Exhibit 10.1
FIRST AMENDMENT TO CREDIT
AGREEMENT
This First Amendment to Credit
Agreement, dated as of May 29, 2009 (this “
Agreement ”) is entered into by and among Angiotech
Pharmaceuticals, Inc., corporation organized under the laws of the
Province of British Columbia, Canada (“ Parent
”), each of Parent’s Subsidiaries identified on the
signature pages hereto (such Subsidiaries are referred to
hereinafter each individually as a “ Borrower ”,
and collectively as the “ Borrowers ”), Wells
Fargo Foothill, LLC, a Delaware limited liability company (“
Foothill ”), as administrative agent for the Lenders
(in such capacity, the “ Agent ”) and the
lenders named on the signature pages hereto (the “
Lenders ”).
WHEREAS, Parent, the Borrowers,
Agent and the Lenders are parties to that certain Credit Agreement,
dated as of February 27, 2009 (as amended, restated,
supplemented or otherwise modified from time to time, the “
Credit Agreement ”; capitalized terms used in this
Agreement and not defined herein shall have the applicable meanings
given to such terms in the Credit Agreement); and
WHEREAS, the Parent, the Borrowers,
Agent and the Lenders agree to modify the Credit Agreement on and
subject to the terms set forth herein.
NOW, THEREFORE, in consideration of
the premises and other good and valuable consideration, the parties
hereto hereby agree as follows:
1. Amendments to Credit
Agreement . Subject to the satisfaction of the conditions set
forth in Section 2 below, the Credit Agreement is amended in
the following respects:
(a) Section 2.2(b) of
the Credit Agreement is hereby amended and restated in its entirety
to read as follows:
“(b) Notwithstanding the
foregoing, the Lenders with Term Loan Commitments shall have no
obligation to make any Term Loan at any time on or after the First
Amendment Effective Date.”
(b) Section 2.4(c)(ii)
of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
“(ii) Term Loan
Commitments . The Term Loan Commitments shall terminate on the
First Amendment Effective Date.”
(c) Section 6.11 of the
Credit Agreement is hereby amended and restated in its entirety to
read as follows:
“6.11 Investments .
Except for Permitted Investments, directly or indirectly, make or
acquire any Investment or incur any liabilities (including
contingent obligations) for or in connection with any Investment;
provided , however , that (other than (a) an
aggregate amount of not more than $100,000 at any one time, in the
case of Parent and its
Subsidiaries (other than those that are CFCs),
(b) amounts deposited into Deposit Accounts specially and
exclusively used for payroll, payroll taxes and other employee wage
and benefit payments to or for Parent’s or its
Subsidiaries’ employees, (c) an aggregate amount of not
more than $12,000,000 at any one time (in each case, calculated at
current exchange rates), in the case of Subsidiaries of Parent that
are CFCs and (d) cash deposited in a Deposit Account at Credit
Suisse Securities (USA) LLC for the sole purpose of repurchasing
Senior Notes in accordance with clause (l) of the definition
of Permitted Investments, provided that (i) such cash shall be
used to purchase Senior Notes or returned to a Deposit Account
subject to a Control Agreement within three Business Days of
deposit and (ii) for the avoidance of doubt, the Borrowers
shall have cash and Cash Equivalents of at least $40,000,000 at all
times while such cash is deposited in such Deposit Account) Parent
and its Subsidiaries shall not have Permitted Investments
consisting of cash, Cash Equivalents, or amounts credited to
Deposit Accounts or Securities Accounts unless Parent or its
Subsidiary, as applicable, and the applicable securities
intermediary or bank have entered into Control Agreements with
Agent governing such Permitted Investments in order to perfect (and
further establish) Agent’s Liens in such Permitted
Investments. Subject to the foregoing proviso, Parent shall not and
shall not permit its Subsidiaries to establish or maintain any
Deposit Account or Securities Account unless Agent shall have
received a Control Agreement in respect of such Deposit Account or
Securities Account.”
(d) The definition of
“Availability Block” in Schedule 1.1 to the
Credit Agreement is hereby amended and restated in its entirety to
read as follows:
“‘ Availability
Block ’ means (a) prior to the First Amendment
Effective Date, $2,500,000 and (b) from and after the First
Amendment Effective Date, $0.”
