EXHIBIT 10.72(f)
FIFTH AMENDMENT TO
CREDIT & SECURITY AGREEMENT
DATED NOVEMBER 22, 2002
NORWEST BANK ARIZONA, NATIONAL ASSOCIATION (as Successor
in interest to Norwest Business Credit, Inc. - "Lender")
MEDICIS PHARMACEUTICAL CORPORATION ("Borrower")
FIFTH AMENDMENT TO CREDIT AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AND SECURITY AGREEMENT (the "Amendment") is
made as of the 22nd day of November, 2002 by and between MEDICIS PHARMACEUTICAL,
CORPORATION, a Delaware corporation ("Borrower"), and WELLS FARGO BANK ARIZONA,
NATIONAL ASSOCIATION, a national banking association, formerly known as NORWEST
BANK ARIZONA, NATIONAL ASSOCIATION, a national banking association ("Lender"),
as succcssor-in-interest to NORWEST BUSINESS CREDIT, INC., a Minnesota
corporation.
R E C I T A L S:
WHEREAS, Borrower and Lender are parties to that certain Credit and
Security Agreement dated as of August 3, 1995, as modified by letter agreements
dated March 6, 1996 and April 11, 1996, First Amendment to Credit and Security
Agreement dated as of May 29, 1996 among Borrower, Norwest Business Credit, Inc.
("NBCI") and Lender, Second Amendment to Credit and Security Agreement dated as
of November 22, 1996 between Borrower and Lender, Third Amendment to Credit and
Security Agreement dated as of November 22, 1998 between Borrower and Lender,
and Fourth Amendment to Credit and Security Agreement dated as of November 22,
2000 between Borrower and Lender (collectively, the "Credit Agreement"),
pursuant to which Lender agreed to make available to Borrower a $25,000,000
revolving credit facility (the "Acquisitions Credit Facility") to finance
acquisitions of complementary businesses, brand product lines, brand purchase
contracts, licensing agreements, and internal product research and development
costs, which Acquisitions Credit Facility is evidenced by that certain
Replacement Acquisitions Revolving Note from Borrower payable to the order of
Lender in the principal amount of $25,000,000;
WHEREAS, Borrower has requested that Lender extend the term of the Credit
Agreement and Acquisitions Credit Facility for an additional two (2) years and
Lender is willing to do so on the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower and Lender, intending to
be legally bound, agree as follows:
1. INTERPRETATION. Except as otherwise defined herein, all capitalized
terms used herein shall have the meanings ascribed thereto in the Credit
Agreement.
2. RECITALS. The recitals set forth above are true and accurate in every
respect.
3. OUTSTANDING INDEBTEDNESS. As of November 22, 2002: the outstanding
principal balance of the Revolving Loan is $0.00 and the accrued and unpaid
interest on the Revolving Loan is $0.00; the outstanding principal balance of
the Term Credit Facility is $0.00 and the accrued and unpaid interest on the
Term Credit Facility is $0.00; and the outstanding principal balance of the
Acquisitions Credit Facility is $0.00 and the accrued and unpaid interest on the
Acquisitions Credit Facility is $0.00.
4. NO OFFSETS. Borrower acknowledges with respect to the amounts owing to
Lender that, as of the date of execution of this Amendment (which may be after
the effective date of this Agreement), Borrower has no offset, defense or
counterclaim with respect thereto, no claim or defense in the abatement or
reduction thereof, or any other claim against Lender or with respect to any
document forming part of the transaction in respect of which the Acquisitions
Credit Facility was made or forming part of any other transaction under which
Borrower is indebted to Lender. Borrower acknowledges that all interest imposed
under the Acquisitions Credit Facility through the date of execution hereof, and
all fees and other charges that have been collected from or known by Borrower to
have been imposed upon Borrower with respect to the Acquisitions Credit Facility
evidenced by the Acquisitions Revolving Note were and are agreed to, and were
properly computed and collected, and that Lender has fully performed all
obligations that it may have had or now have to Borrower, and Lender has no
obligation to make any additional loan or extension of credit to or for the
benefit of Borrower, except as provided in the Credit Agreement, as amended by
this Amendment.
