANK OF AMERICA, N.A., a national banking association (the
“Bank”).
RECITALS:
1. The Borrower and the Bank are parties to a Fourth Amended and Restated Loan Agreement dated
as of July 22, 2009, as amended by a First Amendment to Fourth Amended and Restated Loan Agreement
dated as of February 11, 2010 and by a Second Amendment to Fourth Amended and Restated Loan
Agreement dated as of May 24, 2010 (as the same heretofore has been or hereafter may be further
amended, restated, supplemented, extended, renewed, replaced or otherwise modified from time to
time, the “Loan Agreement”), pursuant to which the Bank has agreed to extend credit to the
Borrower subject to and upon the terms and conditions set forth in the Loan Agreement.
2. The parties hereto desire to amend the Loan Agreement in certain respects as more
particularly hereinafter set forth.
3. Capitalized terms used but not otherwise defined in this Amendment shall have the same
meanings as in the Loan Agreement.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth,
and for other good and valuable consideration, the receipt and sufficiency of all of which are
hereby acknowledged, the parties hereto agree as follows:
1. Amendment of Section 1.1. Subsection (a) of Section 1.1 of the Loan Agreement is
hereby amended by deleting the words and figures “Four Million Dollars ($4,000,000)” and
substituting in lieu thereof the words and figures “Six Million Dollars ($6,000,000)”.
2. Amendment of Section 1.3. Subsection (c) of Section 1.3 of the Loan Agreement is
hereby amended to read as follows:
| (c) | The “Applicable Margin” means and refers to the following percentages per annum, based upon the Borrower’s Leverage Ratio as set forth in the most recent compliance certificate received by the Bank pursuant to Section 8.2(c): |
| Pricing Level | Leverage Ratio | Applicable Margin | ||||||
1 |
< 1.00 | 3.50 | % | |||||
2 |
³ 1.00 | 4.50 | % | |||||
Any increase or decrease in the Applicable Margin resulting from a change in the
Borrower’s Leverage Ratio shall become effective as of the first banking day
following the date a compliance certificate is delivered pursuant to
Section 8.2(c); provided, however, that if a compliance certificate is not
delivered when due in accordance with Section 8.2(c), then Pricing Level 2
shall apply as of the first banking day after the date on which
such compliance certificate was required to have been delivered until the first
banking day after the date on which such certificate is delivered.
3. Amendment of Section 2.4. Subsection (b) of Section 2.4 of the Loan Agreement is
hereby amended to read as follows:
| (b) | The Borrower will repay principal in equal consecutive installments in the amount of Six Hundred Sixty-Six Thousand Six Hundred Sixty-Seven and No/100ths Dollars ($666,667.00) each beginning on December 31, 2010 and continuing on the last day of each March, June, September and December thereafter until December 31, 2012 (the “Repayment Period”). In any event, on the last day of the Repayment Period, the Borrower will repay the entire remaining principal balance plus any interest or other charges outstanding under this facility. |
4. Amendments of Section 3.1. Section 3.1 of the Loan Agreement is hereby amended as
follows:
(a) Subsection (a) of Section 3.1 of the Loan Agreement is hereby amended to read as
follows:
| (a) | Fee Letter. The Borrower agrees to pay to the Bank fees and other compensation as provided in the fee letter of even date herewith, by and between the Bank and the Borrower, as the same may be supplemented, amended, modified and/or amended and restated from time to time pursuant to agreement of the Borrower and the Bank (as so supplemented, amended, modified and/or amended and restated, the “Fee Letter”). |
(b) The definition of “Applicable Facility No. 1 Commitment Fee Rate” set forth in
clause (i) of subsection (b) of Section 3.1 of the Loan Agreement is hereby amended to read
as follows:
“Applicable Facility No. 1 Commitment Fee Rate” means one-half of one
percent (0.50%) per year.
5. Amendment of Section 8.3. Section 8.3 of the Loan Agreement is hereby amended by
replacing the table set forth therein with the following:
| Quarterly Period(s) Ending | Leverage Ratio | |
09-30-10 – 12-31-10 |
2.00 to 1.00 | |
03-31-11 – 09-30-11 |
1.75 to 1.00 | |
12-31-11 and thereafter |
1.25 to 1.00 |
6. Amendment of Section 8.4. Section 8.4 of the Loan Agreement is hereby amended by
deleting the first sentence thereof and substituting in lieu thereof the following:
To maintain on a consolidated basis a Fixed Charge Coverage Ratio of at least 1.25 to 1.00,
calculated as of the end of each quarter-annual reporting period for which the Bank requires
financial statements, using the results of the twelve-month period ending with the end of
that reporting period; provided, however, that (i) for the September 30, 2010 calculation
date, the calculation shall be made using the results of only the three-month period then
ended, (ii) for the December 31, 2010 calculation date, the calculation shall be made using
only the results of the six-month period then ended, and (iii) for the March 31, 2011
calculation date, the calculation shall be made using only the results of the nine-month
period then ended.
