AMENDMENT NO. 5 TO CREDIT AGREEMENT
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AMENDMENT NO. 5 TO AMENDED AND RESTATED CREDIT AGREEMENT (this "Amendment")
is effective as of November 30, 2002, by and among XXXXXX, INC., a Delaware
corporation (the "Company"), XXXXXX TECHNICAL SERVICES, INC., a Delaware
corporation, BOTANICALS INTERNATIONAL EXTRACTS, INC., a Delaware corporation,
and ZETAPHARM, INC., a New York corporation, (collectively, the "Borrowers"),
and XXXXX FARGO BANK, N.A. (the "Lender").
RECITALS
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WHEREAS, the Borrowers are currently indebted to the Lender pursuant to the
terms and conditions of that certain Amended and Restated Credit Agreement dated
as of December 7, 2001 (the "Current Agreement"; as amended hereby and from time
to time, the "Agreement"); and
WHEREAS, the Lender and the Borrowers have agreed to certain changes in the
terms and conditions set forth in the Current Agreement and have agreed to amend
the Current Agreement to reflect said changes.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree that the Current
Agreement shall be amended as follows:
A. Amendments.
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1. In Section 1.01 of the Current Agreement, the defined term "Commitment"
is amended by replacing the dollar amount "$9,000,000" with the dollar amount
"$8,700,000".
2. In Section 1.01 of the Current Agreement, the defined term "Revolving
Credit Commitment" is amended by replacing the dollar amount "$9,000,000" with
the dollar amount "$8,700,000".
3. In Section 1.01 of the Current Agreement, the defined term "Revolving
Credit Facility Availability Period" is amended by replacing the phrase
"November 30, 2002" with the phrase "December 31, 2002".
4. In Section 1.01 of the Current Agreement, the definition following the
defined term "Maturity Date" shall be deleted in full and replaced with the
following:
"in the case of the Revolving Loan, means December 31, 2002, and in the
case of the Term Loan, means September 10, 2002."
5. Section 2.06 of the Current Agreement is amended by replacing the phrase
"November 30, 2002" with the phrase "December 31, 2002".
B. Effectiveness; Conditions. Borrowers shall have (i) delivered to Lender
a duly executed Revolving Credit Note substantially in the form attached hereto
as Exhibit A (the "Revolving Credit Note"), which Revolving Credit Note will
supersede and replace the existing Revolving Credit Note, dated October 31, 2002
and (ii) paid the Lender a fee of $10,000 in connection with the negotiating and
execution and effectiveness of this Amendment.
C. Covenants. Borrowers hereby (i) covenant to pay or reimburse the Lender
for all of the Lender's costs and expenses, including fees and disbursements of
outside counsel and allocated in-house counsel, in connection with, or related
to, the negotiating and execution and effectiveness of this Amendment; and (ii)
acknowledge and agree that a failure to immediately do so will constitute an
Event of Default under the Agreement without further notice or other act of the
Lender.
D. General.
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1. Except as specifically provided herein, all terms and conditions of the
Agreement remain in full force and effect, without waiver or modification.
Borrowers acknowledge that except as specifically provided in this Amendment,
nothing in this Amendment shall affect Borrowers' obligations under the
Agreement, which obligations remain valid, binding and enforceable, or shall
constitute a waiver by Lender of any of Lender's rights or remedies, now or at
any time in the future, with respect to any requirement under the Agreement or
with respect to an Event of Default or Default, occurring now or at any time in
the future.
2. All terms defined in the Agreement shall have the same meaning when used
in this Amendment. This Amendment and the Agreement shall be read together as
one document. This Amendment 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
document.
3. The Borrowers hereby remake all representations and warranties contained
in the Agreement and reaffirm all covenants set forth therein. The Borrowers
further certify that as of the date of this Amendment, giving effect to the
provisions hereof, there exists no Event of Default as defined in the Agreement,
nor any condition, act or event which with the giving of notice or the passage
of time or both would constitute any such Event of Default.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date and year first written above.
XXXXXX, INC. XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Art Brokx
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Name: Xxxxxx X. Xxxxxx Name: Art Brokx
Title: Chief Financial Officer Title: Vice President
XXXXXX TECHNICAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Secretary and Treasurer
BOTANICALS INTERNATIONAL
EXTRACTS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
ZETAPHARM, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Secretary and Treasurer
EXHIBIT A
REVOLVING CREDIT NOTE
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