Full Press Release Details
This Third Amendment to Credit Agreement (herein, the Third Amendment ) is dated as of November 28, 2016 and entered into by and between THE FEMALE HEALTH COMPANY, a Wisconsin corporation ( FHC ), ASPEN PARK PHARMACEUTICALS, INC., a Delaware corporation ( APP ), BADGER ACQUISITION SUB, INC., a Delaware corporation ( FHC Subsidiary ), and BMO HARRIS BANK N.A., a national banking association (the Lender or the Bank ).
A.FHC and Lender heretofore executed and delivered that certain Credit Agreement dated as of December 29, 2015 ( the Original Credit Agreement ), as amended by that certain First Amendment and Waiver to Credit Agreement and Security Agreement dated as of January 4, 2016 ( First Amendment ) and that certain Consent and Amendment to Credit Agreement dated as of March 31, 2016 ( Second Amendment ; the Original Credit Agreement, as amended by the First Amendment and Second Amendment, collectively, the Existing Credit Agreement ).
B.FHC has heretofore executed and delivered to the Lender that certain General Security Agreement dated as of December 29, 2015, as heretofore amended (the Security Agreement ) and certain other Collateral Documents, including without limitation the Pledge Agreement, to secure the Obligations.
C.FHC Subsidiary and Blue Hen Acquisition, Inc. ( Blue Hen ) heretofore executed and delivered to Lender that certain Guaranty Agreement dated as of April 1, 2016 (the Guaranty ) as required by the Existing Credit Agreement.
D.FHC Subsidiary and Blue Hen heretofore executed and delivered to Lender that certain General Security Agreement dated as of April 1, 2016, as heretofore amended, to secure the Obligations.
E.On or about October 31, 2016, FHC, Blue Hen and APP entered into that certain Amended and Restated Agreement and Plan of Merger dated as of October 31, 2016 by and among FHC, Blue Hen and APP ( Merger Agreement ).
F.In accordance with the terms of the Merger Agreement, Blue Hen merged with and into APP (the Merger ) with APP becoming the surviving entity and Blue Hen's legal existence as a separate entity ceasing.
G.As a result of the Merger, APP became a Wholly owned Subsidiary of FHC.
H.Prior to the date hereof, the following Default and Event of Default has occurred as a result of the Merger: (a) failure to comply with Section 7.4 of the Existing Credit Agreement; (b) the occurrence of a Change of Control; and (c) the failure to comply with any other provision contained in the Existing Credit Agreement as a result of the Merger, including Sections 6.1, 6.10, 6.12, 7.1, 7.2 and 7.3 (collectively, the Existing Default ).
I.FHC and Guarantors have requested that Lender (a) waive the Existing Default, and (b) extend credit and make financial accommodations available to APP, and (c) amend, rather than amend and restate, the Existing Credit Agreement, and the Lender is willing to do so under the terms and conditions set forth in this Third Amendment.
Now, Therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Each of the Loan Parties agrees and acknowledges that the Existing Default has resulted in the occurrence of a Default and Event of Default under the Credit Agreement. The Loan Parties have, therefore, requested that the Lender waive the Existing Default. Subject to the terms and conditions set forth herein, the Lender hereby waives: (a) the Existing Default specified in Recital H above; and (b) Lender's remedies with respect to the Existing Default. This waiver shall be narrowly construed and shall not extend to any other Defaults or Events of Default under, or failures to comply with, the Credit Agreement or any other Loan Document, nor shall this waiver prejudice any rights or remedies which the Lender may have or be entitled to with respect to any noncompliance, Defaults or Events of Default (other than the Existing Default) under the Credit Agreement or other Loan Documents.
Additional Borrower or APP means, Aspen Park Pharmaceuticals, Inc., a Delaware corporation
APP IP Security Agreement means that certain Intellectual Property Security Agreement dated as of Third Amendment Effective Date by and between Additional Borrower and Bank, as the same may be amended, modified, supplemented or restated from time to time.