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7. Addition to Section 8.9. Section 8.9 of the Loan Agreement is hereby amended by
adding the following sentence at the end:
The Borrower covenants and agrees that the deposits maintained by the Borrower and its
Subsidiaries with the Bank and its affiliates shall not at any time be in an aggregate
amount less than the sum of (a) the maximum amount of the Facility No. 1 Commitment at such
time, (including both the principal amount then outstanding plus the unfunded portion),
plus (b) the aggregate principal amount then outstanding in respect of the Facility
No. 2 Commitment.
8. Amendment of Other Loan Documents. Each of the Loan Documents is hereby amended in
all respects necessary to reflect that the “Facility No. 1 Commitment” (by whatever terminology is
used to make reference thereto) shall mean and refer to “a line of credit in a principal amount not
to exceed Six Million Dollars ($6,000,000) outstanding at any one time.”
9. Conditions to Effectiveness. This Amendment shall be effective only upon the
satisfaction of the following conditions:
(a) the Borrower, the Bank and the other parties whose names appear on the signature
page(s) hereof shall have executed and delivered a counterpart of this Amendment;
(b) the Borrower shall have executed and delivered to the Bank an amended and restated
promissory note evidencing the indebtedness of the Borrower to the Bank in connection with
the Facility No. 1 Commitment;
(c) the Borrower shall have paid to the Bank, in immediately available funds:
(1) the principal amount outstanding in respect of the Facility No. 2
Commitment that is in excess of $6,000,000.00, together with all accrued and unpaid
interest, fees, premiums and other amounts due and payable in respect of the
Facility No. 2 Commitment at the time of or in connection with such principal
payment (including amounts payable pursuant to subsection 2.5(a) of the Loan
Agreement); and
(2) all amounts that are then due and payable pursuant to the Fee Letter (if
any);
(d) each of the representations and warranties of the Borrower contained in
Section 10 shall be true and correct as of the date as of which all of the other
conditions contained in this Section 9 shall have been satisfied;
(e) the Borrower shall have paid all cost and expenses, including attorney’s fees,
reasonably incurred by the Bank in connection with the preparation, execution, delivery and
any recording or filing of this Amendment or any instrument, document or agreement
contemplated hereby; and
(f) the Bank shall have received such other documents, instruments, certificates,
opinions and approvals as it reasonably may have requested.
10. Representations and Warranties of the Borrower. As an inducement to the Bank to
enter into this Amendment, the Borrower hereby represents and warrants that on and as of the date
hereof, and taking into account the provisions hereof, the representations and warranties contained
in the Loan Agreement and the other Loan Documents are true and correct in all material respects,
except for representations and warranties that expressly relate to an earlier date, which remain
true and correct as of said earlier date.
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11. Effect of Amendment; Continuing Effectiveness of Loan Agreement and Loan
Documents.
(a) Neither this Amendment nor any other indulgences that may have been granted to the
Borrower by the Bank shall constitute a course of dealing or otherwise obligate the Bank to
modify, expand or extend the agreements contained herein, to agree to any other amendments
to the Loan Agreement or to grant any consent to, waiver of or indulgence with respect to
any other noncompliance with any provision of the Loan Documents.
(b) Upon and after the effectiveness of this Amendment, each reference in the Loan
Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to
the Loan Agreement, and each reference in the other Loan Documents to “the Loan Agreement”,
“thereunder”, “thereof” or words of like import referring to the Loan Agreement, shall mean
and be a reference to the Loan Agreement as modified hereby. This Amendment shall
constitute a Loan Document for all purposes of the Loan Agreement and the other Loan
Documents.
(c) Except to the extent amended or modified hereby, the Loan Agreement, the other Loan
Documents and all terms, conditions and provisions thereof shall continue in full force and
effect in all respects and shall be construed in accordance with the modification of the
Loan Agreement effected hereby.
12. Release and Waiver. The Borrower hereby acknowledges and stipulates that it has
no claims or causes of action of any kind whatsoever against the Bank, its affiliates, officers,
directors, employees or agents. The Borrower represents that it is entering this Amendment freely,
and with the advice of counsel as to its legal alternatives. The Borrower hereby releases the
Bank, its affiliates, officers, directors, employees and agents, from any and all claims, causes of
action, demands and liabilities of any kind whatsoever whether direct or indirect, fixed or
contingent, liquidated or unliquidated, disputed or undisputed, known or unknown, that the Borrower
has or may acquire in the future relating in any way to any event, circumstance, action or failure
to act to the date of this Amendment, excluding, however, claims or causes of actions resulting
solely from the Bank’s own gross negligence or willful misconduct. The release by the Borrower
herein, together with the other terms and provisions of this Amendment, are executed by the
Borrower advisedly and without coercion or duress from the Bank, the Borrower having determined
that the execution of this Amendment, and all of its terms, conditions and provisions are in the
Borrower’s economic best interest.
