Exhibit 10.1
FIFTH AMENDMENT
TO
AMENDED AND RESTATED LOAN AGREEMENT
This Amendment is made as of August 7, 1997 by and between XXXXXX
PHARMACEUTICAL, INC., a Delaware corporation with its principal office at 00
Xxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx (the "Borrower"), and BANKBOSTON, N.A. (f/k/a
The First National Bank of Boston), a national banking association with its
principal office at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx (the "Bank").
RECITALS
A. The Bank and the Borrower are parties to a certain Amended and
Restated Loan Agreement dated August 17, 1993, as amended by a certain First
Amendment to Amended and Restated Loan Agreement dated June 29, 1995, a
certain Second Amendment to Amended and Restated Loan Agreement dated August
30, 1995, a certain Third Amendment to Amended and Restated Loan Agreement
dated March 25, 1996 and a certain Fourth Amendment to Amended and Restated
Loan Agreement dated July 31, 1996 (as amended, the "Loan Agreement").
Capitalized terms used herein without definition have the meaning assigned to
them in the Loan Agreement.
B. The Borrower has requested certain amendments to the Loan
Agreement as set forth herein.
C. Subject to certain terms and conditions, the Bank is willing to
agree to the same, as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
I. AMENDMENTS TO LOAN AGREEMENT. The Borrower and the Bank agree that the
Loan Agreement shall be amended as follows:
A. Addition of Definitions. The following definitions are added to
Section 1.1 of the Loan Agreement in the appropriate alphabetical order:
"Consolidated Current Assets": As of any date, all assets of the Borrower
and any Subsidiaries on a consolidated basis that, in accordance with
generally accepted accounting principles, are properly classified as current
assets as of such date.
"Consolidated Current Liabilities": As of any date, all liabilities of
the Borrower and any Subsidiaries on a consolidated basis maturing on demand
or within one (1) year from such date, and any other liabilities as of such
date as may properly classified as current liabilities in accordance with
generally accepted accounting principles.
B Deletion of Definitions. The definitions of "Adjusted Income" and
"Special Expenses" are deleted from Section 1.1 in their entirety.
C. Section 8.4 Amended. Section 8.4 (iii) of the Loan Agreement is
hereby deleted in its entirety and replace with the following:
"(iii) sales of assets for an aggregate consideration not exceeding
$5,000,000 in any fiscal year."
D. Section 9.2. Section 9.2 of the Loan Agreement is hereby deleted
in its entirety and replaced with the following:
"S. 9.2. Liquidity. The Borrower shall at all times maintain
Consolidated Current Assets which exceed the Borrowers Consolidated
Liabilities by greater than $40,000,000."
II. NO FURTHER AMENDMENTS. Except as specifically amended herein, all terms
and conditions of the Loan Agreement shall remain in full force and effect as
originally constituted. Each reference in the Loan Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
Loan Agreement shall mean and be a reference to the Loan Agreement as amended
by this Fifth Amendment, and each reference in any other Loan Document to
the Loan Agreement, "thereunder", "thereof" or words of like import referring
to the Loan Agreement shall mean and be a reference to the Loan Agreement as
amended by this Fifth Amendment.
III. MISCELLANEOUS.
1. The Borrower represents and warrants that no event has occurred or
failed to occur, which constitutes, or which, solely with the passage of time
or the giving of notice (or both) would constitute, an Event of Default.
2. The execution and delivery of this Fifth Amendment by the Borrower
has been duly authorized by all requisite corporate action of the Borrower, is
legal, valid and binding on the Borrower, and will not violate any provision
of law, any order, judgment or decree of any court or other agency of
government, or the organizational documents of the Borrower or any other
instrument to which the Borrower is a party, or by which the Borrower is
bound.
3. The representations and warranties contained in Section 6 of the
Loan Agreement are true and correct in all material respects on and as of the
date of this Fifth Amendment as though made on and as of such date (except to
the extent that such representations and warranties expressly relate to an
earlier date or except to the extent variations therefrom have been (i)
permitted under the terms of Loan Agreement, (ii) otherwise approved in
writing by the Bank or (iii) reflected in reports filed by the Borrower with
the Securities and Exchange Commission).
4. As provided in the Loan Agreement, the Borrower agrees to
reimburse the Bank upon demand for all out-of-pocket costs, charges,
liabilities, taxes and expenses of the Bank (including reasonable fees and
disbursements of counsel to the Bank) in connection with the preparation,
negotiation, interpretation, execution and delivery of this Fifth Amendment
and any other agreements, instruments or documents executed pursuant or
relating hereto.
5. The Borrower represents, warrants, and agrees that the Borrower
has no claims, defenses, counterclaims or offsets against the Bank in
connection with the Loan Agreement or the Obligations, and, to the extent
that any such claim, defense, counterclaim or offset may exist, the Borrower
hereby affirmatively WAIVES AND RELEASES Bank from the same.
This Fifth Amendment shall take effect as a sealed instrument under the
laws of the Commonwealth of Massachusetts as of the date first above written.
XXXXXX PHARMACEUTICAL, INC.
By: /s/ Xxx X. Xxxxxxxxxxxx
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Name: Xxx X. Xxxxxxxxxxxx
Title: Vice President - Finance,
Treasurer and Chief
Financial Officer
BANK OF BOSTON, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Director
