Exhibit 10.1


 


SECOND AMENDMENT TO CREDIT AGREEMENT


 


THIS SECOND
AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), DATED AS OF JUNE 30th, 2005
by and among ALBANY MOLECULAR RESEARCH, INC. (the “Borrower”), BANK OF AMERICA,
N.A. (as successor by merger to Fleet National Bank), in its capacity as Lender
and Administrative Agent (each as hereinafter defined), JPMORGAN CHASE BANK,
N.A. as Lender and CITIZENS BANK OF MASSACHUSETTS, as Lender (collectively, the
“Lenders”);


 


WHEREAS, the
Borrower, the Administrative Agent and the Lenders are parties to a certain
credit agreement dated as of February 12, 2003 as amended by a first amendment
to credit agreement dated August 10, 2004 (as amended, the “Credit Agreement”)
(all capitalized terms used herein and not otherwise defined shall have the
meanings assigned to such terms in the Credit Agreement); and


 


WHEREAS, the
parties desire to modify the Credit Agreement in the manner hereinafter set
forth;


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which hereby being acknowledged, the parties hereto agree as follows:


 


1.                                       The
definition of EBIT set forth in Section 1.01 of Article I of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:


 


“EBIT” shall mean, for any period,
Net Income for such period, plus the sum of the amounts for such period
included in determining such Net Income of (i) Interest Expense and (ii) Income
Tax Expense, calculated in accordance with GAAP.


 


2.                                       The
definition of EBITDA set forth in Section 1.01 of Article I of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:


 


“EBITDA”
means, for any period, EBIT for such period, plus the sum (without duplication)
of the amounts for such period included in determining EBIT of (i) depreciation
expense, (ii) amortization expense (iii) non-cash charges associated with the Borrower’s
executive compensation/options program (iv) an amount not in excess of
$5,000,000.00 relating to miscellaneous non-cash charges and (v) an amount not
in excess of $27,000,000.00 relating to non-cash charges associated with
general intangibles, calculated in accordance with GAAP.”


 


3.                                       The
definition of EBIT to Interest Ratio set forth in Section 1.01 of
Article I of the Credit Agreement is hereby deleted in its entirety.


 


4.                                       The
definition of Operating Cash Flow Coverage Ratio set forth in Section
1.01 of Article I of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:


 





















 


“Operating Cash Flow Coverage Ratio”
means for the Borrower on a consolidated basis with all Subsidiaries the ratio
of (i) EBITDA less (ii) cash taxes paid less (iii) either (x) actual
Capital Expenditures or (y) if the aggregate total of cash and Cash Equivalents
on hand of the Borrower for the period in question exceeds $50,000,000.00, the
assumed amount of $10,000,000.00 to (i) current maturities of long term
debt plus (ii) Interest Expense.”


 


5.                                       The
definition of Permitted Investments set forth in Section 1.01 of Article
I of the Credit Agreement is hereby amended to (i)delete the “and” at the end
of subparagraph (g), (ii) delete the period at the end of subparagraph (h) and
add a semi-colon and (ii) include a new subparagraph (i) to read as follows:


 


“(i)                               investments
in or advances to or for the benefit of, an Affiliate in an aggregate amount
not to exceed at any time $25,000,000.00.”


 


6.                                       The
definition of “Revolving Credit Termination Date” in Section 1.01 of
Article I of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:


 


“Revolving Credit Termination Date”
means June 30, 2010 or such earlier date on which the Lender demands payment of
and accelerates the Revolving Loan as provided herein. On the Revolving Credit
Termination Date, all Revolving Loans shall mature and all unpaid principal,
accrued and unpaid interest and all other charges due hereunder and under any
other loan document shall be due and payable in full.”


