EXHIBIT 4.2(A)
AMENDMENT NUMBER ONE
TO CREDIT AGREEMENT
This AMENDMENT NUMBER ONE TO CREDIT AGREEMENT, dated as of
January 23, 1998 (this "Amendment"), is entered into between MELLON BANK, N.A.,
a national banking association ("Bank"), and XXXXXX PHARMACEUTICALS, INC., a
Nevada corporation ("Borrower").
WHEREAS, Bank and Borrower entered into that certain Credit
Agreement, dated as of December 19, 1997 (the "Loan Agreement");
WHEREAS, Borrower has requested that the Loan Agreement be
amended to modify the loan facilities set forth in the Loan Agreement; and
WHEREAS, subject to the terms and conditions contained herein,
Bank is willing to so amend the Loan Agreement.
NOW, THEREFORE, in consideration of the mutual covenants,
conditions, and provisions hereinafter set forth, the parties hereto agree as
follows:
ARTICLE 1
AMENDMENTS
1. The definition of Revolving Commitment contained in Section
1.1 of the Loan Agreement hereby is deleted in its entirety and the following
hereby is substituted in lieu thereof:
"REVOLVING COMMITMENT": The amount of $75,000,000, as such amount may
be reduced pursuant to Section 2.1(d).
2. AMENDMENT OF SECTION 6.2(D) OF THE LOAN AGREEMENT. Section
6.2(d) of the Loan Agreement hereby is deleted in its entirety and the following
is substituted in lieu thereof:
"(d) DEBT. Create, incur, assume or permit to exist, or permit
any Subsidiary to create , incur, assume or permit to exist, any direct or
contingent indebtedness (including undrawn committed lines of credit),
liabilities or lease obligations (other than those to Bank), or become liable
for the debts of others without Bank's written consent, except for (i) acquiring
goods, supplies or merchandise on normal trade credit, (ii) endorsing negotiable
instruments received in the usual course of business, (iii) obtaining surety
bonds in the usual course of business, (iv) the indebtedness of Borrower set
forth on SCHEDULE 6.2(D)(IV) attached hereto, (v) additional indebtedness in an
aggregate amount not to exceed $10,000,000 at any one time
outstanding, (vi) unsecured indebtedness owing to BOA plus undrawn committed
lines of credit provided by BOA to Borrower in an aggregate amount not to exceed
$80,000,000 at any one time; PROVIDED, HOWEVER, that prior to increasing
Borrower's revolving credit facility with BOA, Borrower shall obtain the prior
written consent of Bank to any proposed amendment, such consent of Bank not to
be unreasonably withheld, delayed, or conditioned, (vii) unsecured long term
indebtedness in an aggregate amount not to exceed $175,000,000, so long as the
proceeds are used to repay the credit facilities provided by Bank and BOA, and
(viii) guarantees by Borrower of the obligations of its Subsidiaries in a
principal amount not in excess of $2,500,000."
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants to Bank that (a) the
execution, delivery, and performance of this Amendment are within its corporate
powers, have been duly authorized by all necessary corporate action, and (b)
this Amendment and the Loan Agreement, as amended by this Amendment, constitute
Borrower's legal, valid, and binding obligation, enforceable against Borrower in
accordance with its terms, except in each case as such enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or
other similar laws of general application and equitable principles relating to
or affecting creditors' rights.
ARTICLE 3
CONDITIONS PRECEDENT
The effectiveness of this Amendment is subject to the
fulfillment, to the satisfaction of Bank and its counsel, of each of the
following conditions:
4.1 Bank shall have received a duly executed Guaranty
Reaffirmation Agreement from each of the Guarantors and such agreement shall be
in full force and effect;
4.2 Bank shall have received, in immediately available funds,
an amendment fee of $12,500 from Borrower;
4.3 Bank shall have received a new Revolving Note in the face
amount of $75,000,000, in replacement of the Revolving Note previously issued by
Borrower to Bank.
