EXHIBIT 99.1
FIRST AMENDMENT TO CREDIT AND SECURITY AGREEMENT
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First Amendment to Credit and Security Agreement ("Amendment") made as
of September 28, 2006, by and 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 (herein also
referred to in either or both capacities as "Xxxxxxx Xxxxx").
BACKGROUND
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A. Borrower and Xxxxxxx Xxxxx, individually as a Lender and as Agent,
entered into a certain Credit and Security Agreement dated as of June 30, 2006
(together with all amendments, restatements, modifications, extensions,
consolidations and substitutions, the "Credit Agreement"), and certain related
"Financing Documents" (as defined in the Credit Agreement) evidencing certain
financing arrangements among Agent, Lenders and Borrower as more particularly
described therein. The Credit Agreement and all Financing Documents, together
with all amendments, restatements, modifications, extensions, consolidations and
substitutions, are sometimes referred to herein collectively as the "Existing
Loan Documents." All capitalized terms used herein and not defined herein shall
have the meaning ascribed to such term in the Credit Agreement.
B. Borrower and Xxxxxxx Xxxxx have agreed to amend certain provisions
of the Credit Agreement pursuant to the terms and conditions of this Amendment.
NOW THEREFORE, with the foregoing Background deemed incorporated by
reference in this Amendment and for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound, covenant and agree as follows:
1. AMENDMENTS. The Credit Agreement is hereby amended in the
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following manner:
(a) Revenue/Invoiced Products. Section 6.1 of the Credit
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Agreement is amended and restated in its entirety with the following:
Section 6.1 Revenue/Invoiced Products. For the fiscal quarter
ending December 31, 2006, Borrowers shall have either (a) Revenue
of at least $5,000,000 or (b) Invoiced Products of at least
$3,000,000. For the fiscal quarter ending March 31, 2007 and for
each fiscal quarter thereafter, Borrowers shall have Revenue of at
least $5,000,000.
2. REPRESENTATIONS AND WARRANTIES. Borrower represents,
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warrants and acknowledges to Lenders and Agent as follows:
(a) This Amendment has been duly executed and delivered by
Borrower and is in full force and effect as of the date hereof and constitutes a
legal, valid and binding obligation of Borrower, enforceable against Borrower in
accordance with its terms;
(b) No Event of Default or Default exists or has occurred and is
continuing as of the date of this Amendment;
(c) Borrower has taken all necessary authorizing action to
authorize the execution, delivery, and performance of this Amendment and each
document, instrument and agreement to be delivered by any Section hereof;
(d) The execution by Borrower and delivery to Agent of this
Amendment is not and will not be in contravention of any order of any court or
other agency of government, law or any other indenture or agreement to which
Borrower is a party or Organizational Documents of Borrower or is or will be in
conflict with, or result in a breach of, or constitute (with due notice and/or
passage of time) a default under any such indenture, agreement or undertaking or
result in the imposition of any lien, charge, encumbrance of any nature on any
property of Borrower; and
(e) All warranties and representations made to Agent and/or
Lenders under the Credit Agreement and the other Existing Loan Documents (as and
if specifically amended herein) are true and correct as to the date hereof,
except to the extent specifically waived by Section 1 of this Amendment.
3. REAFFIRMATION. Except as expressly amended hereby, all of
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the terms and conditions of the Credit Agreement and the other Existing Loan
Documents are hereby ratified and confirmed and continue unchanged and in full
force and effect. This Amendment shall be deemed incorporated into and made a
part of the Credit Agreement, and all references to the Credit Agreement in any
Financing Document (including the Credit Agreement) shall mean the Credit
Agreement as modified by this Amendment. The Existing Loan Documents and this
Amendment shall be construed as integrated and complementary of each other, and
as augmenting and not restricting Agent's and/or Lender's rights, remedies and
security. If, after applying the foregoing, an inconsistency still exists, the
provisions of this Amendment shall control. Borrower hereby also confirms and
ratifies in all respects the Obligations outstanding under the Existing Loan
Documents, and acknowledges that the Existing Loan Documents shall continue in
full force and effect as therein written except as amended hereby and that no
claims, counterclaims, offsets or defenses arising out of or with respect to the
Obligations under the Existing Loan Documents exist. Borrower hereby confirms
its existing grant to Agent of a continuing first priority Lien on and security
interest in, upon, and to all right, title and interest in and to the
Collateral, specifically including the Personal Property described on Schedule
8.1 of the Credit Agreement, as security for the payment and performance of the
Obligations. Borrower hereby confirms that all security interests at any time
granted by it to Agent continue in full force and effect and secure and shall
continue to secure the Obligations, so long as any such liabilities or
obligations remain outstanding and that all property subject thereto remain free
and clear of any liens or encumbrances other than Permitted Liens. Nothing
herein contained is intended to in any manner impair or limit the validity,
priority and extent of Agent's existing security interest in and liens upon the
Collateral.