5. REPRESENTATIONS AND WARRANTIES OF BORROWER. To induce Lender to enter
into this Amendment and the arrangement contemplated by this Amendment, Borrower
represents and warrants to Lender as follows:
(a) This Amendment and all other instruments executed and delivered
to Lender concurrently herewith, were executed in accordance with the
requirements of law and in accordance with any requirements of Borrower's
certificate of incorporation and bylaws and any amendments thereto.
(b) The execution and delivery of this Amendment and any other
instruments executed and delivered to Lender concurrently herewith, and the full
and complete performance of the provisions hereof will not result in any breach
of, or constitute a default under, or result in the creation of any lien, charge
or encumbrance upon any property or assets of Borrower under any indenture,
mortgage, deed of trust, bank loan or credit agreement or other instrument to
which Borrower is a party or by which Borrower is bound.
(c) The Loan Documents executed by Borrower and this Amendment are
the legal, valid and binding obligations of Borrower enforceable against
Borrower in accordance with their terms.
(d) Except as previously disclosed to Lender in writing, there are
no actions, suits or proceedings pending or, to the knowledge of the Borrower,
threatened against or affecting Borrower or any of its Subsidiaries or the
properties of Borrower or any of its Subsidiaries before any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which, if determined adversely to the Borrower or any of
its Subsidiaries, would reasonably be expected to have a material adverse effect
on the financial condition, properties or operations of the Borrower or any
Subsidiaries and where such claim(s) exceed $200,000 individually, or
$500,000 in the aggregate.
(e) Except for the sale of TRIAZ under an Applicable License,
Borrower has not derived ten percent (10%) or more of Borrower's Net Sales in
any Fiscal Year from any Applicable License as described in Section 6.14 of the
Credit Agreement.
(f) Except as disclosed by Borrower to Lender in writing
contemporaneously with the execution and delivery of this Amendment, Borrower
does not have any patent applications pending before the PTO Office.
(g) There are no oral agreements, understandings or course of
conduct that would modify, amend, rearrange, vary, diminish or impair the Loan
Documents or the obligation of Borrower to pay the indebtedness evidenced
thereby or to perform fully the obligations of Borrower in strict accordance
with the Loan Documents, or which would permit Borrower to void or avoid its
obligations in whole or in part.
(h) All of the respective representations and warranties made by
Borrower in the Loan Documents remain true, complete and correct as of the date
hereof, including, without limitation, the representations and warranties in
Section 5 of the Credit Agreement, except to the extent of any changes to such
representations and warranties previously disclosed in writing to Lender.
No representation or warranty made by Borrower and contained herein or in the
other Loan Documents, and no certificate, information or report furnished or to
be furnished by Borrower in connection with any of the Loan Documents or any of
the transactions contemplated hereby or thereby, contains or will contain a
misstatement of material fact, or omits or will omit to state a material fact
required to be stated in order to make the statements contained herein or
therein not misleading in the light of the circumstances under which such
statements were made.
6. CONTINUED ENFORCEABILITY OF LOAN DOCUMENTS. Except as modified herein,
all of the terms and provisions of the Loan Documents remain in full force and
effect. In the event of any conflict between the terms and provisions of this
Amendment and the terms and provisions of the Loan Documents, the terms and
provisions of this Amendment shall govern and prevail. Borrower acknowledges,
confirms and ratifies the enforceability of the Credit Agreement, the
Acquisitions Revolving Note and the Loan Documents, as modified pursuant to this
Amendment, and the continuing validity, enforceability and priority of the liens
and security interests granted in the Loan Documents.
