Exhibit 10.8.2
SECOND AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT AND
WAIVER
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND WAIVER , dated as of May 15, 2006 (this “
Amendment ”), is by and among BRADLEY
PHARMACEUTICALS, INC., a Delaware corporation (the “
Borrower ”), those Domestic Subsidiaries of the
Borrower identified as “Guarantors” on the signature
pages hereto and such other Domestic Subsidiaries of the Borrower
as may from time to time become a party hereto (collectively, the
“ Guarantors ”), and WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association, as administrative
agent for the Lenders (in such capacity, the “
Administrative Agent ”).
W I T N E S S E T H
WHEREAS, the Borrower, the Guarantors, the lenders party
thereto (the “ Lenders ”) and the Administrative
Agent are parties to that certain Amended and Restated Credit
Agreement dated as of November 14, 2005 (as amended, restated,
amended and restated, modified or supplemented from time to time,
the “ Credit Agreement ”; capitalized terms used
herein shall have the meanings ascribed thereto in the Credit
Agreement unless otherwise defined herein);
WHEREAS, the Borrower has failed to deliver to the
Administrative Agent annual financial statements for the fiscal
year ended December 31, 2005 by April 30, 2006, in violation of
Section 5.1(a) of the Credit Agreement (the “ Section
5.1(a) Event of Default ”);
WHEREAS, the Borrower has failed to become a Current Filer
by April 30, 2006, in violation of Section 5.14(b) of the Credit
Agreement (the “ Section 5.14(b) Event of Default
”; and together with the Section 5.1(a) Event of Default, the
“ Acknowledged Events of Default ”);
WHEREAS, the Borrower has requested the Required Lenders (a)
waive the Acknowledged Events of Default, (b) notwithstanding the
Acknowledged Events of Default, allow the Borrower to continue
outstanding LIBOR Rate Loans (“ LIBOR Continuation
”), and (c) amend certain provisions of the Credit Agreement;
and
WHEREAS, the Required Lenders are willing to waive the
Acknowledged Events of Default, consent to the LIBOR Continuation
and amend the Credit Agreement, in each case subject to the terms
and conditions hereof.
NOW, THEREFORE, in consideration of the agreements
hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
WAIVER AND CONSENT
1.1 Waiver of Acknowledged Events of Default.
Notwithstanding the provisions of the Credit Agreement to the
contrary, the Required Lenders hereby waive, on a one-time basis,
the Acknowledged Events of Default.
1.2 Consent. Notwithstanding the provisions of the
Credit Agreement to the contrary, the Required Lenders hereby
consent, on a one-time basis, to the LIBOR Continuation.
1.3 Effectiveness of Waiver and Consent. The waiver
and consent set forth in Section 1.1 and Section 1.2 shall be
effective only to the extent specifically set forth herein and
shall not (a) be construed as a waiver of any breach or default
other than as specifically waived herein nor as a waiver of any
breach or default of which the Lenders have not been informed by
the Borrower, (b) affect the right of the Lenders to demand
compliance by the Borrower with all terms and conditions of the
Credit Agreement, except as specifically modified or waived herein,
(c) be deemed a waiver of any transaction or future action on the
part of the Borrower requiring the Lenders’ or the Required
Lenders’ consent or approval under the Credit Agreement, or
(d) except as waived hereby, be deemed or construed to be a waiver
or release of, or a limitation upon, the Administrative
Agent’s or the Lenders’ exercise of any rights or
remedies under the Credit Agreement or any other Credit Document,
whether arising as a consequence of any Event of Default which may
now exist or otherwise, all such rights and remedies hereby being
expressly reserved.