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4. MISCELLANEOUS
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(a) Counterparts. This Amendment may be executed in any number
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of counterparts and by different parties on separate counterparts (including by
facsimile or email transmission of executed signature pages hereto), each of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one
and the same Amendment.
(b) Third-Party Rights. No rights are intended to be created
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hereunder for the benefit of any third-party donee, creditor or incidental
beneficiary or any affiliate of Borrower.
(c) Modifications. No modification hereof or any agreement
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referred to herein shall be binding or enforceable unless in writing and signed
on behalf of the party against whom enforcement is sought.
(d) Headings. The headings of any paragraph of this Amendment
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are for convenience only and shall not be used to interpret any provision of
this Amendment.
(e) Survival. All warranties, representations and covenants made
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by Borrower herein, or in any agreement referred to herein or on any
certificate, document or other instrument delivered by them or on their behalf
under this Amendment, shall be considered to have been relied upon by Agent and
Lenders. All statements in any such certificate or other instrument shall
constitute warranties and representations by Borrower hereunder. All warranties,
representations, indemnities and covenants made by Borrower hereunder or under
any other agreement or instrument shall be deemed continuing until the
Obligations are indefeasibly paid and satisfied in full.
(f) Further Assurances. The parties hereto shall execute and
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deliver such additional documents and take such additional action, as may be
reasonably necessary or desirable to effectuate the provisions and purposes of
this Amendment.
(g) Successors and Assigns. This Amendment shall inure to the
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benefit of and be binding upon the successors and assigns of each of the parties
hereto. No delegation by Borrower of any duty or obligation of performance may
be made or is intended to be made to Lender.
(h) Governing Law. THIS AMENDMENT AND ALL MATTERS RELATING
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HERETO OR ARISING HEREFROM (WHETHER SOUNDING IN CONTRACT LAW, TORT LAW OR
OTHERWISE), SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES. BORROWER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED WITHIN NEW YORK, STATE OF NEW YORK AND IRREVOCABLY AGREES
THAT, SUBJECT TO AGENT'S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS AMENDMENT SHALL BE LITIGATED IN SUCH COURTS. BORROWER EXPRESSLY
SUBMITS AND CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY
DEFENSE OF FORUM NON CONVENIENS. BORROWER HEREBY WAIVES PERSONAL SERVICE OF ANY
AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON
BORROWER BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO
BORROWER AT THE ADDRESS SET FORTH IN THE CREDIT AGREEMENT AND SERVICE SO MADE
SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED.
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(i) Jury Trial. EACH OF BORROWER, AGENT AND LENDER HEREBY
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IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY. EACH OF BORROWER, AGENT AND LENDER
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH HAS RELIED ON THE WAIVER IN ENTERING INTO THIS
AMENDMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED
FUTURE DEALINGS. EACH OF BORROWER, AGENT AND LENDER WARRANTS AND REPRESENTS THAT
IT HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL, AND
THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned parties have executed this
Amendment the day and year first above written.
BORROWER: ADVANCIS PHARMACEUTICAL CORPORATION
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By: /s/ XXXXXX X. LOW
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Name: Xxxxxx X. Low
Title: Vice President, Finance and Acting
Chief Financial Officer
LENDER AND AGENT: XXXXXXX XXXXX CAPITAL, a division of
Xxxxxxx Xxxxx Business Financial Services
Inc., as Lender and as Agent
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Director
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