Supplement No.1, dated as of December 5, 2008, to the Pledge and Security Agreement dated as of February 25, 2008 among Axcan Intermediate Holdings Inc., as the Parent Borrower, Axcan US Partnership 1 LP, as the Co-Borrower, Axcan MidCo Inc., as Holdings, certain other Subsidiaries of Axcan Intermediate Holdings Inc. from time to time party thereto and Bank of America, N.A., as Administrative Agent for the Secured Parties (as defined therein)

SUPPLEMENT NO. 1, dated as of December 5, 2008, to the Pledge and Security Agreement dated as of February 25, 2008 among AXCAN MIDCO INC. (“Holdings”), AXCAN INTERMEDIATE HOLDINGS INC. (the “Parent Borrower”), AXCAN US PARTNERSHIP 1 LP (the “Co-Borrower”), certain other Subsidiaries of the Parent Borrower from time to time party thereto and BANK OF AMERICA, N.A., as administrative agent for the Secured Parties (as defined below).

 

A.           Reference is made to (i) the Credit Agreement dated as of February 25, 2008 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Parent Borrower, the Co-Borrower, Holdings, Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and each lender from time to time party thereto and (ii) the Senior Secured Notes Indenture.

 

B.           Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement and the U.S. Security Agreement referred to therein.

 

C.           The Grantors have entered into the U.S. Security Agreement in order to induce (w) the Lenders to make Loans and the L/C Issuers to issue Letters of Credit, (x) the Hedge Banks to enter into and/or maintain Secured Hedge Agreements, (y) the Cash Management Banks to provide Cash Management Services and (z) the purchasers of the Senior Secured Notes to purchase such notes from the Parent Borrower.  Section 6.13 of the U.S. Security Agreement provides that additional Restricted Subsidiaries of the Parent Borrower may become Grantors under the U.S. Security Agreement by execution and delivery of an instrument in the form of this Supplement.  The undersigned Restricted Subsidiary (the “New Subsidiary”) is executing this Supplement in accordance with the requirements of the Credit Agreement to become a Grantor under the U.S. Security Agreement in order to induce (x) the Lenders to make additional Loans and the L/C Issuers to issue additional Letters of Credit, (y) the Hedge Banks to enter into and/or maintain Secured Hedge Agreements and (z) the Cash Management Banks to provide Cash Management Services and as consideration for (x) Loans previously made, Letters of Credit previously issued and notes previously purchased, (y) Secured Hedge Agreements previously entered into and/or maintained and (z) Cash Management Services previously provided.

 

Accordingly, the Administrative Agent and the New Subsidiary agree as follows:

 

SECTION 1.  In accordance with Section 6.13 of the U.S. Security Agreement, the New Subsidiary by its signature below becomes a Grantor under the U.S. Security Agreement with the same force and effect as if originally named therein as a Grantor and the New Subsidiary hereby (a) agrees to all the terms and provisions of the U.S. Security Agreement applicable to it as a Grantor thereunder

 

and (b) represents and warrants that the representations and warranties made by it as a Grantor thereunder are true and correct on and as of the date hereof.  In furtherance of the foregoing, the New Subsidiary, as security for the payment and performance in full of its Secured Obligations does hereby create and grant to the Administrative Agent, its successors and assigns, for the benefit of the Secured Parties, their successors and assigns, a security interest in and lien on all of the New Subsidiary’s right, title and interest in and to the Collateral (as defined in the U.S. Security Agreement) of the New Subsidiary.  Each reference to a “Grantor” in the U.S. Security Agreement shall be deemed to include the New Subsidiary.  The U.S. Security Agreement is hereby incorporated herein by reference.

 

SECTION 2.  The New Subsidiary represents and warrants to the Administrative Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity.

 

SECTION 3.  This Supplement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Supplement shall become effective when the Administrative Agent shall have received a counterpart of this Supplement that bears the signature of the New Subsidiary, and the Administrative Agent has executed a counterpart hereof.  Delivery of an executed signature page to this Supplement by facsimile transmission or other electronic communication shall be as effective as delivery of a manually signed counterpart of this Supplement.

 

SECTION 4.  As of the date hereof, the New Subsidiary hereby represents and warrants that (a) set forth on Schedule I attached hereto is a true and correct schedule of the location of any and all Collateral of the New Subsidiary and (b) set forth under its signature hereto is the true and correct legal name of the New Subsidiary, its jurisdiction of formation and the location of its chief executive office.  Schedule I shall be incorporated into, and after the date hereof be deemed part of, the Perfection Certificate.

 

SECTION 5.  Except as expressly supplemented hereby, the U.S. Security Agreement shall remain in full force and effect.

 

 

SECTION 7.  If any provision of this Supplement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Supplement and the other Loan Documents shall not be affected

 

or impaired thereby.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

SECTION 8.  All communications and notices hereunder shall be in writing and given as provided in Section 6.01 of the U.S. Security Agreement.

 

SECTION 9.  The New Subsidiary agrees to reimburse the Administrative Agent for its reasonable out-of-pocket expenses in connection with the execution and delivery of this Supplement, including the reasonable fees, other charges and disbursements of counsel for the Administrative Agent.

 

 

 

IN WITNESS WHEREOF, the New Subsidiary and the Administrative Agent have duly executed this Supplement to the U.S. Security Agreement as of the day and year first above written.

 

 

 

Schedule I

 

 

		LOCATION OF COLLATERAL
Description			Location
NONE.
		EQUITY INTERESTS
Issuer	Number of Certificate	Registered Owner	Number and Class of Equity Interests	Percentage of Equity Interests
		DEBT SECURITIES
Issuer	Number of Certificate	Registered Owner	Number and Class of Equity Interests	Percentage of Equity Interests