4.4 The representations and warranties set forth in this
Amendment, the Loan Agreement as amended by this Amendment, and the other Loan
Documents shall be true and correct in all material respects on and as of the
date hereof, as though made on such date (except to the extent that such
representations and warranties relate solely to an earlier date); and
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4.5 No Event of Default or event which with the giving of
notice or passage of time would constitute an Event of Default shall have
occurred and be continuing on the date hereof, nor shall result from the
consummation of the transactions contemplated herein.
ARTICLE 4
MISCELLANEOUS
6.1 EXECUTION IN COUNTERPARTS. This Amendment may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed an original. All of such counterparts shall constitute but one
and the same instrument. Delivery of an executed counterpart of the signature
page of this Amendment by telecopier shall be equally effective as delivery of a
manually executed counterpart. Any party delivering an executed counterpart of
the signature page of this Amendment by telecopier thereafter also shall deliver
promptly a manually executed counterpart, but the failure to deliver such
manually executed counterpart shall not affect the validity, enforceability, or
binding effect of this Amendment.
6.2 NO OTHER AMENDMENT. The Loan Agreement, as amended hereby,
shall be and remain in full force and effect in accordance with its respective
terms and hereby is ratified and confirmed in all respects. The execution,
delivery, and performance of this Amendment shall not operate as a waiver of or,
except as expressly set forth herein, as an amendment, of any right, power, or
remedy of Bank under the Loan Agreement, as in effect prior to the date hereof.
This Amendment shall be deemed a part of and hereby is incorporated in the Loan
Agreement.
6.3 GOVERNING LAW. This Amendment shall be governed by, and
construed and enforced in accordance with, the laws of the State of California.
6.4 FURTHER ASSURANCES. Borrower shall execute and deliver all
agreements, documents, and instruments, in form and substance reasonably
satisfactory to Bank, and take all actions as Bank may reasonably request from
time to time, to fully consummate the transactions contemplated under this
Amendment and the Loan Agreement as amended by this Amendment.
6.5 REFERENCES.
(a) Upon the effectiveness of this Amendment, each
reference in the Loan Agreement to "this Agreement," "hereunder," "herein,"
"hereof," or words of like import referring to the Loan Agreement shall mean and
refer to the Loan Agreement as amended by this Amendment.
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(b) Upon the effectiveness of this Amendment, each
reference in the Loan Documents to the "Loan Agreement," "thereunder,"
"therein," "thereof," or words of like import referring to the Loan Agreement
shall mean and refer to the Loan Agreement as amended by this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered as of the date first set forth above.
XXXXXX PHARMACEUTICALS, INC.
a Nevada corporation
By:__________________________________
Xxxxx Xxxx, Ph.D.
Chief Executive Officer and
Chairman
MELLON BANK, N.A.
a national banking association
By:__________________________________
Xxxxx X. Xxxxx
Vice President
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GUARANTY REAFFIRMATION AGREEMENT
Dated as of January 23, 1998
The undersigned, each as Guarantor under the Guaranty (as such terms
are defined in and under the Credit Agreement, dated December 19, 1997, as
amended by that certain Amendment Number One to Credit Agreement dated as of
even date herewith, between Xxxxxx Pharmaceuticals, Inc., a Nevada corporation,
and Mellon Bank, N.A., a national banking association (hereinafter "Amendment"),
hereby consents and agrees to said Amendment and hereby confirms and agrees that
the Guaranty is, and shall continue to be, in full force and effect and is
hereby ratified and confirmed in all respects.
XXXXXX LABORATORIES, INC.,
a Nevada corporation
By _____________________________
Xxxxx Xxxx, Ph.D.
President
CIRCA PHARMACEUTICALS, INC.,
a New York corporation
By _____________________________
Xxxxx Xxxx, Ph.D.
Chairman
Title: _________________________
OCLASSEN PHARMACEUTICALS, INC.,
a Delaware corporation
By _____________________________
Xxxxx Xxxx, Ph.D.
Chairman
ROYCE LABORATORIES, INC.,
a Florida corporation
By _____________________________
Xxxxx Xxxx, Ph.D.
Chairman
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