EXECUTION VERSION
ASSIGNMENT, ACCEPTANCE AND AMENDMENT AGREEMENT
DATED APRIL 17, 2000
Reference is made to the letter loan agreement dated as of November
1, 1999 (as amended, renewed, extended, amended and restated, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"; the terms defined
therein, unless otherwise defined herein, being used herein as therein defined)
between North American Vaccine, Inc., a Canadian corporation (the "BORROWER"),
and Bank of America, N.A. (the "ORIGINAL LENDER").
WHEREAS, the Original Lender wishes to sell and assign all of its
rights and obligations under the Loan Documents to BioChem Pharma Inc., a
Canadian corporation (the "NEW LENDER"), and the Borrower wishes to consent to
such sale and assignment upon the terms set out herein; and
WHEREAS, upon such sale and assignment, the Original Lender will
release the Guaranty and the Guarantor will release the Reimbursement Agreement
on the terms set out herein.
NOW, THEREFORE, in consideration of the foregoing, and other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree, with effect from the Effective Date (as defined in Section 1), as
follows:
1. Upon receipt of the Payoff Amount (as defined below) by the
Original Lender in immediately available funds delivered in accordance with
wiring instructions delivered by the Original Lender to the New Lender (or its
representatives), the Original Lender hereby agrees to sell and assign, without
recourse and without representation or warranty (except as to the
representations and warranties expressly made by Original Lender in paragraph 2
below) to the New Lender, and the New Lender hereby agrees to purchase and
assume from the Original Lender, all of the Original Lender's rights and
obligations under the Credit Agreement and the other Loan Documents. The
Borrower hereby consents to such sale and assignment from the Original Lender to
the New Lender. This Agreement shall become effective on April 17, 2000 (the
"EFFECTIVE DATE"). The aggregate amount owed to the Original Lender with respect
to the Loans (inclusive of principal, interest, commitment fees, other fees,
expense reimbursements and all other amounts owed to the Original Lender in
respect to such indebtedness) through and including the Effective Date is
US$19,549,190.40 (the "PAYOFF AMOUNT"). In the event that the Payoff Amount is
not received on or prior to 4:00 p.m. (Charlotte, North Carolina time) on April
17, 2000, the Loans will continue to accrue interest (at the Base Rate plus 2%)
at a per diem amount of US$5933.58 for each day after April 17, 2000 that the
Original Lender has not received payment in full prior to 4:00 p.m (Charlotte,
North Carolina time) in immediately available funds in accordance with the
wiring instructions delivered by the Original Lender. After giving effect to
such sale and assignment, the amount of the Loans owing to the New Lender will
be US$19,549,190.40.
2. The Original Lender (i) represents and warrants that it is the
legal and beneficial owner of the interest or interests being assigned by it
hereunder; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with any Loan Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, any Loan Document or any other
instrument or document furnished pursuant thereto; and (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto.
3. The New Lender (i) confirms that it has received a copy of the
Credit Agreement, together with such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Agreement; (ii) agrees that it will, independently and without reliance
upon the Original Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; and (iii) agrees that it
will perform in accordance with their terms all of the obligations that by the
terms of the Credit Agreement and the other Loan Documents are required to be
performed by it as the Lender.
4. (i) The New Lender shall be a party to the Credit Agreement and
the other Loan Documents and, to the extent provided in this Agreement, have the
rights and obligations of the Lender thereunder and (ii) the Original Lender
shall, to the extent provided in this Agreement, relinquish its rights and be
released from its obligations under the Credit Agreement and the other Loan
Documents (other than its rights under the Loan Documents that are specified
under the terms of such Loan Documents to survive the payment in full of the
obligations of the Borrower under the Loan Documents to the extent any claim
thereunder relates to an event arising prior to the Effective Date) and the
Original Lender shall cease to be a party thereto.
5. From and after the Effective Date, the Borrower shall make all
payments under the Credit Agreement in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and
commitment fees with respect thereto) to the New Lender. The Original Lender and
the New Lender shall make all appropriate adjustments in payments under the
Credit Agreement for periods prior to the Effective Date.