(e) The definition of
“Permitted Investments” in Schedule 1.1 to the
Credit Agreement is hereby amended by (i) deleting the word
“and” at the end of clause (j) thereof,
(ii) deleting the period at the end of clause (k) thereof
and substituting a comma in lieu thereof and (iii) adding the
following new clauses (l) and (m) thereto to read as
follows:
“(l) purchases of the Senior
Notes so long as (i) Borrowers shall have cash and Cash
Equivalents of at least $40,000,000 both before and after giving
effect thereto (including, without limitation, during the period
when cash is deposited in the Deposit Account described in
Section 6.11(d) ), (ii) Borrowers shall not have
any outstanding Advances during the 30 day period immediately
before and the 30 day period immediately after giving effect
thereto, (iii) Agent shall be satisfied that no trade payables
of Parent or any of its Subsidiaries are aged in excess of
historical levels and no book overdrafts of Parent or any of its
Subsidiaries are aged in excess of historical levels immediately
prior to giving effect thereto, (iv) no Default or Event of
Default shall have occurred and be continuing either before or
after giving effect thereto, (v) Parent shall have provided
Agent with a written certificate, supported by detailed
calculations, that on a pro forma basis, Parent and its
Subsidiaries are projected to have (A) no outstanding Advances
at any time during the 12 month period immediately after giving
effect thereto and (B) no Defaults or Events of Default
existing at any time during the 12 month period immediately after
giving effect thereto, and (vi) any purchased Senior Notes
shall be cancelled within 1 Business Day of the purchase thereof by
Parent or its Subsidiaries, and
-2-
(m) one or more loans by Parent to
Haemacure Corporation in an aggregate principal amount not to
exceed $3,500,000, so long as (i) no Default or Event of
Default shall have occurred and be continuing either before or
after giving effect thereto, (ii) such loans are evidenced by
a promissory note issued by Haemacure Corporation to Parent, which
promissory note (and any warrant, guaranty or other security
document) shall have been pledged by Parent to Agent, and the
original of such promissory note (and any warrant, guaranty or
other security document), together with a note power in favor of
Agent which is in form and substance reasonably satisfactory to
Agent, shall have been delivered by Parent to Agent, in each case,
in accordance with the terms of the Security Agreement, and
(iii) in the event that the Indebtedness evidenced by such
loans is converted to capital Stock in Haemacure Corporation (or
any of its Affiliates), such capital Stock shall be pledged to
Agent in accordance with the terms of this Agreement and the
Security Agreement.”
(f) The following new definitions
are hereby added to Schedule 1.1 to the Credit Agreement in
appropriate alphabetical order:
“ ‘First
Amendment ’ means the First Amendment to Credit
Agreement, dated as of May 29, 2009, by and among Parent,
Borrowers, Agent and Lenders.”
“‘ First Amendment
Effective Date ’ has the meaning assigned to the term
‘Amendment Effective Date’ in the First
Amendment.”
(g) Schedule C-1 to the
Credit Agreement is hereby amended and restated in its entirety as
set forth on Exhibit A to this Agreement.
(h) Schedule P-2 to the
Credit Agreement is hereby amended and restated in its entirety as
set forth on Exhibit B to this Agreement.
2. Conditions to
Effectiveness . This Agreement shall become effective (the
“ Amendment Effective Date ”) when all of the
following conditions have been satisfied:
(a) Agent shall have received a copy
of this Agreement duly executed by Parent, the Borrowers and the
Lenders;
(b) Agent shall have received a copy
of the Consent and Affirmation set forth as Exhibit C to
this Agreement duly executed by the Guarantors;
(c) as of the Amendment Effective
Date, the representations and warranties of Parent and the
Borrowers herein, in Section 4 of the Credit Agreement and in
each other Loan Document shall be true and correct in all material
respects (except that such materiality qualifier shall not be
applicable to any representations and warranties that already are
qualified or modified by materiality in the text thereof) after
giving effect to this Agreement on and as of the Amendment
Effective Date as though made on and as of such date (except to the
extent such representations and warranties expressly relate to an
earlier date), and no Default or Eve
