Biologics Limited and Avecia Biologics Inc. to substitute Pharmathene UK instead
of Avecia Biologics Limited and Avecia Biologics Inc. (prior owners of the
vaccines business) and satisfaction of all conditions to Pharmathene UK
receiving back payments and future payments, and the actual receipt of all past
due contractual payments."
3
"Pharmathene UK" means Pharmathene UK Limited, a business entity formed under
the laws of the United Kingdom and a wholly owned Subsidiary of Borrower."
"Subordination Agreements" means collectively those certain Subordination
Agreements dated as of the Effective Date between Agent and certain creditors of
Borrower."
4
THE LOAN AGREEMENT SHALL BE AMENDED
BY DELETING THE FOLLOWING DEFINITION OF "PERMITTED INVESTMENT" APPEARING IN
SECTION 13.1 THEREOF:
"Permitted Investments" are:
(a)
Investments shown on the Perfection
Certificate and existing on the Effective Date;
(b)
Permitted Acquisitions;
(c)
Permitted Joint Ventures; and
(d)
Cash Equivalents."
and inserting in lieu thereof the following:
"Permitted Investments" are:
(a)
Investments shown on the Perfection
Certificate and existing on the Effective Date;
(b)
Permitted Acquisitions;
(c)
Permitted Joint Ventures;
(d)
Cash Equivalents; and
(E)
(I) INVESTMENTS OF SUBSIDIARIES IN OR TO
OTHER SUBSIDIARIES OR BORROWER AND (II) INVESTMENTS BY BORROWER IN PHARMATHENE
UK NOT TO EXCEED FOUR HUNDRED THOUSAND DOLLARS ($400,000) IN THE AGGREGATE PER
CALENDAR MONTH."
B.
CONSENT.
1
NOTWITHSTANDING THE TERMS OF THE
FIRST CONSENT, LENDERS HEREBY ACKNOWLEDGE, CONFIRM, AND AGREE THAT PHARMATHENE
UK IS NOT REQUIRED TO BECOME A CO-BORROWER OR A SECURED GUARANTOR UNDER THE LOAN
AGREEMENT, NOR WILL LENDERS OBTAIN A FIRST PERFECTED LIEN IN ALL OF PHARMATHENE
UK'S ASSETS, PROVIDED THAT BORROWER SHALL; (I) EXECUTE AND DELIVER A PLEDGE
AGREEMENT, IN FORM AND SUBSTANCE ACCEPTABLE LENDERS, GRANTING A FIRST PERFECTED
SECURITY INTEREST (FIXED CHARGE) IN SIXTY-FIVE PERCENT (65%) OF BORROWER'S STOCK
OF PHARMATHENE UK CONTEMPORANEOUSLY WITH THE EXECUTION OF THIS LOAN MODIFICATION
AGREEMENT, AND (II) COMPLY WITH THE LOAN AGREEMENT AS AMENDED BY THIS LOAN
MODIFICATION AGREEMENT.
4
C.
WAIVER AND BORROWER'S REPRESENTATIONS.
1
LENDERS HEREBY WAIVE BORROWER'S
EXISTING DEFAULTS UNDER THE LOAN AGREEMENT BY VIRTUE OF BORROWER'S FAILURE TO
TIMELY COMPLY WITH THE NEGATIVE COVENANT SET FORTH IN SECTION 7.7 OF THE LOAN
AGREEMENT (DISTRIBUTIONS; INVESTMENTS), AS OF THE MONTHS ENDING AUGUST 31, 2008,
THROUGH AND INCLUDING DECEMBER 31, 2008.
LENDERS' WAIVER OF BORROWER'S
COMPLIANCE OF SAID NEGATIVE COVENANT SHALL APPLY ONLY TO THE FOREGOING SPECIFIC
TIME PERIODS.
LENDERS HEREBY CONSENT TO THE MERGER OF NEW BORROWER WITH
EXISTING BORROWER (WITH NEW BORROWER AS SUCCESSOR BY SAID MERGER), WHICH MERGER
WAS CONSUMMATED ON FEBRUARY 27, 2009.
IN CONSIDERATION FOR THE FORGOING WAIVER AND IN ORDER TO INDUCE LENDERS TO
PROVIDE SUCH WAIVER, BORROWER REPRESENTS THAT (I) BORROWER MADE THE FOLLOWING
INVESTMENTS IN PHARMATHENE UK; (A) ONE MILLION FOUR HUNDRED TWENTY NINE THOUSAND
THREE HUNDRED SIXTEEN DOLLARS ($1,429,316) DURING THE MONTH ENDED
AUGUST 31, 2008, (B) THREE HUNDRED THIRTY SEVEN THOUSAND SIX DOLLARS ($337,006)
DURING THE MONTH ENDED SEPTEMBER 30, 2008, (C) SEVEN HUNDRED FORTY NINE THOUSAND
NINETY FIVE DOLLARS ($749,095) DURING THE MONTH ENDED OCTOBER 31, 2008, (D)