6. On the Effective Date, without any action on the part of the
Guarantor or the Borrower, (i) the Guaranty will be terminated and the Guarantor
unconditionally and irrevocably released, and (ii) the Reimbursement Agreement,
the Security Agreement dated November 1, 1999 between the Guarantor and the
Borrower and the Patent and Trademark Assignment and Security Agreement, dated
November 1, 1999 between the Guarantor and the Borrower will each be terminated
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and the Borrower unconditionally and irrevocably released. The parties further
agree that the Guarantor is a party to this Agreement solely for the purposes of
this Section 6, and the Guarantor shall have no rights or liabilities under this
Agreement other than those set out in this Section 6 and Sections 12 and 13.
7. Immediately following the sale and assignment under Sections 1 to
5, and the releases and terminations under Section 6, the New Lender, Dr.
Xxxxxxx Xxxxx ("XXXXX") and the Borrower agree that the Credit Agreement shall
be assigned as set forth in Part I of Schedule A and amended as set forth in
Part II of Schedule A.
8. The Borrower represents and warrants to each of the New
Lender and Frost as follows:
(1) the representations and warranties contained in each Loan
Document are correct on and as of the date hereof, after
giving effect to this Agreement, as though made on and as of
the date hereof, other than any such representations or
warranties that by their terms, refer to a specific date, in
which case, as of such specific date; and
(2) no Default or Event of Default which has not been waived has
occurred and is continuing under the Credit Agreement, as
amended hereby, or would result from this Agreement or the
consummation of the transactions contemplated hereby.
9. Without prejudice to any Default or Event of Default
arising after the date hereof:
(3) with respect to any Default or Event of Default (other than
one under Section 5(k) of the Credit Agreement) which is
continuing, which event does not have a grace or cure period
and which event arose on or before the date hereof, the New
Lender and Frost hereby waive their respective rights under
the last paragraph of Section 5 of the Credit Agreement; and
(4) with respect to any Default or Event of Default (other than
one under Section 5(k) of the Credit Agreement) which is
continuing, which event has a grace or cure period and which
event arose on or before the date hereof, such grace or cure
period shall be deemed to commence on the date hereof.
10. (a) Each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof" or words like
import referring to the Credit Agreement, and each
reference in each of the other Loan Documents to "the
Credit Agreement", "thereunder", "thereof" or words
of like import referring to the Credit Agreement,
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shall mean and be a reference to the Credit
Agreement, as amended by this Agreement.
1 The Credit Agreement and each of the other Loan
Documents, as specifically amended by this Agreement,
are and shall continue to be in full force and effect
and are hereby in all respects ratified and confirmed.
(2) The execution, delivery and effectiveness of this
Agreement shall not, except as expressly provided
herein, operate as a waiver of any right, power or
remedy by the New Lender under any of the Loan
Documents, nor constitute a waiver of any provision of
any of the Loan Documents.
(a) This Agreement shall become effective on the Effective
Date; provided that the Effective Date shall be deemed
modified to be the actual date of the sale and
assignment to the extent the parties do not close on
April 17, 2000.
(b) The Borrower agrees to pay on demand all costs and
expenses of the Original Lender and the New Lender in
connection with the preparation, execution, delivery
and administration, modification and amendment of
this Agreement and the other instruments and
documents to be delivered hereunder (including,
without limitation, the reasonable fees and expenses
of counsel for the Original Lender and the New
Lender) in accordance with the terms of Section 6(i)
of the Credit Agreement. In addition, the Borrower
shall pay any and all stamp and other taxes payable
or determined to be payable in connection with the
execution and delivery of this Agreement and the
other instruments and documents to be delivered
hereunder, and agrees to hold the New Lender harmless
from and against any and all liabilities with respect
to or resulting from any delay in paying or omission
to pay such taxes.
(c) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
(d) This Agreement may be executed in any number of
counterparts and by different parties hereto in
separate counterparts, each of which when so executed
shall be deemed to be an original and all of which
taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of
this Agreement by telecopier shall be effective as
delivery of an original executed counterpart of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers.