13. Further Actions. Each of the parties to this Amendment agrees that at any time
and from time to time upon written request of the other party, it will execute and deliver such
further documents and do such further acts and things as such other party reasonably may request in
order to effect the intents and purposes of this Amendment.
14. Counterparts. This Amendment may be executed in multiple counterparts or copies,
each of which shall be deemed an original hereof for all purposes. One or more counterparts or
copies of this Amendment may be executed by one or more of the parties hereto, and some different
counterparts or copies executed by one or more of the other parties. Each counterpart or copy
hereof executed by any party hereto shall be binding upon the party executing same even though
other parties may execute one or more different counterparts or copies, and all counterparts or
copies hereof so executed shall constitute but one and the same agreement. Each party hereto, by
execution of one or more counterparts or copies hereof, expressly authorizes and directs any other
party hereto to detach the signature pages and any corresponding acknowledgment, attestation,
witness or similar pages relating thereto from any such counterpart or copy hereof executed by the
authorizing party and affix same to one or more other identical counterparts or copies hereof so
that upon execution of multiple counterparts or copies hereof by all parties hereto, there shall be
one or more counterparts or copies hereof to which is(are) attached signature pages containing
signatures of all parties hereto and any corresponding acknowledgment, attestation, witness or
similar pages relating thereto.
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15. Miscellaneous.
(a) This Amendment shall be governed by, construed and enforced in accordance with the
laws of the State of Tennessee, without reference to the conflicts or choice of law
principles thereof.
(b) The headings in this Amendment and the usage herein of defined terms are for
convenience of reference only, and shall not be construed as amplifying, limiting or
otherwise affecting the substantive provisions hereof.
(c) All references herein to the preamble, the recitals or sections, paragraphs,
subparagraphs, annexes or exhibits are to the preamble, recitals, sections, paragraphs,
subparagraphs, annexes and exhibits of or to this Amendment unless otherwise specified. The
words “hereof”, “herein” and “hereunder” and words of similar import, when used in this
Amendment, refer to this Amendment as a whole and not to any particular provision of this
Amendment.
(d) Any reference herein to any instrument, document or agreement, by whatever
terminology used, shall be deemed to include any and all amendments, modifications,
supplements, extensions, renewals, substitutions and/or replacements thereof as the context
may require.
(e) When used herein, (1) the singular shall include the plural, and vice versa, and
the use of the masculine, feminine or neuter gender shall include all other genders, as
appropriate, (2) “include”, “includes” and “including” shall be deemed to be followed by
“without limitation” regardless of whether such words or words of like import in fact follow
same, and (3) unless the context clearly indicates otherwise, the disjunctive “or” shall
include the conjunctive “and”.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
delivered as of the date first written above.
[Remainder of Page Intentionally Left Blank;
Signature Pages Follow]
Signature Pages Follow]
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[Signature Page to Third Amendment to Fourth Amended and Restated Loan Agreement
(Cumberland Pharmaceuticals, Inc.) dated as of September 29, 2010]
(Cumberland Pharmaceuticals, Inc.) dated as of September 29, 2010]
| BORROWER: | ||||||||
| CUMBERLAND PHARMACEUTICALS, INC. | ||||||||
| By: | /s/ David L. Lowrance | |||||||
| Name: | David L. Lowrance | |||||||
| Title: | CFO | |||||||
CONSENTED TO AND APPROVED:
CUMBERLAND PHARMA SALES CORP.
By: |
/s/ A.J. Kazimi | |||||
| Name: | A.J. Kazimi | |||||
| Title: | CEO | |||||
ACKNOWLEDGED:
CUMBERLAND EMERGING TECHNOLOGIES, INC.
By: |
/s/ David L. Lowrance | |||||
| Name: | David L. Lowrance | |||||
| Title: | CFO | |||||
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[Signature Page to Third Amendment to Fourth Amended and Restated Loan Agreement
(Cumberland Pharmaceuticals, Inc.) dated as of September 29, 2010]
(Cumberland Pharmaceuticals, Inc.) dated as of September 29, 2010]
| BANK: | ||||||||
| BANK OF AMERICA, N.A. | ||||||||
| By: | /s/ H. Hope Walker | |||||||
| Name: | H. Hope Walker | |||||||
| Title: | V.P. | |||||||
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