EXHBIT 4.9
Schedule "A"
[NATIONAL BANK LOGO]
February 18, 2000
Mr. Xxx X.X. Xxxxxx
Senior Vice President
Draxis Health Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxxx, XX
X0X 0X0
Dear Xx. Xxxxxx:
CREDIT AGREEMENT
National Bank of Canada ("NBC" or the "Bank") is pleased to establish in favour
of Draxis Pharma Inc. ("DPI") the following additional credit facilities (each a
"Facility") as set out below subject to the ensuing terms and conditions. These
facilities are additional to that established in the Credit Agreement dated June
9, 1998 between Draxis Pharma Inc. and National Bank of Canada except as amended
hereunder.
FACILITY C - OPERATING LOAN
CREDIT LIMIT The lesser at any time of:
(a) C$2,000,000
(b) 80% of acceptable assigned accounts receivable
under 90 days, less priority payables plus 20% of
inventory to a maximum of $500,000. Receivables
originating outside of Canada or the United States
are to be covered by EDC Insurance and/or Letters of
Credit acceptable to NBC. Acceptable receivables
that are EDC insured or backed by acceptable Letters
of Credit will be eligible for a 90% margin.
Acceptable accounts receivable are defined as trade
receivables excluding holdbacks receivable, contra
or inter-company accounts (other than inter-company
trade receivables), accounts of doubtful quality and
those aged 90 days or more. Priority payables are
defined as those amounts due or accrued that have
priority or super-priority over the Bank's security
position which include employee source deductions,
goods and services tax, pension benefits, vacation
pay, one pay period of accrued wages and any other
amounts that may rank ahead of the Bank.
TYPE & AVAILMENT & RATE A demand credit facility under which DPI may at its
option obtain on a revolving basis the following,
subject to the specified rate:
Canadian dollar Prime Rate loans: Prime +.75%,
calculated on an annual basis, payable monthly in
arrears.
PURPOSE For day to day business purposes.
REPAYMENT AND NBC may on demand require immediate payment of all
CANCELLATION amounts outstanding or accrued in connection with
this Facility. NBC may, at any time, for any reason
and without notice, cancel the undrawn portion of
this Facility.
The loan is to revolve in multiples of $50,000.
FACILITY D - BUSINESS MASTERCARD FACILITY
CREDIT LIMIT C$20,000
TYPE & AVAILMENT Corporate Business MasterCard facility subject to
the Customer signing the Bank's usual documentation.
GENERAL PROVISIONS
COVENANTS DPI is to be in compliance with the terms of the SGF
Sante investment agreement at all times.
Draxis Health Inc. will not take any actions which
would materially adversely affect the operations or
the financial position of the Borrower.
At your request we have amended the following terms
of the June 9, 1998 credit and confirm the
following:
1. The cost of leasehold improvements totaling
$2,723,695 which were incurred by Draxis Pharma
Inc. for the renovation of hot labs may be
transferred to Draximage Inc. Further in this
connection, repayment of $2,209,860 loans due
to Draxis Health Inc. is also approved.
2. Repayment of up to $5,500,000 in loans to
Draxis Health Inc. by Draxis Pharma Inc. is
approved in accordance with the terms of the
investment of $7,500,000 by SGF Sante, a
wholly-owned subsidiary of Societe generale de
financement du Quebec.
3. Repayment of up to $1,000,000 in loans to
Draxis Health Inc. by Draxis Pharma Inc. is
approved for purposes of refunding a
proportionate share of the ERP computer system
that was purchased last year. This repayment is
to be in accordance with the terms of the
investment of $7,500,000 by SGF Sante, a
wholly-owned subsidiary of Societe generale de
financement du Quebec.
4. The making of $400,000 in loans by DPI to DPI
management for purposes of subscription by
management in DPI shares, such loans not to
exceed 80% of the subscription price.
5. Change in the composition of DPI's Board of
Directors to include the appointment of a
representative of SGF Sante to DPI's Board of
Directors
6. The termination of employment of DPI's former
Plant Manager and the hiring of a replacement
employee.
7. The entering into of the Lease Agreement
between DPI and Draximage Inc.
8. The deletion of all references to Draxis Health
Inc. in Articles 13.1.1 to 13.1.8 of the June
9, 1998 term sheet. References to Draxis Health
Inc. in Articles 13.1.9 and 13.1.10 remain
unchanged.