THE ORIGINAL LENDER
BANK OF AMERICA, N.A. as Original Lender
By: /s/ Xxxxx [illegible]
--------------------------------------
Title: Principal
Date: April 17, 2000
THE NEW LENDER
BIOCHEM PHARMA INC. as New Lender
By: /s/ Xxxx Xxxxxx
--------------------------------------
Title: Chief Financial Officer
Date: April 17, 2000
By: /s/ Xxxxxxx-X. Xxxxxxx
--------------------------------------
Title: Vice President Legal Affairs &
General Counsel
Date: April 17, 2000
THE BORROWER
NORTH AMERICAN VACCINE, INC. as Borrower
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Title: President and Chief Executive
Officer
Date: April 17, 2000
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THE GUARANTOR
XXXXXX INTERNATIONAL INC. as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Title: Group Vice President
Corporate Strategy and
Development
Date: April 17, 2000
FROST
/s/ Xxxxxxx Xxxxx, M.D.
----------------------------------------
Dr. Xxxxxxx Xxxxx
Date: April 17, 2000
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SCHEDULE A
PART I
ASSIGNMENT OF CREDIT AGREEMENT
1. In consideration of the sum of US$1 paid by Frost to the New
Lender (the receipt and sufficiency of which is hereby acknowledged), the New
Lender hereby sells and assigns, without recourse except as to the
representations and warranties made by it herein, to Frost, and Frost hereby
purchases and assumes from the New Lender, an interest in and to the New
Lender's rights and obligations under the Credit Agreement as of the date hereof
as specified below:
Amount of Commitment Assigned: $5,000,000
Amount of Loans Assigned: $0
After giving effect to such sale and assignment, the amount of the Loans owing
to the New Lender will be US$19,549,190.40.
2. The New Lender (i) represents and warrants that it is the legal
and beneficial owner of the interest or interests being assigned by it under the
Assignment, Acceptance and Amendment Agreement dated April 17, 2000 and that
such interest or interests are free and clear of any adverse claim; (ii) makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any Loan
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, any
Loan Document or any other instrument or document furnished pursuant thereto;
and (iii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under any Loan Document or
any other instrument or document furnished pursuant thereto.
3. Frost (i) confirms that he has received a copy of the Credit
Agreement, together with such other documents and information as he has deemed
appropriate to make his own credit analysis and decision to enter into this
Agreement; (ii) agrees that he will, independently and without reliance upon the
New Lender and based on such documents and information as he shall deem
appropriate at the time, continue to make his own credit decisions in taking or
not taking action under the Credit Agreement; and (iii) agrees that he will
perform in accordance with their terms all of the obligations that by the terms
of the Credit Agreement are required to be performed by him as the Lender to the
extent of the obligations assumed by him under this Agreement.
4. (i) Frost shall be a party to the Credit Agreement and, to the
extent provided in this Agreement, have the rights and obligations of the Lender
thereunder and (ii) the New Lender shall, to the extent provided in this
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Agreement, relinquish its rights and be released from its obligations under the
Credit Agreement (other than its rights and obligations under the Loan Documents
that are specified under the terms of such Loan Documents to survive the payment
in full of the obligations of the Borrower under the Loan Documents to the
extent any claim thereunder relates to an event arising prior to the Effective
Date).
5. The Borrower shall make all payments under the Credit Agreement
in respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and commitment fees with respect thereto) to
Frost.
6. It is the intention of the New Lender, the Borrower and Frost
that Frost shall not have any right or interest in or to any of the Security
Agreement, the IP Security Agreement and the Pledge Agreement (the "SECURITY
DOCUMENTS"). The New Lender agrees with Frost that, to the extent the New Lender
receives or realizes any proceeds under or in respect of the Security Documents
or the collateral covered thereby or subject thereto, the New Lender shall,
after deduction of all reasonable costs and expenses incurred by the New Lender
in the realization of such proceeds, pay to Frost an amount equal to Frost's
Share of such net proceeds. For the purpose of this paragraph, "FROST'S SHARE"
shall mean the result (expressed as a percentage) of dividing the aggregate
outstanding principal amount of Loans made by Frost by the aggregate outstanding
principal amount of all Loans made by the New Lender and Frost, in each case
calculated on the date of receipt of such proceeds by the New Lender. New Lender
covenants and agrees for the benefit of Frost that, upon the occurrence and
during the continuance of an Event of Default under the Credit Agreement, it
will take all commercially reasonable action to enforce the Lender's rights
thereunder.
