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
