Credit Agreement [Amendment No. 1] - Retrophin Inc. and US Bank NA
Execution Version
Amendment No. 1 to Credit Agreement
This Amendment No. 1 (this “Amendment”) to that certain Credit Agreement, dated as of June 30, 2014, by and among Retrophin, Inc., as borrower (the “Borrower”), the Lenders from time to time party thereto and U.S. Bank National Association, as administrative agent and collateral agent (in such capacity, the “Administrative Agent”), as amended through the date hereof (the “Existing Credit Agreement”) is dated as of July 16, 2014, by and among the Borrower, the Lenders constituting the Majority Lenders on the signature pages hereto, and the Administrative Agent. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Existing Credit Agreement.
RECITALS
WHEREAS, Section 6.07 of the Existing Credit Agreement provides that the Borrower shall not, and shall not permit any of its Subsidiaries to, make or hold any Investments other than the Investments permitted therein; and
WHEREAS, Borrower has advised the Majority Lenders that it wishes to make open market or block trade purchases of the Capital Stock and/or American depositary receipts of Clinuvel Pharmaceuticals Limited (the “Specified Investments”) and the Majority Lenders have agreed to permit the Specified Investments.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual promises and undertakings in this Amendment, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms; References. Unless otherwise specifically defined herein, each term used herein that is defined in the Amended Credit Agreement (as defined below) has the meaning assigned to such term in the Amended Credit Agreement. Each reference in the Existing Credit Agreement to “this Agreement”, “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference, and each reference in any other Loan Document to “the Credit Agreement”, “thereof”, “thereunder”, “therein” or “thereby” or any other similar reference to the Existing Credit Agreement shall, from the Amendment Effective Date (as defined below), refer to the Existing Credit Agreement after giving effect to the amendments herein (the “Amended Credit Agreement”).
2. Amendments. Section 6.07 of the Existing Credit Agreement is hereby amended as follows:
| (a) | the introductory paragraph of Section 6.07 shall be deleted in its entirety and replaced with the following: |
The Borrower shall not, and shall not permit any of its Subsidiaries to, make or hold any Investment or Acquisition, including, without limitation, by way
of guaranty, in or to any Affiliate or any other Person (in each case, determined on the date such Investment or Acquisition is made, with the fair market value of each Investment or Acquisition being measured at the time made and without giving effect to subsequent changes in value), other than:
; and (b) the following shall be added as a new clause (i) thereto:
(i) Investments by the Borrower and its Subsidiaries in the Capital Stock or Authorised Depositary Receipts of Clinuvel Pharmaceuticals Limited; provided that the aggregate amount of Investments under this clause (i) shall not exceed $10,000,000 at any time outstanding.
3. Conditions Precedent. This Amendment shall become effective when, and only when, each of the following conditions shall have been satisfied (the date of satisfaction of such conditions precedent, the “Amendment Effective Date”):
(a) the Administrative Agent shall have received a counterpart of this Amendment executed by the Borrower and the Majority Lenders;
(b) the representations and warranties of the Loan Parties contained in the Loan Documents shall be true and correct in all material respects on and as of the Amendment Effective Date except to the extent that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date; provided that any such representation and warranty that is qualified by “materiality”, “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to any such qualification therein) as of the Amendment Effective Date or such earlier date, as applicable; and
(c) no Default or Event of Default shall have occurred and be continuing on the Amendment Effective Date, both immediately prior to and immediately after giving effect to this Amendment.
4. Loan Document. As of the Amendment Effective Date, this Amendment shall be a Loan Document executed pursuant to the Existing Credit Agreement, shall constitute a “Loan Document” for all purposes under the Amended Credit Agreement and (unless otherwise expressly indicated herein) be construed, administered and applied in accordance with the terms and provisions thereof.
5. Effect of Amendment. Except as expressly set forth herein, this Amendment shall not by implication or otherwise (i) limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders, the Administrative Agent, the Collateral Agent or any other party under the Existing Credit Agreement or any other Loan Document, (ii) alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect or (iii) entitle the
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Borrower or any Guarantor to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement or any other Loan Document in similar or different circumstances.
6. Section Captions. Section captions used in this Amendment are for convenience of reference only, and shall not affect the construction of this Amendment.
7. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by telecopy or other electronic means shall be effective as delivery of a manually executed counterpart of this Amendment.
9. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed in duplicate as of the day and year first above written.
| BORROWER: | RETROPHIN, INC. | |
| By: | /s/ Martin Shkreli | |
| Name: Martin Shkreli | ||
| Title: Chief Executive Officer | ||
[Signature Page to RTRX Amendment No. 1]
| ADMINISTRATIVE | ||
| AGENT: | U.S. BANK NATIONAL ASSOCIATION, | |
| as Administrative Agent | ||
| By: | /s/ James A. Hanley | |
| Name: James A. Hanley | ||
| Title: Vice President | ||
[Signature Page to RTRX Amendment No. 1]
| MAJORITY LENDERS: | ||
| Athyrium Opportunities Fund (A) LP, | ||
| as Lender | ||
| By: Athyrium Opportunities Associates LP, its general partner | ||
| By: Athyrium Opportunities Associates GP LLC, its general partner | ||
| By: | /s/ Jeffrey A. Ferrell | |
| Name: Jeffrey A. Ferrell | ||
| Title: President | ||
| Athyrium Opportunities Fund (B) LP, | ||
| as Lender | ||
| By: Athyrium Opportunities Associates LP, its general partner | ||
| By: Athyrium Opportunities Associates GP LLC, its general partner | ||
| By: | /s/ Jeffrey A. Ferrell | |
| Name: Jeffrey A. Ferrell | ||
| Title: President | ||
[Signature Page to RTRX Amendment No. 1]