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SCHEDULE A
PART II
AMENDMENTS TO CREDIT AGREEMENT
3. In the first paragraph, the words "BANK OF AMERICA, N.A. ("LENDER")
is" shall be deleted and replaced with the words "BIOCHEM PHARMA
INC. ("LENDER") and DR. XXXXXXX XXXXX ("XXXXX") are"
4. Section 1(a) (other than the heading) shall be deleted in its
entirety and replaced with the words:
"Subject to the terms and conditions set forth herein, Lender and
Frost, on a several (and not joint) basis, agree to make available
to Borrower until the Maturity Date a revolving line of credit
providing for loans ("LOANS") in an aggregate principal amount not
exceeding at any time US$45,000,000; PROVIDED, HOWEVER, Lender shall
not be obligated to make Loans in an aggregate principal amount
exceeding US$40,000,000 (the "BIOCHEM COMMITMENT") and Frost shall
not be obligated to make Loans in an aggregate principal amount
exceeding US$5,000,000 (the "FROST COMMITMENT", and together with
the BioChem Commitment, the "COMMITMENTS" and each a "COMMITMENT ")
and PROVIDED FURTHER, HOWEVER, that Frost shall not, and shall not
be obligated to, make any Loans hereunder until the BioChem
Commitment has been drawn down in full by the Borrower and remains
outstanding. Subject to the foregoing limits, Borrower may borrow,
repay and reborrow Loans with until the Maturity Date.".
5. Section 1(b) (other than the heading) shall be deleted in its
entirety and replaced with the words:
"Borrower may request that Loans be made by irrevocable notice to be
received by Lender or Frost (as the case may be) not later than
11:00 a.m. on the third Business Day before the day of the proposed
Loan, or such shorter period as Lender or Frost (as the case may be)
may agree. Such request may not be made as more frequently than
weekly, and shall be accompanied by details of the proposed use by
Borrower of such Loan.".
6. The first two paragraphs of Section 1(c) (other than the heading)
shall be deleted in their entirety and replaced with the words:
"Interest on the unpaid principal amount of each Loan shall accrue
monthly from the date of the making thereof until the principal
amount thereof shall be repaid in full at a rate of 15% per annum
and shall be payable monthly in arrears and on the repayment or
maturity of each Loan, by acceleration or otherwise.".
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7. In Section 1(c), in the third paragraph, the words "Base Rate" shall
be deleted and replaced with the words "rate specified in the
preceding paragraph".
8. In Section 1(c), in the fourth paragraph, after the word "Lender"
the words "or Frost" shall be added.
9. In Section 1(d) the first sentence shall be deleted in its entirety
and replaced with the words:
"The Loans and all payments thereon shall be evidenced by Lender's
and Frost's (as the case may be) loan accounts and records;
PROVIDED, HOWEVER, that upon the request of Lender or Frost (as the
case may be), the Loans of Lender or Frost (as the case may be) may
be evidenced by grid promissory notes (each a "NOTE") in the form of
EXHIBIT B hereto, instead of or in addition to such loan accounts
and records.".
10. In Section 1(e), paragraphs (i) and (ii) shall be deleted in their
entirety and replaced with the words:
"(i) BIOCHEM DEFERRED FUNDING FEE. The Borrower shall pay to
Lender a deferred funding fee of $10,000,000 on the Maturity Date.
(ii) FROST DEFERRED FUNDING FEE. Providing at least one Loan has
been made by Frost on or before the Maturity Date, the Borrower
shall pay to Frost a non-assignable and non-transferrable deferred
funding fee of $1,250,000 on the Maturity Date.
(iii) FROST COMMITMENT FEE. If no Loan has been made by Frost on
or before the Maturity Date, the Borrower shall pay to Frost a
commitment fee of $50,000 on the Maturity Date.".
11. In Section 1(f), the second paragraph shall be deleted in its
entirety and replaced with the words:
"Borrower shall make (i) all payments to Lender required hereunder
not later than 1 p.m. on the date of payment in same day funds in
United States Dollars to the bank of Lender located at Royal Bank of
Canada, 0000 Xx Xxxxxxxxx Xxxx, Xxxxx, Xxxxxx Xxxxxx, X0X 0X0,
transit number: 02301, account number: 000-000-0 or such other bank
or address as Lender may from time to time designate in writing and
(ii) all payments to Frost required hereunder not later than 1 p.m.
on the date of payment in same day funds in United States Dollars to
the bank of Frost located at such bank or address as Frost may from
time to time designate in writing.".