APP Security Agreement means that certain General Security Agreement dated as of Third Amendment Effective Date by and between Additional Borrower and Bank, as the same may be amended, modified, supplemented or restated from time to time.
APP Pledge Agreement means that certain Stock Pledge Agreement dated as of the Third Amendment Effective Date by and between Original Borrower and Bank, and acknowledged by APP, as the same may be amended, modified, supplemented or restated from time to time.
APP Waiver Agreement means that certain Landlord Lien Waiver and Collateral Access Agreement dated as of November 1, 2016 by and between Frost Real Estate Holdings, LLC and the Bank.
Arina APA means that certain Asset Purchase Agreement dated as of the Effective Date (as defined therein) by and between APP and Arina Therapeutics, LLC, an Ohio limited liability company.
Arina Subordination Agreement means that certain Subordination Agreement dated as of November 11, 2016, by and Arina Therapeutics, LLC, an Ohio limited liability company, APP, and the Bank, as the same may be amended, modified, restated or supplemented from time to time.
Articles of Amendment means the Articles of Amendment to the Original Borrower's Amended and Restated Articles of Incorporation containing the Statement of Terms of the Original Borrower's Class A Convertible Preferred Stock Series 4 and filed with the Wisconsin Department of Financial Institutions on November 1, 2016, but effective as of October 31, 2016.
Borrowers means, collectively, The Female Health Company, a Wisconsin corporation and Aspen
Park Pharmaceuticals, Inc., a Delaware corporation.
Business Transaction means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of any line or lines of business or division of a Person, (b) the acquisition of in excess of 50% of the Equity Interests of any Person (other than a Person that is a Subsidiary), or otherwise causing any Person to become a Subsidiary, (c) a Change of Control, or (d) a merger or consolidation or any other combination with another Person.
FHC IP Security Agreement means that certain Intellectual Property Security Agreement dated as of December 29, 2015, by and between Original Borrower and Bank, as the same may be amended, modified, supplemented or restated from time to time.
FHC Security Agreement means that certain Security Agreement dated as of December 29, 2015 between Original Borrower and Bank, as amended, and as the same may be amended, modified, supplemented or restated from time to time.
Guarantor Security Agreement means that certain General Security Agreement dated as of April 1, 2016 and executed by the Guarantors in favor of the Bank, as amended, and as the same may be amended, modified, restated or supplemented from time to time.
Loan Party or Loan Parties means, individually or collectively, the Borrowers, each Subsidiary of any Borrower, and any other Person that (i) executes a Guaranty, (ii) grants a Lien on all or substantially all of its assets to secure payment of any of the Obligations, or (iii) delivers one or more Loan Documents as a Borrower, Guarantor, or otherwise to the benefit of the Bank.
Original Borrower means The Female Health Company, a Wisconsin corporation.
Security Agreements means, collectively, the FHC Security Agreement, the APP Security Agreement, and the Guarantor Security Agreement.
Third Amendment Effective Date means November 28, 2016.
Third Amendment to Credit Agreement means that certain Third Amendment to Credit Agreement dated as of November 28, 2016 by and between the Borrowers, the Guarantor, and the Bank.
Change of Control means any of (a) the acquisition by any person or group (as such terms are used in sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) (other than any person or group that files a report on Schedule 13G unless and until such person or group is required to file a report on Schedule 13D) at any time of beneficial ownership of (i) 25% or more of the outstanding capital stock or other equity interests of the Original Borrower or (ii) any of outstanding capital stock or other equity interests of the Additional Borrower, each on a fully-diluted basis, other than acquisitions of such interests by the current directors, officers and employees of such applicable Borrower, (b) the failure of individuals who are members of the board of directors (or similar governing body) of the Original Borrower on the Closing Date (together with any new or replacement directors whose nomination for election was approved by a majority of the directors who were either directors on the Closing Date or previously so
approved) to constitute a majority of the board of directors (or similar governing body) of the Original Borrower, or (c) any Change of Control (or words of like import), as defined in any agreement or indenture relating to any issue of material Indebtedness of Issuer or any Subsidiary, shall occur.
Collateral Documents means the Pledge Agreement, the FHC Security Agreement, the FHC IP Security Agreement, the Control Agreements, the APP Security Agreement, the APP IP Security Agreement, the APP Pledge Agreement, the Guarantor Security Agreement, and all other mortgages, deeds of trust, security agreements, pledge agreements, assignments, financing statements and other documents as shall from time to time secure the Obligations or any part thereof.
Material Adverse Effect means (a) a material adverse change in, or material adverse effect upon, the operations, business, Property, or condition (financial or otherwise) of either the Original Borrower, or of the Original Borrower and its Subsidiaries taken as a whole, (b) a material impairment of the ability of any Borrower or any Subsidiary to perform its material obligations under any Loan Document, or (c) a material adverse effect upon (i) the legality, validity, binding effect or enforceability against any Borrower or any Subsidiary of any Loan Document or the rights and remedies of Bank thereunder or (ii) the perfection or priority of any Lien granted under any Collateral Document.
Permitted Acquisition means any acquisition by any Loan Party, whether by purchase, merger or otherwise, of all or substantially all of the assets of, all of the Equity Interests of, or a business line or unit or a division of, any Person (such Person, the Acquired Business ) which is prior approved by the Bank in writing and in the Bank's sole discretion.
Pledge Agreement means that certain Charge Over Shares Agreement dated as of December 29, 2015 by and between Original Borrower, The Female Health Company Limited, a company organized under the laws of the United Kingdom, and Bank, as the same may be amended, modified, supplemented or restated from time to time.
Tangible Net Worth means for each applicable period, total stockholders' equity on the Original Borrower's consolidated balance sheet as reported in its Form 10-K or 10-Q less all amounts appearing on the assets side of its consolidated balance sheet representing an intangible asset under GAAP; provided that, total stockholders' equity shall include outstanding shares of the Original Borrower's Class A Convertible Preferred Stock Series 4 as further described in the Articles of Amendment notwithstanding GAAP's treatment of such equity (i.e. treated as a liability appearing on the liabilities side of the balance sheet of the Original Borrower in accordance with GAAP).
Total Funded Debt means, at any time the same is to be determined, the sum (but without duplication) of (a) all Indebtedness for Borrowed Money of the Original Borrower and its Subsidiaries at such time, and (b) all Indebtedness for Borrowed Money of any other Person which is directly or indirectly guaranteed by the Original Borrower or any of its Subsidiaries or which the Original Borrower or any of its Subsidiaries has agreed (contingently or otherwise) to purchase or otherwise acquire or in respect of which the Original Borrower or any of its Subsidiaries has otherwise assured a creditor against loss; provided, however, that to the extent that obligations of the Original Borrower to the holders of the outstanding shares of the Original Borrower's Class A Convertible Preferred Stock Series 4 as further described in the Articles of Amendment are, according to GAAP, treated as Indebtedness for Borrowed Money, all such obligations shall be excluded from the calculation of Total Funded Debt.
In consideration of the Bank's agreement to amend, rather than amend and restate this Agreement, the benefit to the Borrowers and other Loan Parties, which is hereby expressly acknowledged by each of them, any reference to Borrower herein, shall be interpreted to be qualified by any , each , or either , or, shall be deemed to include both Borrowers. In each case involving a question as to which qualification may control (i.e. a question as to whether a specific representation, covenant, or other provision, or portion thereof, shall apply to one or more of the
Borrowers), the Bank shall, in its sole discretion interpret same in a manner most favorable to the Bank, as determined by the Bank in its sole discretion, and such interpretation shall be binding on the Bank and each of the Loan Parties.
Notwithstanding anything to the contrary contained herein, the Obligations of the Borrowers under the Revolving Loans shall be joint and several.
Notwithstanding anything to the contrary contained herein, the Borrowers' obligation to reimburse L/C Obligations shall be joint and several.
(f) As soon as reasonably practicable, but in no event later than sixty (60) days after the Third Amendment Effective Date, Additional Borrower shall terminate its operating account with Chase Bank further described on Schedule 6.2 and cause same to be transferred and maintained at the Bank or one of its affiliates.
(g)The Loan Parties and the Bank shall have entered into an amendment and restatement of the Credit Agreement (the "Restated Credit Agreement") and such other documents and agreements related thereto as the Bank may reasonably require on the earlier of (i) the occurrence of a Business Transaction, or (ii) December 29, 2017 (provided that the Loan Parties and the Bank and their respective counsel shall have commenced the discussions and drafting of the Restated Credit Agreement on or before December 1, 2017).
"5.1 Organization and Qualification. Each Borrower is (a) duly organized, validly existing, and in good standing as a corporation under the laws of its jurisdiction of incorporation; (b) has full and adequate power to own its Property and conduct its business as now conducted; and (c) is duly licensed or qualified and in good standing in each jurisdiction in which the nature of the business conducted by it or the nature of the Property owned or leased by it requires such licensing or qualifying, except, with respect to this clause (c), where the failure to do so would not have a Material Adverse Effect."
"On and after the Third Amendment Effective Date, Borrowers shall use the proceeds of the Revolving Credit for working capital and general company purposes; provided that the Borrowers may also use said proceeds for financing capital expenditures and Permitted Acquisitions and for such other legal and proper purposes as are consistent with all applicable laws."
5.11 Litigation. Except as disclosed on Schedule 5.11, there is no litigation or governmental or
arbitration proceeding or labor controversy pending, nor to the knowledge of Borrower threatened, against Borrower or any Subsidiary or any of their Property which if adversely determined, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(f) Indebtedness for Borrowed Money consisting of deferred purchase price obligations of Additional Borrower as further described in, and only to such extent as set forth in, the Arina APA;
(h) Indebtedness for Borrowed Money consisting, to the extent treated as such under GAAP, of obligations of Original Borrower to the holders of the outstanding shares of the Original Borrower's Class A Convertible Preferred Stock Series 4 as further described in, and only to the extent set forth in, the Articles of Amendment; and
(i) guaranty by Original Borrower of the obligations of Additional Borrower under that certain Office Lease dated as of October 31, 2016, by and between Frost Real Estate Holdings, LLC and Additional Borrower.
(g) Cash collateral securing indebtedness permitted by Section 7.1(g);
(h) Lien granted in favor of Arina Therapeutics, LLC, an Ohio limited liability company pursuant to the Arina APA provided that at all times, such Lien granted to Arina shall be subject to the terms of the Arina Subordination Agreement and subordinated to the Lien of the Bank; and
(i) Liens granted in favor of Bank pursuant to the Collateral Documents.
(d) the merger of any Subsidiary with and into any Borrower or any other Subsidiary; provided that, (i) in the case of any merger involving the Original Borrower, the Original Borrower is the corporation surviving the merger, and (ii) the Borrowers obtain the prior written consent of the Bank;
Notwithstanding anything to the contrary contained herein, the Borrowers agree that the Obligations under this Section 9.10(a) and any other Obligation under this Agreement shall be joint and several.
The effectiveness of this Third Amendment is subject to the satisfaction of all of the following conditions precedent:
[SIGNATURE PAGE TO FOLLOW]
This Third Amendment to Credit Agreement is entered into as of the date and year first above written.
THE FEMALE HEALTH COMPANY
By: /s/ Mitchell S. Steiner, M.D.
Name: Mitchell S. Steiner, M.D.
Title: President and Chief Executive Officer
ASPEN PARK PHARMACEUTICALS, INC.
By: /s/ Mitchell S. Steiner, M.D.
Name: Mitchell S. Steiner, M.D.
Title: President and Chief Executive Officer
BADGER ACQUISITION SUB, INC.
By: /s/ Mitchell S. Steiner, M.D.
Name: Mitchell S. Steiner, M.D.
Title: President and Chief Executive Officer
This Third Amendment to Credit Agreement is entered into as of the date and year first above written.
BMO HARRIS BANK N.A.
By: /s/ Jaime Freeman
Title: Vice President