**Exhibit 10.1**

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SECOND AMENDMENT TO CREDIT AGREEMENT

 

THIS SECONDAMENDMENT TO CREDIT AGREEMENT (this “Amendment”), DATED AS OF JUNE 30th, 2005by 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 Lenderand Administrative Agent (each as hereinafter defined), JPMORGAN CHASE BANK,N.A. as Lender and CITIZENS BANK OF MASSACHUSETTS, as Lender (collectively, the“Lenders”);

 

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

 

WHEREAS, theparties desire to modify the Credit Agreement in the manner hereinafter setforth;

 

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

 

1.                                       Thedefinition of EBIT set forth in Section 1.01 of Article I of the CreditAgreement 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 periodincluded in determining such Net Income of (i) Interest Expense and (ii) IncomeTax Expense, calculated in accordance with GAAP.

 

2.                                       Thedefinition of EBITDA set forth in Section 1.01 of Article I of theCredit Agreement is hereby amended and restated in its entirety to read asfollows:

 

“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) depreciationexpense, (ii) amortization expense (iii) non-cash charges associated with the Borrower’sexecutive compensation/options program (iv) an amount not in excess of$5,000,000.00 relating to miscellaneous non-cash charges and (v) an amount notin excess of $27,000,000.00 relating to non-cash charges associated withgeneral intangibles, calculated in accordance with GAAP.”

 

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

 

4.                                       Thedefinition of Operating Cash Flow Coverage Ratio set forth in Section1.01 of Article I of the Credit Agreement is hereby amended and restated in itsentirety to read as follows:

 

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

 

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

 

“(i)                               investmentsin or advances to or for the benefit of, an Affiliate in an aggregate amountnot to exceed at any time $25,000,000.00.”

 

6.                                       Thedefinition of “Revolving Credit Termination Date” in Section 1.01 ofArticle I of the Credit Agreement is hereby amended and restated in itsentirety to read as follows:

 

“Revolving Credit Termination Date”means June 30, 2010 or such earlier date on which the Lender demands payment ofand accelerates the Revolving Loan as provided herein. On the Revolving CreditTermination Date, all Revolving Loans shall mature and all unpaid principal,accrued and unpaid interest and all other charges due hereunder and under anyother 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 andrestated in its entirety to read as follows:

 

“(c)  concurrently with any delivery of financialstatements under clause (a) or (b) above, a certificate of aFinancial Officer of the Borrower (i) verifying to the best of hisknowledge as to whether a material Default has occurred and, if a materialDefault has occurred, specifying the details thereof and any action taken orproposed to be taken with respect thereto, (ii) setting forth reasonablydetailed 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 hasoccurred since the date of the audited financial statements referred to in Section 3.04and, if any such change has occurred, specifying the effect of such change onthe financial statements accompanying such certificate;”

 

8.                                       Section5.09 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 AdministrativeAgent prompt written notice of the formation of any new Subsidiary.  With respect to all Domestic Subsidiaries,such notice shall be accompanied by a

 

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

 

9.                                       Section6.04 of the Credit Agreement entitled “Disposition of Property” ishereby 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)                                  theentering into of a certain sale/leaseback transaction with the City of AlbanyIndustrial Development Agency on or about January 1, 2005.

 

10.                                 Section6.12 of Article VI of the Credit Agreement entitled “Financial Covenants”is hereby amended to (i) delete subparagraph (c), and (ii) re-lettersubparagraph (d) as subparagraph (c).

 

11.                                 Asconsideration for the execution and delivery of this Amendment by theAdministrative Agent and the Lenders, upon the execution and delivery of thisAmendment by the Borrower, the Borrower shall pay to the Administrative Agent arenewal fee equal to $30,000.00 to be distributed to the lenders by theAdministrative Agent on a pro-rata basis based upon the respective RevolvingLoan Commitments.

 

12.                                 TheBorrower hereby represents and warrants as follows:

 

(i) Theexecution, delivery and performance of this Amendment has been authorized byall necessary corporate action on behalf of the Borrower and when executed anddelivered, this Amendment will constitute the legal, valid and binding obligationof the Borrower, enforceable in accordance with its terms, subject toapplicable bankruptcy, insolvency, reorganization, moratorium or other lawsaffecting creditors’ rights generally and subject to general principles ofequity, regardless of whether considered in a proceeding in equity or at law.

 

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

 

Allrepresentations and warranties set forth in Article III of the Credit Agreementare hereby restated and confirmed as of the date hereof.

 

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13.                                 Asmodified hereby, all of the terms, provisions and conditions of the CreditAgreement are hereby ratified and confirmed.

 

14.                                 ThisAmendment shall be governed by, and construed under, the laws of the State ofNew York.

 

15.                                 ThisAmendment may be executed in several counterparts, each of which shallconstitute an original but when taken together shall constitute but oneinstrument.

 

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IN WITNESSWHEREOF, the parties have caused this Amendment to be executed by their dulyauthorized 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:                                                        |   |   |
|        |                                                               |  |  |  |  |  |  |

 

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