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12. In Section 1(f):
(1) in the third paragraph, each occurrence of the word "Lender"
shall be deleted and replaced with the words "Lender or Frost
(as the case may be)"; and
(2) in line fourteen, after the words "is organized" the words "or
resident" shall be added.
13. Section 1(g) shall be deleted in its entirety and replaced with the
words:
"PREPAYMENTS. Borrower may, upon same-day notice, prepay the Loans
on any Business Day. Prepayments must be accompanied by a payment of
interest on the amount so prepaid. Prepayments must be in a
principal amount of at least $500,000 or a multiple of $100,000 in
excess thereof. If any prepayment is made at a time when Loans from
Lender and Frost are outstanding, such prepayment of principal and
interest shall be paid to Lender and Frost pro rata to the aggregate
outstanding amount of their respective Loans".
14. In Section 2(c), paragraph (i), the words "and Guarantor" shall be
deleted and replaced with the words "or Frost".
15. In Section 3, in the first line, after the word "Lender" the words
"and Frost" shall be added.
16. In Section 3(f):
(1) in the first line, the word "solely" shall be deleted; and
(2) in the second line, after the word "Borrower" the words "or
for such other purposes as Lender or Frost (as the case may
be) may approve" shall be added.
17. In Section 3(j), in the first line, after the word "Lender" the
words "or Frost" shall be added.
18. In Section 3(l) the words "and Guarantor" shall be deleted.
19. In Section 4(a), in the first line, after the word "Lender" the
words "and, if Frost shall so request, to Frost" shall be added.
20. Section 4(b)(ii) shall be deleted in its entirety and replaced with
the words:
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"(ii) comply with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation,
compliance with ERISA, the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of
1970, Environmental Laws and Environmental Permits, in each
case the violation of which could result in a Material Adverse
Effect.".
21. In Section 4(b)(v) after the word "Lender" the words "and Frost"
shall be added.
22. In Section 4(b)(vi):
(1) in the first line, the words "and (B)" shall be deleted and
replaced with the words ", (B) all of its stock and other
collateral subject to the Pledge Agreement and (C);
(2) in the fourth line, after the word "Lender" the words "and
Frost" shall be added;
(3) in the fifth line, after the words "IP Security Agreement" the
words ", the Pledge Agreement" shall be added; and
(4) in the last line, the word "and" shall be deleted.
23. In Section 4(b)(vii) the full stop at the end shall be deleted and
replaced with the words "; and", and the following paragraphs shall
be added:
"(viii) preserve and maintain its existence and legal structure,
provided, however, that the Borrower and its Subsidiaries
may consummate any merger or consolidation permitted under
Section 4(c) (iii); and
(vix) keep true records and books of account in which entries
will be made of all dealings or transactions in relation to
its business and affairs in accordance with generally
accepted accounting principles, to the extent applicable,
applied on a consistent basis.".
24. In Section 4(c)(i) the full stop at the end shall be deleted and
replaced with the words " and (C) Indebtedness in an aggregate
amount of up to $5,000,000 provided such Indebtedness is
subordinated to the Indebtedness under the Loan Documents in a
manner reasonably satisfactory to Lender and Frost".
25. In Section 4(c), paragraph (iii), the words "(other than Guarantor
or any Affiliate Guarantor)" shall be deleted.
26. After Section 4(c)(xii) the following paragraphs shall be added:
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"(xiii) ORGANIZATIONAL DOCUMENTS. Amend, modify, restate or
supplement its Certificate of Incorporation or Bylaws if
such action could reasonably be expected to adversely
affect the rights of the Lender under the Credit Agreement,
the IP Security Agreement, the Pledge Agreement or the
Security Agreement.
(xiv) SUBSIDIARIES. Form, create or acquire any Subsidiary or
permit any Person other than the Borrower or a wholly owned
Subsidiary to hold an equity interest in any Subsidiary,
other than pursuant to the Pledge Agreement.
(xv) PARTNERSHIPS, ETC. Become a general partner in any general
or limited partnership or joint venture other than any
Subsidiary the sole assets of which consist of its interest
in such partnership or joint venture."
27. In Section 5(g) after each occurrence of the word "Lender" the words
"and Frost" shall be added.
28. Section 5(h) shall be deleted in its entirety and replaced with the
words "Intentionally Omitted".