7. RELEASE OF CLAIMS.
(a) Borrower hereby releases Lender and its officers, employees and
agents from all claims and demands (known and unknown) it may have on the date
hereof arising out of or in any way relating to the extension or denial of
credit by Lender to Borrower or other matters relating to the indebtedness, any
collateral securing payment and performance of such indebtedness, or any matter
preliminary to the execution and delivery by Borrower and Lender of this
Amendment. The release set forth above shall not extend to any claim arising
after the date of execution hereof (which may be after the effective date of
this Agreement) to the extent based on acts or omissions of Lender occurring
after such date, except that such release is specifically intended by the
parties to include the transactions leading up to the execution of this
Amendment. This Amendment and the release provisions contained in this Section 7
are contractual, and not a mere recital.
(b) Borrower acknowledges and agrees that Lender is not, and shall
not be, obligated in any way to continue or undertake any loan, financing or
other credit arrangement with Borrower, including, without limitation, any
renewal of the indebtedness evidenced by the Loan Documents, except on the terms
and subject to the conditions set forth in the Loan Documents as hereby amended
and modified.
(c) Borrower understands and acknowledges that Lender and Account
Holder are separate and distinct corporate entities, as well as affiliate
corporations, and Borrower has knowingly and consciously made the determination
to proceed with the credit arrangements with Lender as provided in this Credit
Agreement and to maintain the investment advisor and custodian relationship with
Account Holder as provided in the Investment Agreement. Borrower (i) knowingly
waives and releases Lender for, from and against any claim, demand, cause of
action, liability, damages and expenses incurred by Borrower and (ii) covenants
and agrees that it will not claim, or attempt to claim, rights of setoff,
off-set, recoupment or the like against Lender, in the case of both clauses (i)
and (ii), arising out of, based upon, relating to, or otherwise occurring as a
result of, any acts or omissions of, or any breach of contract or tort or any
other theory of liability by, Account Holder. This provision is not intended to
affect any rights or remedies of Borrower against Lender pursuant to the Credit
Agreement.
8. CONDITIONS OF CLOSING. Lender's obligation to enter into this Amendment
and the other documents and instruments required hereunder shall be subject to
the satisfaction of all of the following conditions on or before February 14,
2003 (the "Closing" or the "Closing Date") in a manner, form and substance
satisfactory to Lender, which conditions may be waived by Lender in writing in
its sole and absolute discretion.
(a) On the Closing Date, the representations and warranties of
Borrower set forth in the Loan Documents shall be true and correct in all
material respects when made and at and as of the time of the Closing.
(b) The following shall have been delivered to Lender, each duly
authorized, executed and acknowledged, where applicable, and in form and
substance satisfactory to Lender:
(i) This Amendment;
(ii) First Amendment to Amended and Restated Patent Collateral
Assignment and Security Agreement;
(iii) First Amendment to Amended and Restated Trademark,
Tradename and Service Mark Collateral Assignment and Security Agreement;
(iv) A certificate of the Secretary or an Assistant Secretary
of the Borrower, certifying as to the resolutions of the directors and, if
required, the shareholders of the Borrower, authorizing the execution, delivery
and performance of the Fifth Amendment and all other documents and instruments
incident thereto and to the transactions contemplated by the Fifth Amendment,
reasonably satisfactory to Lender and its counsel.
(c) Borrower shall have performed and complied in all material
respects with all agreements and conditions contained in the Loan Documents to
be performed by or complied
with by Borrower prior to or at the Closing, and no Event of Default or Default
shall have occurred and be continuing or would occur by Borrower entering into
this Amendment and each condition precedent to the effectiveness of each of the
Loan Documents shall have been satisfied.
(d) Lender shall have received such documents as Lender shall
require to establish the proper organization and good standing of Borrower, the
authority of Borrower to execute this Amendment and any other documents or
instruments required hereunder, and evidence that all approvals and/or consents
of, or other action by, any shareholder, governmental agency or other Person
whose approval or consent is necessary or required to enable Borrower to (a)
enter into and perform its obligations under the Loan Documents and (b) grant to
Lender the Security Interests, have been obtained.