2
Security
SECURITY The following additional security will be provided
to the Bank in support of the whole account:
First ranking general hypothec on movable property
of $2,300,000 on the universality of the Borrower's
inventory and accounts receivable in present and
future wherever the inventory and debtors of these
receivables are located.
REPORTING REQUIREMENTS The Company will provide to NBC:
1. Within 25 days of each calendar month-end, an
aged receivables summary and an inventory
declaration
2. Within 60 days of each quarter end, financial
statement statements for that quarter on an
unaudited basis for DPI alone
3. Within 90 days of each fiscal year end,
financial statements for that year end on an
audited basis for DPI alone
4. By the end of each fiscal year end, a business
plan/forecast for the next fiscal year
incorporating 12 month projections
SET UP FEE A set up fee of $10,000 will be payable to NBC upon
acceptance of this agreement.
NEXT SCHEDULED REVIEW June 30, 2000
DATE
CONDITIONS PRECEDENT TO The following documentation satisfactory to NBC is
FACILITY C to be provided prior to advance of funds:
1. All legal and security documents to be, in form
and substance, satisfactory to NBC and its
solicitors acting reasonably and with customary
input from the Borrower and its solicitors,
accompanied by the relevant legal opinions and
registered in the appropriate jurisdictions
2. An investment of $7,500,000 will be made into
Draxis Pharma Inc. by SGF Sante, a wholly owned
subsidiary of Societe generale de financement
du Quebec.
3. Management subscription of $361,111 as per
the terms of the SGF Sante investment
agreement.
All other terms and conditions of the credit as outlined in our June 9, 1998
agreement remain unchanged and in full force and effect.
If these conditions are acceptable to you, please indicate your acceptance
thereof by signing and returning a copy of this letter to the Bank before
February 28, 2000 after which time this offer is null and void.
Yours truly,
/s/ X.X. Xxxxxx
X.X. Xxxxxx
Senior Manager
Knowledge Based Industries
3
Acknowledged and accepted this 18th day of February 2000
DRAXIS PHARMA INC.
Per: /s/ J.A.H. XXXXXX
----------------------------
Name & Title J.A.H. XXXXXX
S.V.P. FINANCE & C.F.O.
Per:
----------------------------
Name & Title
4
[NATIONAL
BANK
OF CANADA LETTERHEAD]
February 16, 2000
Mr. Xxx X.X. Xxxxxx
Senior Vice President
Draxis Health Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxxx, XX
X0X 0X0
Dear Xx. Xxxxxx:
RE: AMENDMENT TO CREDIT AGREEMENT DATED JUNE 28, 1999 AND OCTOBER 26, 1999
AMENDING AGREEMENT
We refer to our Credit Agreement dated June 28, 1999 and amending agreement
dated October 26, 1999 in favour of Draxis Health Inc.
At your request we have amended the credit and confirm the following:
The guarantee from Draxis Pharma Inc. in favour of Draxis Health Inc. is
hereby released as part of the security requirements.
All other terms and conditions of the credit as outlined in our June 28
agreement and October 26, 1999 amending agreement remain unchanged and in
full force and effect.
If these conditions are acceptable to you, please indicate your acceptance
thereof by signing and returning a copy of this letter to the Bank before
February 28, 2000 after which time this offer is null and void.
Yours truly,
/s/ X.X. Xxxxxx
X.X. Xxxxxx
Senior Manager
Knowledge Based Industries
Acknowledged and accepted this 18th day of February 2000
DRAXIS HEALTH INC.
Per: /s/ J.A.H. Xxxxxx
---------------------------------
Name & Title J.A.H. Xxxxxx
S.V.P. FINANCE & C.F.O.
Per:
----------------------------------
Name & Title
GENERAL HYPOTHEC ON
MOVABLE PROPERTY
------------------------------------------------------------------------------
1. HYPOTHEC
1.1 For good and valid consideration, the undersigned (the "Customer")
hypothecates in favour of the National Bank of Canada (the "Bank") the
property referred to in paragraph 1.3 hereof (the "mortgaged
property"). This hypothec is granted for the sum of TWO MILLION THREE
HUNDRED THOUSAND DOLLARS ($2,300,000.00) with interest at the rate of
25% per annum from the date hereof.