29. In Section 5(m) after the words "any party thereto" the words "or
terminated automatically in accordance with its terms; PROVIDED,
HOWEVER, that (i) if the date by when the Effective Time (as defined
in the North American Vaccine Acquisition Agreement) shall have
occurred has been extended pursuant to Section 9.01(b) of the North
American Vaccine Acquisition Agreement, it shall not be an Event of
Default under this Section 5(m) until such extended date; or (ii) in
any other circumstance, it shall not be an Event of Default under
this Section 5(m) until 15 calendar days have elapsed" shall be
added.
30. In Section 5(o) the full stop at the end shall be deleted and
replaced with the words "; or", and the following paragraph shall be
added:
"(p) Rejection by UK authorities of NeisVac-C(TM)application.".
31. In the last paragraph of Section 5:
(1) the words "Upon the occurrence of an Event of Default, Lender
may declare the Commitment to be terminated, whereupon the
Commitment shall be terminated," shall be deleted and replaced
with the words:
"Upon the occurrence of an Event of Default, which Event of
Default (other than any of the events specified in Sections
5(i),(j) or (m) above)) has not been cured within 10 calendar
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days thereof, Lender or Frost may declare its or his
respective Commitment to be terminated, whereupon such
Commitment shall be terminated,"; and
(2) in line eight, the word "Commitment" shall be deleted and
replaced with the word "Commitments".
32. In Section 6(b) the words "Charlotte, North Carolina" shall be
deleted and replaced with the words "Quebec, Canada".
33. Sections 6(c) and (d) shall be deleted in their entirety and
replaced with the words "Intentionally Omitted".
34. In Section 6(f):
(1) in the second line, after the word "Lender" the words "or
Frost (as the case may be)" shall be added;
(2) in the fourth line, after the word "Lender" the words "and
Frost" shall be added; and
(3) in the second line, after the word "Lender" the words "or
Frost (as the case may be)" shall be added.
35. In Section 6(h):
(1) in the third line, after the word "LENDER" the words "OR FROST
(AS THE CASE MAY BE)" shall be added;
(2) in the ninth line, the words "(B) GUARANTOR OR (C)" shall be
deleted and replaced with the words "OR (B)"; and
(3) the final two sentences shall be deleted and replaced with the
words:
"Borrower agrees to execute any documents reasonably requested
by Lender or Frost (as the case may be) in connection with any
such assignment. All information provided by or on behalf of
Borrower to Lender or its affiliates or Frost may be furnished
by Lender or Frost to Lender's affiliates and to any actual or
proposed assignee or participant.".
36. In Section 6(i) after each occurrence of the word "Lender" the words
"or Frost (as the case may be)" shall be added.
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37. In Section 6(m) the word "AND LENDER" shall be deleted and replaced
with the words ", LENDER AND FROST" shall be added.
38. In Exhibit A, the following definitions shall be deleted:
Base Rate
Base Rate Loan
Breakage Costs
Federal Funds Rate
Guaranty Event of Default
Guaranty Obligation
Interest Period
Loan Documents
Maturity Date
Offshore Rate
Offshore Rate Loan;
and the following definitions shall be added:
Environmental Law: Any Federal, state, local or foreign
statute, law, ordinance, rule,
regulation, code, order, writ, judgment,
injunction or decree or any judicial or
agency interpretation, policy or guidance
(in the case of the latter, only to the
extent compliance is legally compulsory)
relating to pollution or protection of
the environment, health, safety or
natural resources, including, without
limitation, those relating to the use,
handling, transportation, treatment,
storage, disposal, release or discharge
of Hazardous Materials.
Environmental Permit: Any permit, approval, identification
number, license or other authorization
required under any Environmental Law.
Hazardous Materials: (a) Petroleum or petroleum products,
by-products or breakdown products,
radioactive materials,
asbestos-containing materials,
polychlorinated biphenyls and radon gas
and (b) any other chemical, materials or
substances designated, classified or
regulated as hazardous or toxic or as a
pollutant or contaminant under any
Environmental Law.
Loan Documents: This Agreement, the Security Agreement,
the IP Security Agreement, the Pledge
Agreement and any promissory note,
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certificate, fee letter, financing
statement and other instrument, document
or agreement delivered in connection with
this Agreement or the Security Agreement
or the IP Security Agreement or the
Pledge Agreement.
