FIRST AMENDMENT TO CREDIT AND SECURITY AGREEMENT
FIRST
AMENDMENT
THIS
FIRST AMENDMENT TO CREDIT AND SECURITY AGREEMENT (this
“Agreement”)
is
made as of May 30, 2008 by and between DISCOVERY
LABORATORIES,
INC.,
a
Delaware corporation (“Borrower”),
and
GE
BUSINESS FINANCIAL SERVICES INC.
(formerly known as Xxxxxxx Xxxxx Business Financial Services Inc.)
(“Lender”).
Recitals
A. Lender
and Borrower have entered into that certain Credit and Security Agreement dated
as of May 21, 2007 (as the same may from time to time be amended, modified,
supplemented or restated, the “Credit
Agreement”).
Lender has extended credit to Borrower for the purposes permitted in the Credit
Agreement.
B. Borrower
has requested that Lender amend the Credit Agreement as more fully set forth
herein. Lender has agreed to so amend certain provisions of the Credit
Agreement, but only to the extent, in accordance with the terms, subject to
the
conditions and in reliance upon the representations and warranties set forth
below.
Agreement
NOW,
THEREFORE,
in
consideration of the foregoing recitals and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, and
intending to be legally bound, the parties hereto agree as follows:
1. Definitions.
Capitalized terms used but not defined in this Agreement,
including its preamble and recitals,
shall
have the meanings given to them in the Credit Agreement.
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2.
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Amendments
to Credit Agreement.
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2.1 Section
1(a) (Availability).
Section
1(a) of the Credit Agreement is hereby amended by
adding the following sentence immediately after the last sentence of the
Section:
Notwithstanding
the foregoing, the aggregate principal amount of Equipment Advances made during
the period commencing on May 30, 2008 and ending on the last day of the Draw
Period shall not exceed Three Hundred Thousand Dollars ($300,000).
2.2 Section
12 (Definitions
and Rules of Construction).
The
following term and its definition in Section 12 of the Credit Agreement are
amended and restated in their entirety as follows:
“Draw
Period”
is the period of time from May 21, 2007 through the earlier to occur of (a)
November 30, 2008, or (b) a Default.
2.3 Notices.
The
addresses of Lender for all notices, requests and other communications are
hereby changed to the following:
GE
Business Financial Services Inc.
c/o
GE Healthcare Financial Services, Inc., LSF
00
Xxxxxxx Xxxxxxx Xxxx, Xxxxx Xxxxx
Xxxxxxx,
Xxxxxxxxxxx 00000
Attention:
Senior Vice President of Risk
Phone:
(000) 000-0000
Facsimile:
(000) 000-0000
With
a copy to:
GE
Business Financial Services Inc.
c/o
GE Healthcare Financial Services, Inc.
Xxx
Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
General Counsel
Phone:
(000) 000-0000
Facsimile:
(000) 000-0000
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3.
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Limitation
of Amendments.
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3.1 The
amendments set forth in Section 2 above are effective for the purposes set
forth herein and shall be limited precisely as written and shall not be deemed
to (a) be a consent to any amendment, waiver or modification of any other
term or condition of any Financing Document, or (b) otherwise prejudice any
right or remedy which Lender may now have or may have in the future under or
in
connection with any Financing Document.
3.2 This
Agreement shall be construed in connection with and as part of the Financing
Documents and all terms, conditions, representations, warranties, covenants
and
agreements set forth in the Financing Documents, are hereby ratified and
confirmed and shall remain in full force and effect.
4. Representations
and Warranties.
To
induce Lender to enter into this Agreement, Borrower hereby represents and
warrants to Lender as follows:
4.1 Immediately
after giving effect to this Agreement (a) the representations and warranties
contained in the Financing Documents are true, accurate and complete in all
material respects as of the date hereof (except to the extent such
representations and warranties relate to an earlier date, in which case they
are
true and correct as of such date), and (b) no Default or Event of Default
has occurred and is continuing;
4.2 Borrower
has the power and due authority to execute and deliver this Agreement and to
perform its obligations under the Credit Agreement, as amended
hereby;
4.3 The
execution and delivery by Borrower of this Agreement and the performance by
Borrower of its obligations under the Credit Agreement, as amended hereby,
have
been duly authorized by all necessary action on the part of Borrower;
4.4 The
organizational documents of Borrower most recently delivered to Lender remain
true, accurate and complete and have not been amended, supplemented or restated
and are and continue to be in full force and effect;
4.5 The
execution and delivery by Borrower of this Agreement and the performance by
Borrower of its obligations under the Credit Agreement, as amended hereby,
do
not and will not contravene (a) any law or regulation binding on or
affecting Borrower, (b) any material contractual restriction with a Person
binding on Borrower, (c) any order, judgment or decree of any court or
other governmental or public body or authority, or subdivision thereof, binding
on Borrower, or (d) the organizational documents of Borrower;
4.6 The
execution and delivery by Borrower of this Agreement and the performance by
Borrower of its obligations under the Credit Agreement, as amended hereby,
do
not require any order, consent, approval, license, authorization or validation
of, or filing, recording or registration with, or exemption by any governmental
or public body or authority, or subdivision thereof, binding on Borrower, except
as already has been obtained or made;
4.7 This
Agreement has been duly executed and delivered by Borrower and is the binding
obligation of Borrower, enforceable against Borrower in accordance with its
terms, except 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.
5. Counterparts.
This
Agreement may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed counterpart of this Agreement by facsimile
or other electronic method of transmission shall be equally as effective as
delivery of an original executed counterpart of this Agreement. Any party
delivering an executed counterpart of this Agreement by facsimile or other
electronic method of transmission also shall deliver an original executed
counterpart of this Agreement but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability or binding effect
of
this Agreement.
6. Consent
Fee.
Borrower hereby agrees to pay to Lender a non-refundable consent fee in the
amount of One Thousand Five Hundred Dollars ($1,500) in connection with the
amendments set forth herein to be paid by wire transfer on or before the date
hereof.
7. Effectiveness.
This
Agreement shall be deemed effective upon (a) the due execution and delivery
to
Lender of this Agreement by each party hereto and (b) Borrower’s
payment of the Consent Fee.
8. Attorneys’
Fees and Expenses.
Borrower hereby agrees to pay all of Lender’s legal fees and expenses in
connection with the negotiation and preparation of this Agreement in an amount
not to exceed $2,000. The foregoing cap on legal fees and expenses relates
only
to the negotiation and preparation of this Agreement, and not to any other
legal
fees or expenses related to the Loan.
9. Governing
Law.
This
Agreement and the rights and obligations of the parties hereto shall be governed
by and construed in accordance with the laws of the State of New York.
10. Integration.
This
Agreement and the Financing Documents represent the entire agreement about
this
subject matter and supersede prior negotiations or agreements. All prior
agreements, understandings, and negotiations between the parties about the
subject matter of this Agreement, and the Financing Documents merge into this
Agreement and the Financing Documents.
[Signature
page follows immediately.]
IN
WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed and delivered
as
of the date first written above.
| BORROWER: | ||
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DISCOVERY
LABORATORIES,
INC.
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| By: | /s/ Xxxx X. Xxxxxx | |
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Name: Xxxx X. Xxxxxx |
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| Title: Executive Vice President and Chief Financial Officer | ||
| LENDER: | ||
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GE
BUSINESS FINANCIAL SERVICES INC.
(formerly
known as Xxxxxxx Xxxxx Business Financial Services
Inc.)
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| By: | /s/ Xxxxx X. Xxxxxx | |
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Name: Xxxxx X. Xxxxxx |
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| Title: Its Duly Authorized Signatory | ||