1.2 The terms "mortgaged property" also include the following property to
the extent that it is not already included in the description in
paragraph 1.3. The following property is therefore also charged by the
hypothec created hereunder:
a) the proceeds of any sale, lease or other disposition of the
property referred to in paragraph 1.3, any debt resulting from
the sale, lease or other disposition of this property, as well as
any property acquired to replace same;
b) any insurance or expropriation proceeds payable in respect of
the mortgaged property;
c) the principal and the income of the mortgaged property as well
as any right attached to the mortgaged property;
d) where the property described in paragraph 1.3 includes shares or
securities, all shares and securities issued in replacement of
these shares or securities;
e) all deeds, documents, registers, invoices and books of accounts
evidencing the mortgaged property or relating thereto.
1.3 Description of property:
All the Customer's movable property, corporeal and incorporeal,
present and future, wherever they may be.
2. OBLIGATIONS SECURED
2.1 The hypothec is granted to secure all obligations of the Customer to
the Bank resulting from the terms of the Bank's offer of financing
dated the eighteenth day of February, Two Thousand (February 18, 2000)
and from all increase of the credit described therein including,
without limitation, any contract, document or agreement related
thereto, as well as any amendment, renewal or replacement thereof
(collectively the "Offer").
-2-
2.2 This hypothec is also granted to secure all other obligations of the
Customer to the Bank, present and future, direct and indirect.
3. DECLARATIONS
The Debtor declares, confirms and reaffirms that all the representations,
obligations and warranties made in the Offer are still true and exact.
4. COVENANTS
4.1 The Customer shall inform the Bank without delay of any change to
its name.
4.2 The Customer shall provide the Bank with a copy of each policy and,
at least thirty (30) days prior to the expiration or cancellation of a
policy, a copy of the renewal or replacement thereof.
4.3 The Customer shall do all things and sign all documents necessary to
preserve its rights in the mortgaged property and for the hypothec
constituted hereunder to have full effect and be perfected and
constantly enforceable against third parties in all jurisdictions where
the mortgaged property may be situated or used.
4.4 The Customer shall comply, in all material respects, with all laws
and regulations applicable to the operation of its business and to the
mortgaged property.
4.5 The Customer shall not dispose of mortgaged property having a value
in excess of 100,000.00$ per transaction or, in the aggregate in any
calendar year of this agreement in excess of 300,000.00$, nor lease
same unless the Bank consents thereto in writing. However, if not in
default hereunder, the Customer may sell or lease its inventory in the
ordinary course of its business.
4.6 The Customer shall not change the use, destination or nature of the
mortgaged property nor remove same from its present location unless the
Bank consents thereto in writing.
4.7 Where the mortgaged property includes intellectual property rights,
the Customer shall furnish a description of it to the Bank and shall
inform the Bank without delay of all new acquisition or use of said
rights. The Customer shall register and renew all registration
necessary or useful for the protection of its intellectual property
rights and shall also advise the Bank of all claims or litigations
concerning them.
5. RIGHTS OF THE BANK
5.1 The Bank may inspect or have the mortgaged property appraised from
time to time at the Customer's expense and, for that purpose, shall be
permitted access to the premises where the mortgaged property is
located and to the Customer's places of business. The Customer shall
also allow the Bank to examine and obtain copies of all books of
accounts and documents relating to the mortgaged property.
-3-
5.2 The Bank may, without being bound to do so, perform any or all of
the obligations of the Customer hereunder.
5.3 The Customer may collect all debts forming part of the mortgaged
property until the Bank withdraws its authorization to the Customer
to do so. If the Bank withdraws its authorization from the Customer to
collect the debts forming part of the mortgaged property, the Bank may
collect such debts and shall be entitled to a reasonable commission
which it may deduct from any amount collected.
5.4 When the mortgaged property includes shares or securities, the Bank
may, without being bound to do so, cause itself to be registered as the
holder of these shares or securities and exercise any right attached
thereto, including any right to vote and any right of conversion or
redemption.
5.5 If the Bank has possession of the mortgaged property, it shall have
no obligation to maintain the use for which the mortgaged property is
normally intended nor to make it productive nor to continue its use or
operation.
5.6 The Bank may, without being bound to do so, sell the mortgaged
property in its possession where it believes in good faith that the
mortgaged property is likely to perish, decrease in value or
depreciate.
5.7 The Customer constitutes and appoints the Bank as its irrevocable
attorney, with full power of substitution, in order to do any act and
to sign any document necessary or useful to the exercise of the rights
conferred on the Bank hereunder.
5.8 The rights conferred on the Bank under this article 5 may be
exercised by the Bank irrespective of whether the Customer is or is not
in default hereunder.