Maturity Date: June 30, 2000, or such earlier date on
which the Commitments may terminate in
accordance with the terms hereof,
provided, HOWEVER, that (i) if the date
by when the Effective Time (as defined in
the North American Vaccine Acquisition
Agreement) shall have occurred has been
extended pursuant to Section 9.01(b) of
the North American Vaccine Acquisition
Agreement to a date after June 30, 2000,
the Maturity Date shall be deemed to be
extended to such later date, or (ii) if a
Default under Section 5(m) has occurred
and the grace period under such Section
has not expired on or before June 30,
2000, the Maturity Date shall be deemed
to be extended to the end of such grace
period.
Pledge Agreement: The Pledge Agreement, if any, between the
Borrower and Lender with respect to
certain stock of Borrower and its
Subsidiaries.
39. In Exhibit A, in the definition of Business Day:
(1) the words "State of North Carolina" shall be deleted and
replaced with the words "Quebec, Canada"; and
(2) the words "and, if such day relates to any Offshore Rate Loan,
means any such day on which dealings in dollar deposits are
conducted by and between banks in the offshore dollar
interbank market" shall be deleted.
40. In Exhibit A, in the definition of Change of Control, the full stop
at the end shall be deleted and replace with the words "or (d) upon
the completion of the North American Vaccine Acquisition."
41. In Exhibit A, in the definition of North American Vaccine
Acquisition Agreement, the words "Agreement and Plan of Merger to
be" shall be deleted and replaced with the words "Share Exchange
Agreement dated as of November 17, 1999, as amended by Amendment No.
1 to Share Exchange Agreement dated as of April 17, 2000".
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42. In Exhibit A, in the definition of Principal Shareholder, the words
"Guarantor," shall be deleted.
43. Exhibit B shall be deleted in its entirety and replaced with the
attached Exhibit.
*
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EXHIBIT TO SCHEDULE A TO ASSIGNMENT,
ACCEPTANCE AND AMENDMENT AGREEMENT
FORM OF PROMISSORY NOTE
$[40][5],000,000 Dated: April __, 2000
FOR VALUE RECEIVED, the undersigned, NORTH AMERICAN VACCINE, INC., a
Canadian corporation ("BORROWER"), hereby promises to pay to the order of
[BIOCHEM PHARMA INC. ("LENDER")] [XX. XXXXXX XXXXX ("XXXXX")] the principal sum
of [FORTY] [FIVE] Million Dollars (US$ [40] [5],000,000) or, if less, the
aggregate unpaid principal amount of all Loans made by [LENDER] [FROST] to
Borrower pursuant to the letter agreement dated as of November 1, 1999 between
Borrower and Bank of America, N.A.("BOA"), as assigned and amended pursuant to
the assignment, acceptance and amendment agreement dated April ___, 2000 between
Borrower, Lender, Frost, BoA and Xxxxxx International Inc. (as so assigned and
amended, and as it may be otherwise amended, restated, extended, supplemented or
otherwise modified from time to time, the "AGREEMENT") on the Maturity Date.
[Lender][Frost] is authorized to endorse the amount and the date of
each Loan made by [Lender][Frost] and each payment of principal with respect
thereto on the schedule annexed hereto and made a part hereof, or on
continuations thereof which shall be attached hereto and made a part hereof;
PROVIDED that any failure to so endorse such information on such schedule or
continuation thereof or any error in doing so shall not limit or otherwise
affect any obligation of Borrower under the Agreement or this promissory note.
This promissory note is one of the Notes referred to in, and is
entitled to the benefits of, the Agreement, which Agreement, among other things,
contains provisions for acceleration of the maturity of the Loans evidenced
hereby upon the happening of certain stated events and also for prepayments on
account of principal of the Loans prior to the maturity thereof upon the terms
and conditions therein specified.
Unless otherwise defined herein, terms defined in the Agreement are
used herein with their defined meanings therein. This promissory note shall be
governed by, and construed in accordance with, the laws of the State of New
York.
NORTH AMERICAN VACCINE, INC.
By: ___________________________
Name:
Title:
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ADVANCES AND PAYMENTS OF PRINCIPAL
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AMOUNT OF UNPAID
AMOUNT OF PRINCIPAL PAID PRINCIPAL NOTATION
DATE LOAN OR PREPAID BALANCE MADE BY
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