EXHIBIT 10.41
FIRST AMENDMENT AND WAIVER
TO LOAN AND SECURITY AGREEMENT
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FIRST AMENDMENT AND WAIVER, dated as of May 22, 1997 (this
"Amendment"), to the Loan and Security Agreement referred to below by and among
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GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation ("Lender"), PAR
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PHARMACEUTICAL, INC., a New Jersey corporation ("Borrower"), PHARMACEUTICAL
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RESOURCES, INC., a New Jersey corporation ("Parent"), NUTRICEUTICAL RESOURCES,
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INC., a New York Corporation ("NRI"), and PARCARE, LTD., a New York corporation
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("ParCare"). Parent, NRI and ParCare are hereinafter referred to as
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"Guarantors".
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W I T N E S S E T H
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WHEREAS, Lender, Borrower and Guarantors are parties to that certain
Loan and Security Agreement, dated as of December 15, 1996 (as amended,
supplemented or otherwise modified, the "Loan Agreement");
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WHEREAS, Lender, Borrower and Guarantors have agreed to amend the Loan
Agreement in the manner, and on the terms and conditions, provided for herein;
and
WHEREAS, Lender has agreed to waive certain violations of the Loan
Agreement in the manner, and on the terms and conditions, provided for herein.
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the parties to this Amendment hereby agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein shall
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have the meanings ascribed to them in the Loan Agreement.
2. Recital A of the Loan Agreement is hereby amended to change the
reference to "2.50%" under the caption "Revolving Credit Rate" to read "3.50%."
3. Section 1.5(a) of the Loan Agreement is hereby amended to change the
reference to "two and one-half percent (2.50%)" to read "three and one-half
percent (3.50%)."
4. Section 1.15 of the Loan Agreement is hereby amended to add a new
sentence at the end thereof to read as follows: "Upon any prepayment of
Revolving Credit Advances from the net proceeds of the Sano Stock Collateral
pursuant to Section 1.2(c), Lender shall have the right to establish a reserve
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against Borrowing Availability in an amount equal to fifty percent (50%) of such
net proceeds."
5. Amendment to Schedule F of the Loan Agreement. Schedule F of the Loan
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Agreement is hereby amended as of the Amendment Effective Date by deleting
Sections 1 and 2 in their entirety and inserting in lieu thereof the following
new sections:
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1. Minimum EBIT. Parent and its Subsidiaries on a consolidated
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basis shall maintain, for the following periods, EBIT of not less than: (i)
$(9,200,000) for the two Fiscal Quarter period ending on or about March 31, 1997
and (ii) $(13,000,000) for the three Fiscal Quarter period ending on or about
June 30, 1997. Parent and its Subsidiaries on a consolidated basis shall
maintain for each four Fiscal Quarter period, commencing with the four Fiscal
Quarter period ending on or about September 30, 1997, EBIT for such period of
not less than the amount for such period set forth below:
Four Fiscal Quarter Period Ending
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on or about: Minimum EBIT
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September 30, 1997 $(14,000,000)
December 31, 1997 (11,400,000)
March 31, 1998 (4,800,000)
June 30, 1998 (2,000,000)
September 30, 1998 0
December 31, 1998 0
March 31, 1999 0
June 30, 1999 0
September 30, 1999 and thereafter 0
2. Minimum Tangible Net Worth. Parent and its Subsidiaries on a
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consolidated basis shall maintain, as at the end of each Fiscal Quarter,
Tangible Net Worth of not less than the amount for such period set forth below:
Fiscal Quarter Ending
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on or about: Minimum Tangible Net Worth
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March 31, 1997 $43,000,000
June 30, 1997 38,000,000
September 30, 1997 36,000,000
December 31, 1997 34,500,000
March 31, 1998 34,500,000
June 30, 1998 35,000,000
September 30, 1998 35,000,000
December 31, 1998 35,000,000
March 31, 1999 35,000,000
June 30, 1999 35,000,000
September 30, 1999 35,000,000
December 31, 1999 and thereafter 35,000,000
6. Waiver. Lender hereby waives any Event of Default under Section 8.1(b)
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of the Loan Agreement solely arising out of the failure of Parent and its
Subsidiaries to maintain on a consolidated basis (a) EBIT of not less than
($4,500,000) for the two Fiscal Quarter period ending on or about March 31, 1997
as required by Section 4.2 of the Loan Agreement and Section 1 of Schedule F
thereto and (b) Minimum Tangible Net Worth of $50,000,000 as at the end of the
Fiscal Quarter ending on or about March 31, 1997 as required by Section 4.2 of
the Loan Agreement and Section 2 of Schedule F thereto.
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7. Representations and Warranties. To induce Lender to enter into this
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Amendment, each Credit Party hereby represents and warrants that:
(a) The execution, delivery and performance by each Credit Party of this
Amendment: (i) are within their respective corporate powers; (ii) have been
duly authorized by all necessary corporate and shareholder action; and (iii)
are not in contravention of any provision of their respective certificates or
articles of incorporation or by-laws or other organizational documents.
