December 8, 2006
Exhibit 10.1
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December 8, 2006
VIA OVERNIGHT COURIER AND
FACSIMILE – 000-000-0000
Advancis Pharmaceutical Corporation
00000 Xxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Mr. Xxxxxx Xxx
Re: Xxxxxxx Xxxxx Capital – Advancis |
Gentlemen:
Reference is made to that certain Credit and Security Agreement dated June 30, 2006 (as amended, modified, restated or supplemented from time to time, the “Credit Agreement”) between ADVANCIS PHARMACEUTICAL CORPORATION (“Borrower”), and XXXXXXX XXXXX CAPITAL, a division of Xxxxxxx Xxxxx Business Financial Services Inc., individually as a lender and as agent (“Xxxxxxx Xxxxx”). All capitalized terms used herein and not defined herein shall have the meaning ascribed to such terms in the Credit Agreement.
Borrower has requested that Xxxxxxx Xxxxx agree that, in respect of the fiscal quarters ending December 31, 2006 and March 31, 2007, the covenants in Section 6.1 of the Credit Agreement (Revenue/Invoiced Products) shall not be applicable to the Borrowers (it being understood that any failure to comply with such covenants for such quarters shall not cause or result in any Default or Event of Default) (the “Consent Item”).
Borrower represents and warrants to Xxxxxxx Xxxxx that: (a) after giving effect to this Letter Agreement, no Default or Event of Default has occurred and is continuing, and (b) all of the terms and conditions of the Credit Agreement and other Financing Documents are hereby ratified and confirmed and continue unchanged and in full force and effect. Borrower hereby confirms and agrees that all security interests and liens granted to Xxxxxxx Xxxxx on behalf of Lenders continue to be perfected, first priority liens and remain in full force and effect and shall continue to secure the Obligations. All Collateral remains free and clear of any liens other than liens in favor of Xxxxxxx Xxxxx or otherwise permitted under the Credit Agreement.
In reliance upon Borrower’s confirmation of the above representations and warranties and upon Borrower’s delivery of a fully executed original of this letter agreement, Xxxxxxx Xxxxx hereby consents to the Consent Item. Such consent shall in no way constitute a waiver or consent of any Default or Event of Default which may occur or have occurred but which is not specifically referenced as a “Consent Item” nor shall it obligate Xxxxxxx Xxxxx to provide any further waiver or consent of any Default or Event of Default (whether similar or dissimilar, including any subsequent Events of Default resulting from a failure to comply with Section 6.1 of the Credit Agreement).
Please acknowledge your receipt of this letter and your agreement with the terms set forth herein by signing below where indicated, and forward an execution copy to me via facsimile and overnight courier.
This letter may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one the same agreement. Delivery of an executed counterpart of this letter by facsimile shall be equally as effective as delivery of an original executed counterpart by this letter.
Very truly yours, |
XXXXXXX XXXXX CAPITAL, a division of Xxxxxxx Xxxxx Business Financial Services Inc., as Administrative Agent and a Lender |
By: | /s/ Xxxxxxx Xxxxxxxx | ||
Name: | Xxxxxxx Xxxxxxxx | ||
Title: | Vice President |
Acknowledged and Agreed:
ADVANCIS PHARMACEUTICAL CORPORATION
By: Name: Title: |
/s/ Xxxxxx X. Low Xxxxxx X. Low Vice President, Finance and Chief Financial Officer |
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