1.4 Acknowledgement of Default Rate . Notwithstanding
the provisions of the Credit Agreement to the contrary, the Lenders
acknowledge that the Borrower shall not be required to pay the
default interest set forth in Section 2.9 of the Credit Agreement
as to the Acknowledged Events of Default; provided ,
however , if the Borrower fails to (a) deliver to the
Administrative Agent the financial statements referred to in
Section 5.1(a) of the Credit Agreement for the fiscal year ended
December 31, 2005 and (b) file all required financial statements on
Form 10-K with the SEC for the fiscal year ended December 31, 2005,
in each case by May 31, 2006, the Borrower hereby agrees to pay
such default interest on a retroactive basis beginning on May 1,
2006.
SECTION 2
AMENDMENTS
2.1 New Definition . The following definition is
hereby added to Section 1.1 of the Credit Agreement in the
appropriate alphabetical order:
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“ Second Amendment Effective Date ” shall
mean May 15, 2006.
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2.2 Amendment to Section 1.1 . The definition of
“Consolidated EBITDA” in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
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” Consolidated EBITDA ” shall mean, for any
period, the sum of (i) Consolidated Net Income for such period,
plus (ii) an amount which, in the determination of
Consolidated Net Income for such period, has been deducted for (A)
Consolidated Interest Expense, (B) total federal, state, local and
foreign income, value added and similar taxes, (C) depreciation,
amortization expense and (D) certain one-time professional and
legal fees and non-cash items incurred during such period, as set
forth on Schedule 1.1-4 , plus (iii) the Initial
MediGene Payment to the extent classified as an expense in
accordance with GAAP, minus (iv) any non-cash reduction in
any reserve account of a Credit Party during such period, all as
determined in accordance with GAAP.
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2.3 Amendment to Section 1.1 . The definition of
“Current Filer” in Section 1.1 of the Credit Agreement
is hereby amended and restated in its entirety to read as
follows:
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“ Current Filer ” shall mean the Borrower has
filed all required financial statements on Form 10-Q and Form 10-K
with the SEC (including, without limitation, the Borrower’s
annual financial statements on Form 10-K for its fiscal year ended
December 31, 2005 and the Borrower’s quarterly financial
statements on Form 10-Q for its fiscal quarter ended March 31,
2006).
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2.4 Amendment to Section 1.1 . Clause (vii) in the
definition of “Permitted Investments” in Section 1.1 of
the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
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(vii) Investments existing as of the Second Amendment Effective
Date, as set forth on Schedule 1.1-2 and any refinancing or
replacement of any such Investment in a principal or initial amount
not to exceed the principal or outstanding amount of such
Investment (plus accrued interest thereon) at the time of such
refinancing or replacement; provided that such refinancing
or replacement Investment shall (A) have substantially the same
tenor and be substantially the same type of Investment as the
Investment refinanced or replaced or other Permitted Investment and
(B) have the same or higher rating or credit quality as the
Investment refinanced or replaced or other Permitted
Investment;
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2.5 Amendment to Section 5.1(a) . Section 5.1(a) is
hereby amended and restated in its entirety to read as
follows:
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(a) Annual Financial Statements . Subject to the terms of
Section 5.14(a), as soon as available, and in any event no later
than the earlier of (i) the date the Borrower is required by the
SEC to deliver its Form 10-K for any fiscal year of the Borrower
and (ii) ninety (90) days after the end of each fiscal year of the
Borrower ( provided that such financial statements for the
fiscal year ended December 31, 2005 shall be delivered,
and
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the
corresponding Form 10-K shall be filed with the SEC, no later than
May 31, 2006), a copy of the consolidated and consolidating balance
sheet of the Borrower and its consolidated Subsidiaries as at the
end of such fiscal year and the related consolidated and
consolidating statements of income and retained earnings and of
cash flows of the Borrower and its consolidated Subsidiaries for
such year, audited (with respect to the consolidated statements
only) by a firm of independent certified public accountants of
nationally recognized standing reasonably acceptable to the
Administrative Agent, in each case setting forth in comparative
form consolidated and consolidating figures for the preceding
fiscal year, reported on without a “going concern” or
like qualification or exception, or qualification indicating that
the scope of the audit was inadequate to permit such independent
certified public accountants to certify such financial statements
without such qualification;
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2.6 Ame