6. DEFAULT AND RECOURSES
6.1 The Customer shall be in default in each and everyone of the
following events:
a) if any or all of the obligations secured under this agreement
are not paid or performed when due.
b) if there is a default under the Offer.
6.2 Upon the Customer's default, the Bank may terminate any obligation
it may have had to grant credit or make advances to the Customer and
declare eligible all obligations of the Customer which are not yet due.
Upon such default, the Bank may also exercise all recourses available
to it under applicable law, including the rights resulting from its
hypothec.
6.3 In order to realize on its hypothec, the Bank may use the premises
where the mortgaged property and other property of the Customer are
situated at the expense of the Customer. Where the mortgaged property
includes debts, the Bank may compromise or transact with the debtors of
these debts and may grant releases and discharges in respect of same.
Where the mortgaged property includes inventory, the Bank may complete
the manufacture of such inventory and do all things necessary or useful
to its sale.
-4-
7. ADDITIONAL HYPOTHEC
7.1 To secure the payment of interest not already secured by the
hypothec created in article 1 and to further secure the performance
of its obligations hereunder, the Customer hypothecates all of the
property described in article 1 for an additional amount equal to
twenty percent (20%) of the principal amount of the hypothec created
in article 1.
8. GENERAL PROVISIONS
8.1 The hypothec created hereby is in addition to and not in
substitution for any other hypothec or security held by the Bank.
8.2 This hypothec is a continuing security and shall subsist
notwithstanding the payment from time to time, in whole or in part, of
the obligations secured hereunder.
8.3 In each case provided in paragraph 6.1, the Customer shall be in
default by the mere lapse of time, without the necessity of any notice
or demand.
8.4 If more than one person is referred to as "Customer", such persons
shall be solidarily liable for all obligations stipulated herein.
8.5 Any sum collected by the Bank in the exercise of its rights may be
held by the Bank as mortgaged property, or may be applied to the
payment of the obligations secured hereunder, whether or not yet due.
The Bank shall have discretion as to how any such collected sum shall
be applied.
8.6 The exercise of the Bank of any of its rights shall not preclude the
Bank from exercising any other right resulting from the present
agreement. The failure of or forbearance by the Bank to exercise any of
its rights shall not constitute a renunciation to the later exercise of
such right. The Bank may exercise its rights resulting from this
agreement without being required to exercise its other rights against
the Customer or against any other person liable for the payment of the
obligations secured hereunder or to realize on any other security held
for the payment of such obligations.
8.7 The Bank shall only be required to exercise reasonable care in the
exercise of its rights and the performance of its obligations.
Moreover, it shall only be liable for its intentional fault or gross
negligence.
8.8 The Bank may delegate to another person the exercise of its rights
or the performance of its obligations resulting from the present
agreement. In such a case the Bank is authorized to provide that person
with any information it may have concerning the Customer or the
mortgaged property.
8.9 This agreement shall be binding upon the Customer and enure to the
benefit of the Bank and any successor thereof by way of amalgamation or
otherwise.
8.10 Any notice to the Customer may be given at the address indicated
below or any other address communicated in writing by the Customer to
the Bank.
-5-
8.11 Should any clause hereof be invalid or inoperative, the other
clauses of the present agreement shall remain fully operative.
8.12 This agreement shall be governed and interpreted by the law in force
in the Province of Quebec. It must also be interpreted so that
mortgaged property located in another jurisdiction is affected by a
valid security under the applicable law of this other jurisdiction.
8.13 The parties hereto have expressly agreed that this agreement and all
deeds, documents or notices relating thereto be executed in English/
Les parties aux presentes ont expressement convenu que cet acte et tout
autre actc, document ou avis y afferent soient rediges anglais.
SIGNED AND DELIVERED at Montreal, Province of Quebec, this 4th day of April,
2000.
DRAXIS PHARMA INC C.S.
/s/ Xxxx Xxxxxxxxx Per: /s/ Xxxxx X. Xxxxxx
---------------------------------- -----------------------------------
Witness: Xxxx Xxxxxxxxx Name: XXXXX X. XXXXXX
361 Xxxxxxxx Dr. Title: Chief Financial Officer
Etobicoke, ON M9C 1S1
Address of Customer
(for notice and correspondence purposes):
00000 Xxxxx Xxxxxx Highway
Kirkland (Quebec)
H9H 4J4
Address of head office
or domicile of Customer
(if different from above):
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx (Xxxxxx)
X0X 0X0