(e) All filings of Uniform Commercial Code financing statements and
other filings and actions necessary to perfect and maintain the Security
Interests as first, valid and perfected security interest in the Collateral
shall have been filed or taken (or such filings delivered for filing immediately
following the Closing, to Lender or a third party acceptable to Lender) and
confirmation thereof shall have been received by Lender.
(f) Lender shall have determined to its satisfaction that, as of the
Closing Date, there has been no material adverse change in the financial
condition of Borrower from the financial statements dated as of_______________,
2002 and other documents submitted by Borrower to Lender prior to the Closing
Date.
(g) Borrower shall have paid to Lender an extension fee of $32,500,
which shall be fully earned and non-refundable upon Lender's execution and
delivery of this Amendment, and, when invoiced, Lender's reasonable attorneys'
fees and costs incurred in connection with this Amendment.
(h) Lender shall be satisfied that (a) Borrower has good and
indefeasible title to all of the Collateral and (b) Borrower at all times shall
be entitled to the use and quiet enjoyment of all assets necessary and desirable
for the continued ownership and operation of Borrower's business, including,
without limitation, the use of equipment, licenses, fixtures and warehouses.
9. DEFINITIONS. (a) The definition of "Maturity Date" in Section 1.1 of
the Credit Agreement is hereby deleted in its entirety and the following
inserted therefor:
"Maturity Date" means November 22, 2004.
and (a) Section 1.1 of the Credit Agreement is hereby amended to add the
following definitions in proper alphabetical order:
"Fifth Amendment" means that certain Fifth Amendment to Credit
and Security Agreement dated as of November 22, 2002 between
Borrower and Lender.
"Fourth Amendment" means that certain Fourth Amendment to
Credit and Security Agreement dated as of November 22, 2000 between
Borrower and Lender.
10. FEES. Section 2.11 of the Credit Agreement is hereby amended to add
the following:
(g) Upon execution and delivery of the Fifth Amendment, Borrower
agrees to pay to Lender an extension fee of $32,500, which shall be fully
earned and non-refundable upon Lender's execution and delivery of the
Fifth Amendment, and, when invoiced, Lender's reasonable attorneys' fees
and costs incurred in connection with the Fifth Amendment.
11. SECURITY INTEREST. Article 3 of the Credit Agreement is hereby amended
to add the following:
3.6 Authorization to File Financing Statements. Borrower hereby
irrevocably authorizes Lender at any time and from time to time to file a
record in any filing office in any Uniform Commercial Code jurisdiction to
perfect the lien on, and security interest in, the Collateral and to
provide any information required by Article 9 of the Uniform Commercial
Code of any jurisdiction for the sufficiency or filing office acceptance
of any record. The Borrower agrees to furnish any such information to the
Lender promptly upon the Lender's request. Borrower also ratifies its
authorization for the Lender to have filed in any Uniform Commercial Code
jurisdiction any record perfecting the lien on, and security interest in,
the Collateral filed before the date of the Fifth Amendment.
12. FINANCIAL CONDITION; NO ADVERSE CHANGE. Section 5.5 of the Credit
Agreement is hereby deleted in its entirety and the following inserted therefor:
Section 5.5 Financial Condition; No Adverse Change. The Borrower has
heretofore furnished to the Lender audited financial statements of the
Borrower for its Fiscal Year ended June 30, 2002 and such statements
fairly present the financial condition of the Borrower on the dates
thereof and the results of its operations and cash flows for the period
then ended and were prepared in accordance with generally accepted
accounting principles applied in a consistent manner. Since the date of
such financial statements of the Borrower, there has been no material
adverse change in the business, properties or condition (financial or
otherwise) of the Borrower.