(b) This Amendment has been duly executed and delivered by or on behalf
of each Credit Party.
(c) This Amendment constitutes a legal, valid and binding obligation of
each Credit Party enforceable against each Credit Party in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and by general equitable principles (whether enforcement is
sought by proceedings in equity or at law).
(d) No Default has occurred and is continuing after giving effect to this
Amendment.
(e) No action, claim or proceeding is now pending or, to the knowledge of
each Credit Party, threatened against any Credit Party, at law, in equity or
otherwise, before any court, board, commission, agency or instrumentality of
any federal, state, or local government or of any agency or subdivision
thereof, or before any arbitrator or panel of arbitrators, which challenges
any Credit Party's right, power, or competence to enter into this Amendment
or, to the extent applicable, perform any of its obligations under this
Amendment, the Loan Agreement as amended hereby or any other Loan Document, or
the validity or enforceability of this Amendment, the Loan Agreement as
amended hereby or any other Loan Document or any action taken under this
Amendment, the Loan Agreement as amended hereby or any other Loan Document or
which if determined adversely could have or result in a Material Adverse
Effect.
8. No Other Amendments/Waivers. Except as expressly amended herein,
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the Loan Agreement shall be unmodified and shall continue to be in full force
and effect in accordance with its terms. In addition, except as expressly
provided in Section 3 hereof, this Amendment shall not be deemed a waiver of any
term or condition of any Loan Document and shall not be deemed to prejudice any
right or rights which Lender may now have or may have in the future under or in
connection with any Loan Document or any of the instruments or agreements
referred to therein, as the same may be amended from time to time.
9. Outstanding Indebtedness; Waiver of Claims. Each Credit Party
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hereby acknowledges and agrees that as of May 22, 1997 the aggregate outstanding
principal amount of the Revolving Credit Loan is $7,708,649.93 and that such
principal amount is payable pursuant to the Loan Agreement, as amended hereby,
without defense, offset, withholding, counterclaim or deduction of any kind.
Each Credit Party hereby waives, releases, remises and forever discharges Lender
and each other Indemnified Person from any and all Claims of any kind or
character, known or unknown, which each Credit Party ever had, now has or might
hereafter have against Lender which relates, directly or indirectly, to any acts
or omissions of Lender or any other Indemnified Person on or prior to the
Amendment Effective Date.
10. Expenses. Borrower hereby reconfirms its obligations pursuant to
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Section 10.2 of the Loan Agreement to pay and reimburse Lender for all
reasonable out-of-pocket expenses (including, without limitation, reasonable
fees of counsel) incurred in connection with the negotiation, preparation,
execution and delivery of this Amendment and all other documents and instruments
delivered in connection herewith.
11. Effectiveness. This Amendment shall become effective as of May
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22, 1997 (the "Amendment Effective Date") only upon satisfaction in full in the
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judgment of the Lender of each of the following conditions on or prior to May
28, 1997:
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(a) Documents. Lender shall have received two original copies of this
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Amendment duly executed and delivered by Lender and each Credit Party.
(b) Payment of Expenses. Borrower shall have paid to Lender all costs
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and expenses owing in connection with this Amendment and the other Loan
Documents and due to Lender (including, without limitation, reasonable legal
fees and expenses).
(c) Representations and Warranties. All representations and warranties
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of or on behalf of each Credit Party in this Amendment and all the other Loan
Documents shall be true and correct in all respects with the same effect as
though such representations and warranties had been made on and as of the date
hereof and on and as of the date that the other conditions precedent in this
Section 11 have been satisfied, except to the extent that any such
representation or warranty expressly relates to an earlier date.
(d) Secretary's Certificate. Each Credit Party shall have provided
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Lender with a certificate in form and substance satisfactory to Lender of
their respective Secretary or an Assistant Secretary certifying the
resolutions adopted by their respective Boards of Directors approving this
Amendment and the transactions contemplated herein.
In the event that each of the foregoing conditions precedent has not been
satisfied on or prior to May 28, 1997, this Amendment shall become, upon written
notice by Lender to each Credit Party, null and void and of no force or effect.
12. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
13. Counterparts. This Amendment may be executed by the parties
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hereto on any number of separate counterparts and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
Borrower:
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PAR PHARMACEUTICAL, INC.
By:___________________________
Name:
Title:
Lender:
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GENERAL ELECTRIC CAPITAL
CORPORATION
By:___________________________
Name:
Title:
Parent:
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PHARMACEUTICAL RESOURCES, INC.
By:___________________________
Name:
Title:
(SIGNATURES CONTINUED ON NEXT PAGE)
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Subsidiary Guarantors:
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NUTRICEUTICAL RESOURCES, INC.
By:___________________________
Name:
Title:
PARCARE, LTD.
By:___________________________
Name:
Title:
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THIS PAGE MUST BE KEPT AS THE LAST PAGE OF THE DOCUMENT.
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