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EXHIBIT 4.2
AMENDMENT NUMBER ONE
TO CREDIT AGREEMENT
This AMENDMENT NUMBER ONE TO CREDIT AGREEMENT, dated as of February
2, 2000 (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 have entered into that certain Credit
Agreement, dated as of February 3, 1999 (as amended, restated, supplemented, or
otherwise modified from time to time, the "Credit Agreement");
WHEREAS, Borrower has requested that the Credit Agreement be amended
to, among other things, modify the Maturity Date and adjust the minimum net
worth covenant;
WHEREAS, subject to the terms and conditions contained herein, Bank
is willing to so amend the Credit Agreement; and
WHEREAS, capitalized terms used herein but not otherwise defined
herein shall have the meanings ascribed thereto in the Credit Agreement.
NOW, THEREFORE, in consideration of the mutual covenants,
conditions, and provisions hereinafter set forth, the parties hereto agree as
follows:
ARTICLE 1
AMENDMENT
1.1 Amendment to Section 1.1 of the Credit Agreement. The definition of
"Maturity Date" contained in Section 1.1 of the Credit Agreement hereby is
amended by deleting the text "February 2, 2000" appearing in said definition and
inserting the text "January 31, 2001" in lieu thereof.
1.2 Amendment to Section 6.2 of the Credit Agreement. Section 6.2 of the
Credit Agreement hereby is amended by deleting the text "$580,000,000" appearing
in paragraph (b) of said Section; inserting the text "$750,000,000" in lieu
thereof; deleting the text "December 31, 1998" appearing in paragraph (b) of
said Section; and inserting the text "December 31, 1999" in lieu thereof.
1.3 Amendment and Restatement of Exhibit A to the Credit Agreement.
Exhibit A to the Credit Agreement hereby is amended and restated in the form of
Exhibit A attached hereto.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 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 Credit 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
3.1 The effectiveness of this Amendment is subject to the
fulfillment, to the satisfaction of Bank and its counsel, of each of the
following conditions:
3.1.1 Bank shall have received a duly executed and delivered
promissory note, substantially in the form of Exhibit A attached hereto, and
such promissory note shall be in full force and effect;
3.1.2 The representations and warranties set forth in this
Amendment, the Credit 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
3.1.3 No Default or 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
4.1 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
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manually executed counterpart shall not affect the validity, enforceability, or
binding effect of this Amendment.
4.2 No Other Amendment. The Credit 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 Credit Agreement, as in effect prior to the date
hereof. This Amendment shall be deemed a part of and hereby is incorporated in
the Credit Agreement.
4.3 Governing Law. This Amendment shall be governed by, and
construed and enforced in accordance with, the laws of the State of California.
4.4 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 Credit Agreement as amended by this Amendment.
4.5 References.
(a) Upon the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement," "hereunder," "herein," "hereof," or
words of like import referring to the Credit Agreement shall mean and refer to
the Credit Agreement as amended by this Amendment.
(b) Upon the effectiveness of this Amendment, each reference in
the Loan Documents to the "Credit Agreement," "thereunder," "therein,"
"thereof," or words of like import referring to the Credit Agreement shall mean
and refer to the Credit Agreement as amended by this Amendment.
(c) Upon the effectiveness of this Amendment, each reference in
the Credit Agreement to "Exhibit A" shall mean and refer to Exhibit A attached
hereto.
[Remainder of page intentionally left blank.]
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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: /s/ Xxxxx Xxxx
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Xxxxx Xxxx, Ph.D.
President, Chief Executive Officer
and Chairman
MELLON BANK, N.A.
a national banking association
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Vice President
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EXHIBIT A
TO CREDIT AGREEMENT
AMENDED AND RESTATED PROMISSORY NOTE
$30,000,000.00 February 2, 0000
Xxxxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, XXXXXX PHARMACEUTICALS, INC., a Nevada
corporation (the "Borrower"), promises to pay to the order of MELLON BANK, N.A.
(the "Bank") on the Maturity Date (as defined in the Credit Agreement referred
to below) the principal amount of Thirty Million Dollars ($30,000,000.00), or,
if less, the aggregate amount of Revolving Loans (as defined in the Credit
Agreement) made by the Bank to the Borrower pursuant to the Credit Agreement
outstanding on the Maturity Date. All unpaid amounts of principal and interest
shall be due and payable in full on January 31, 2001.
The Borrower also promises to pay interest on the unpaid principal
amount hereof from the date hereof until paid at the rates and at the times
which shall be determined in accordance with the provisions of the Credit
Agreement. Any interest not paid when due shall be compounded and shall
thereafter accrue interest at the rates and at the times which shall be
determined in accordance with the provisions of the Credit Agreement.
All payments of principal and interest in respect of this Note shall
be made in lawful money of the United States of America in same day funds at the
office of the Bank located at Three Mellon Bank Center, 23rd Floor/Loan
Administration, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 or at such other place as shall
be designated in writing for such purpose in accordance with the terms of the
Credit Agreement. Until notified of the transfer of this Note, the Borrower
shall be entitled to deem the Bank or such person who has been so identified by
the transferor in writing to the Borrower as the holder of this Note, as the
owner and holder of this Note. Each of the Bank and any subsequent holder of
this Note agrees that before disposing of this Note or any part hereof, it will
make a notation hereon of all principal payments previously made hereunder and
of the date to which interest hereon has been paid on the schedule attached
hereto, if any; provided, however, that the failure to make notation of any
payment made on this Note shall not limit or otherwise affect the obligation of
the Borrower hereunder with respect to payments of principal or interest on this
Note.
This Note is referred to in, and is entitled to the benefits of, the
Credit Agreement dated as of February 3, 1999 (as amended, the "Credit
Agreement") between Borrower and the Bank. The Credit Agreement, among other
things, (i) provides for the making of advances (the "Loans") by the Bank to the
Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Loan being evidenced by this Note, and
(ii) contains provisions for acceleration of the maturity hereof upon the
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happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified. This Note amends and restates in its entirety that certain
Promissory Note, dated as of February 3, 1999, made by Borrower to the order of
Bank, in the original principal amount of $30,000,000 on the Closing Date (as
defined in the Credit Agreement).
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this
Note or the Credit Agreement shall alter or impair the obligation of the
Borrower, which is absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the currency
herein prescribed.
The Borrower promises to pay all reasonable costs and expenses,
including reasonable attorneys' fees, incurred in the collection and enforcement
of this Note. The Borrower hereby consents to renewals and extensions of time at
or after the maturity hereof, without notice, and, subject to the Credit
Agreement, hereby waives diligence, presentment, protest, demand and notice of
every kind and, to the full extent permitted by law, the right to plead any
statute of limitations as a defense to any demand hereunder.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
and delivered by its duly authorized officer, as of the date and the place first
above-written.
XXXXXX PHARMACEUTICALS, INC.,
a Nevada corporation
By:
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Name: Xxxxx Xxxx, Ph.D.
Title: President, Chief Executive Officer
and Chairman
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SCHEDULE OF
TRANSACTIONS ON
NOTE
Amount of Amount of Interest Principal Notation Made
Loan Made Principal Paid Interest Paid Paid Through Balance By
