Exhibit 10.1
WAIVER AND CONSENT
WAIVER AND
CONSENT, dated as of March 28, 2005 (this “
Waiver ”), with respect 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 have advised the Agents and the Lenders that they
received federal tax refunds on Thursday, March 24, 2005 in
the aggregate amount of $11,287,279.75 (the “ Tax
Refund ”);
WHEREAS, pursuant
to Section 2.05(c) and Section 2.05(d) of the Financing
Agreement, all of the Net Cash Proceeds of the Tax Refund (subject
to certain exceptions contained in such Sections) are required to
be applied to the Term Loan;
WHEREAS, the
Agents and the Lenders may be willing to permit the Borrowers to
retain all or a portion of the Net Cash Proceeds of the Tax Refund
on terms that have not yet been agreed upon; and
WHEREAS, until
such time as an alternate application of the Net Cash Proceeds of
the Tax Refund has been agreed upon by the Borrowers, the Agents
and the Lenders, if any, the Borrowers, the Agents and the Lenders
have agreed that the Net Cash Proceeds of the Tax Refund may be
held in a Collection Account subject to the dominion and control of
the Administrative Agent upon the terms and conditions set forth
herein;
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.
1
2.
Waiver and Consent .
(a) Pursuant
to the request of the Borrowers and in accordance with
Section 12.02 of the Financing Agreement, for the period
commencing on the effective date of this Waiver and ending on the
earlier to occur of (i) March 31, 2005 and (ii) the
date on which the Borrowers, the Agents and the Lenders agree in
writing upon an alternate application of the Net Cash Proceeds of
the Tax Refund (the “ Waiver Period ”), the
Agents and the Lenders hereby agree that the Net Cash Proceeds of
the Tax Refund shall not be required to be applied (and the Agents
and the Lenders shall not apply such Net Cash Proceeds) to the Term
Loan pursuant to Section 2.05(c) and Section 2.05(d) of the
Financing Agreement; provided , that (A) the Net Cash
Proceeds of the Tax Refund (x) are held by the Borrowers in
Account No. 24900272 with Banc of America Securities LLC (the
“ Designated Account ”), which Designated
Account is subject to that certain Collateral Account Notification
and Acknowledgement Agreement, dated as of May 21, 2004 (the
“ Securities Account Control Agreement ”), among
the Parent, the Collateral Agent and Banc of America Securities LLC
(the “ Securities Intermediary ”), and
(y) may not be used by the Borrowers for any purpose
whatsoever and (B) the Collateral Agent delivers to the
Securities Intermediary a “Notice of Exclusive Control”
under the Securities Account Control Agreement with respect to the
amount of the Tax Refund held in the Designated Account.
(b) Upon
the expiration of the Waiver Period, the waiver and consent
provided for herein shall immediately (without cure period) and
automatically terminate in its entirety and be of no further force
or effect and, except in the case of the expiration of the Waiver
Period pursuant to clause (a)(ii) above, all Net Cash Proceeds of
the Tax Refund required to be applied to the Term Loan pursuant to
Section 2.05(c) and Section 2.05(d) of the Financing
Agreement shall be applied by the Borrowers to the Term Loan
pursuant to such Sections.
(c) The