13. TOTAL LIABILITIES TO TANGIBLE NET WORTH. Section 6.16 of the Credit
Agreement is hereby deleted in its entirety and the following inserted therefor:
Section 6.16 Total Liabilities to Tangible Net Worth. Borrower shall
maintain on a consolidated basis, measured quarterly as of the last day of
March, June, September and December, a ratio of total liabilities under
GAAP to Tangible Net Worth of no more
than 3.0:1.0 from and including September 30, 2002 through the
remaining term of this Agreement.
14. MISCELLANEOUS.
(a) Arbitration Agreement; Waiver of Right to Jury Trial. The
Agreement contains an arbitration provision, governing law provision and waiver
of right to jury trial. In the event of any dispute arising out of or related to
this Amendment, the provisions of Section 9.12 of the Agreement shall apply.
(b) Voluntary Agreement. Borrower represents and warrants to Lender
that (i) it is, or has had the opportunity to be, represented by legal counsel
of its choice in regard to the transaction provided for by this Amendment and
that such counsel (if engaged) has explained the significance of the terms, and
the meaning and effect of this Amendment; (ii) it is fully aware and clearly
understands all of the terms and provisions contained in this Amendment; (iii)
it has voluntarily, with full knowledge and without coercion or duress of any
kind, entered into this Amendment and the documents executed in connection with
this Amendment; (iv) it is not relying on any representations, either written or
oral, express or implied, made to it by Lender other than as set forth in this
Amendment; and (v) the consideration received by Borrower to enter into this
Amendment and the arrangement contemplated by this Amendment has been actual and
adequate.
(c) Entire Agreement. This Amendment and the Loan Documents
constitute the entire agreement among the parties as to the agreements and
understandings contemplated by this Amendment. All parties to this Amendment
acknowledge that there are no agreements, understandings, warranties or
representations among the parties except as set forth in the Loan Documents and
this Amendment.
(d) Counterpart Execution. This Amendment may be executed in
counterparts, each of which shall be deemed an original document, and all of
which combined shall constitute a single document.
(e) Waiver. Neither this Amendment nor any of the provisions hereof
may be changed, waived, discharged or terminated, except by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
(f) Headings. Paragraph or other headings contained in this
Amendment are for reference purposes only and are not intended to affect in any
way the meaning or interpretation of this Amendment.
(g) Severability. If any clause or provision of this Amendment is
determined to be illegal, invalid, or unenforceable under any present or future
law by the final judgment of a court of competent jurisdiction, such clause or
provision shall be ineffective, but the remainder of this Amendment will not be
affected thereby.
(h) Binding Effect. All of the provisions of this Amendment shall be
binding upon and shall inure to the benefit of Borrower and Lender and their
permitted successors and
assigns, including, without limitation, any successor holder of any Note and any
successor mortgagee/beneficiary under any security document.
(i) Time of the Essence. Time is of the essence of each and every
provision under this Amendment.
(j) Amendment. Except as specifically set forth herein, the
Agreement and the other Loan Documents shall remain in full force and effect. In
the event of a conflict between the terms and provisions of this Amendment and
the terms and provisions of the Agreement, the terms and provisions of this
Amendment shall govern and control. Nothing contained in this Amendment is
intended to or shall be construed as relieving any person or entity, whether a
party to this Amendment or not, of any of such person's or entity's obligations
to Lender.
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IN WITNESS WHEREOF, this Amendment is executed to be effective as of the
date first above written.
BORROWER:
MEDICIS PHARMACEUTICAL CORPORATION,
a Delaware corporation
By: /s/ Mark A. Prygocki, Sr.
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Name: Mark A. Prygocki, Sr.
Title: Executive Vice President and Chief
Financial Officer
Execution Date: MARCH 6, 2003
LENDER:
WELLS FARGO BANK ARIZONA, NATIONAL
ASSOCIATION, a national banking association
By: /s/ Tim Billings
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Name: Tim Billings
Title: Vice president
Execution Date: February, 2003