 


7.                                       Subparagraph
(c) of Section 5.01 of Article V of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:


 


“(c)  concurrently with any delivery of financial
statements under clause (a) or (b) above, a certificate of a
Financial Officer of the Borrower (i) verifying to the best of his
knowledge as to whether a material Default has occurred and, if a material
Default has occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Section 6.12  and Section 5.09 hereof and
(iii) stating whether any change in GAAP or in the application thereof has
occurred since the date of the audited financial statements referred to in Section 3.04
and, if any such change has occurred, specifying the effect of such change on
the financial statements accompanying such certificate;”


 


8.                                       Section
5.09 of Article V of the Credit Agreement entitled “Additional Guarantors”
is hereby amended and restated in its entirety to read as follows:


 


“SECTION 5.09.  Additional Guarantors.  The Borrower will give the Administrative
Agent prompt written notice of the formation of any new Subsidiary.  With respect to all Domestic Subsidiaries,
such notice shall be accompanied by a


 





















 


Guaranty in form acceptable to
the Administrative Agent and a resolution of the Board of Directors of such
Subsidiary authorizing such Subsidiary to execute and deliver to the
Administrative Agent its unconditional written guarantee of the Loans and all
related obligations of the Borrower to the Lenders and further authorizing such
Subsidiary to be bound by and comply with all of the terms and provisions of
the Credit Agreement to the same extent as the Guarantors.  Notwithstanding the foregoing, in the event
that the Borrower and all existing Guarantors do not comprise 85% of each of
(i) total consolidated sales, (ii) total consolidated assets and (iii) total
consolidated EBIT, for the Borrower and all Subsidiaries, then within ten (10)
days’ thereof, the Borrower shall deliver either (i) a Guaranty from each non-Domestic
Subsidiary as set forth above or (ii) a valid and enforceable and perfected
pledge of sixty five percent (65%) of the common stock of each non-Domestic
Subsidiary.”


 


9.                                       Section
6.04 of the Credit Agreement entitled “Disposition of Property” is
hereby amended to (i) delete the “and” at the end of subsection (c) thereof,
(ii) replace the period at the end of subsection (d) thereof with “;and” and
(iii) add a new subsection (e) to read as follows:


 


(e)                                  the
entering into of a certain sale/leaseback transaction with the City of Albany
Industrial Development Agency on or about January 1, 2005.


 


10.                                 Section
6.12 of Article VI of the Credit Agreement entitled “Financial Covenants”
is hereby amended to (i) delete subparagraph (c), and (ii) re-letter
subparagraph (d) as subparagraph (c).


 


11.                                 As
consideration for the execution and delivery of this Amendment by the
Administrative Agent and the Lenders, upon the execution and delivery of this
Amendment by the Borrower, the Borrower shall pay to the Administrative Agent a
renewal fee equal to $30,000.00 to be distributed to the lenders by the
Administrative Agent on a pro-rata basis based upon the respective Revolving
Loan Commitments.


 


12.                                 The
Borrower hereby represents and warrants as follows:


 


(i) The
execution, delivery and performance of this Amendment has been authorized by
all necessary corporate action on behalf of the Borrower and when executed and
delivered, this Amendment will constitute the legal, valid and binding obligation
of the Borrower, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.


 


(ii) No event
has occurred which by itself or with the giving of notice or the passage of
time or both would constitute an Event of Default.


 


All
representations and warranties set forth in Article III of the Credit Agreement
are hereby restated and confirmed as of the date hereof.


 





















 


13.                                 As
modified hereby, all of the terms, provisions and conditions of the Credit
Agreement are hereby ratified and confirmed.


 


14.                                 This
Amendment shall be governed by, and construed under, the laws of the State of
New York.


 


15.                                 This
Amendment may be executed in several counterparts, each of which shall
constitute an original but when taken together shall constitute but one
instrument.


 





















 


IN WITNESS
WHEREOF, the parties have caused this Amendment to be executed by their duly
authorized officers as of the day and year first above written.


 


 


	
   

  	
  ALBANY
  MOLECULAR RESEARCH, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  	
   

  
	
   

  	
  NAME:

  	
   

  	
   

  
	
   

  	
  TITLE:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF
  AMERICA, N.A., as Administrative Agent and as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  	
   

  
	
   

  	
  NAME:

  	
   

  	
   

  
	
   

  	
  TITLE:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  	
   

  
	
   

  	
  NAME:

  	
   

  	
   

  
	
   

  	
  TITLE:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CITIZENS
  BANK OF MASSACHUSETTS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BY:

  	
   

  	
   

  
	
   

  	
  NAME:

  	
   

  	
   

  
	
   

  	
  TITLE: