EXHIBIT 99.1
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CITIZENS BANK OF MASSACHUSETTS SECOND AMENDMENT TO CREDIT AGREEMENT
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This Second Amendment to Credit Agreement is made as of the 10th day of
April, 2003, by and between the following parties:
Citizens Bank of Massachusetts (the "Bank"), a Massachusetts banking
corporation having a principal place of business at 00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000; and
Able Laboratories, Inc. ( the "Borrower"), a corporation duly
organized and existing under the laws of the State of Delaware and
having its corporate offices and principal place of business at 0
Xxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxxx, Xxx Xxxxxx 00000;
in consideration of the mutual covenants and benefits to be derived herefrom.
W I T N E S S E T H:
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A. On or about October 24, 2002, the Borrower and the Bank entered into
a certain non-restoring equipment loan facility in the maximum principal amount
of Four Million Dollars ($4,000,000.00) (the "Non-Restoring Loan Facility") as
evidenced by, among other things, a certain Credit Agreement (the "Credit
Agreement") and a certain Non-Restoring Credit Facility Note dated October 24,
2002 in the original principal amount of $1,700,000.00 (the "Non-Restoring
Credit Facility Note") and a certain Master Note dated October 24, 2002 in the
maximum principal amount of $2,300,000.00 (the "Original Master Note").
B. The Non-Restoring Loan Facility was increased to an amount up to
Five Million Eight Hundred Thousand Dollars ($5,800,000.00), and the Bank
established a revolving line of credit facility (the "Revolving Credit
Facility") in favor of the Borrower in the maximum principal amount of up to
Four Million Dollars ($4,000,000.00) for the Borrower's working capital needs
including the issuance of standby letters of credit pursuant to, among other
things, a certain First Amendment to Credit Agreement dated February 21, 2003
(the "First Amendment") and the documents executed and delivered in connection
therewith.
C. The Borrower has requested that the Revolving Credit Facility be
increased to an amount up to Five Million Nine Hundred Thousand Dollars
($5,900,000.00), and the Bank is willing to so accommodate the Borrower's
request based upon and subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Borrower and the Bank agree as follows:
1. DEFINITIONS. Capitalized terms used herein without definition and
defined in the Credit Agreement shall have the same respective meanings herein
as therein, unless the context otherwise requires.
2. INCREASE TO THE REVOLVING CREDIT FACILITY. The Bank hereby agrees to
increase the maximum availability under the Revolving Credit Facility from Four
Million Dollars ($4,000,000.00) to Five Million Nine Hundred Thousand Dollars
($5,900,000.00). Specifically, the text "Four Million Dollars ($4,000,000.00) as
contained in fourth and fifth lines of Section 2A.1 of the Credit Agreement is
hereby replaced with the text "Five Million Nine Hundred Thousand Dollars
($5,900,000.00)" being substituted in its place and stead.
3. CONDITIONS TO BANK'S OBLIGATIONS. The willingness of the Bank to
consent to and enter into this Second Amendment is subject to the satisfaction
of the following conditions concurrently with the execution and delivery of this
Second Amendment:
(a) The Bank shall have received approving resolutions adopted by
the Borrower, certified as of the date hereof by the Clerk of the Borrower,
authorizing the execution and delivery by the Borrower of this Second Amendment
and all documents referenced herein.
(b) The Borrower shall execute and deliver an amended and restated
revolving credit promissory note (the "Replacement Note") payable to the Bank in
the maximum restated principal amount of $5,900,000.00, such Replacement Note to
be in the form of EXHIBIT A annexed hereto. The Replacement Note shall amend,
restate and replace the existing Revolving Credit Note dated February 21, 2003
in its entirety, but the Replacement Note shall not be evidence of satisfaction
of the indebtedness owed by the Borrower to the Bank. Further, any and all
references to the "Revolving Credit Note" in the Credit Agreement and ancillary
loan documents shall include and refer to the Replacement Note, as it may be
amended in writing from time to time hereafter.
(c) The Bank shall have received such other documents, certificates,
instruments, and agreements from the Borrower as the Bank may reasonably
request.
(d) The Bank shall have been reimbursed for all costs and expenses
incurred in connection with this Second Amendment including, but not limited to,
attorneys' fees and disbursements.
4. CONFIRMATION OF CERTAIN TERMS AND OTHER MATTERS. The Borrower and
the Bank hereby ratify and confirm all terms and provisions of the Credit
Agreement, as amended, and all other documents, instruments, or agreements
executed in connection therewith and agree that, except as expressly modified
herein, all of such terms and provisions remain in full force and effect. The
Borrower and the Bank hereby confirm and acknowledge that the obligations of the
Borrower under the Credit Agreement include all obligations and liabilities of
the Borrower under the Credit Agreement, as it may be amended from time to time.
5. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants that: (a) except as otherwise disclosed on the list of "Exceptions to
Representations" annexed as
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Exhibit 11 to the First Amendment, as supplemented by EXHIBIT B, annexed hereto,
the representations and warranties contained in Section 4 of the Credit
Agreement are true and correct in all material respects on the date hereof with
the same effect as though such representations and warranties had been made on
the date hereof; (b) it has complied and is now in compliance in all material
respects, with all of the terms and provisions set forth in the Credit
Agreement, as amended, on its part to be observed and performed; (c) no Event of
Default specified in Section 9 of the Credit Agreement has occurred or is
continuing; and (d) the execution, delivery and performance of this Second
Amendment: (i) has been duly authorized by all requisite corporation action,
(ii) will not violate either (x) any provision of law applicable to the
Borrower, any governmental regulation, or its charter or by-laws, or (y) any
order of any court or other agency of government binding on the Borrower or any
indenture, agreement, or other instrument to which the Borrower is a party, or
by which it or any of its property is bound, and (iii) will not be in conflict
with, result in a breach of, or constitute (with due notice and/or lapse of
time) a default under, any such indenture, agreement, or other instrument.
6. MISCELLANEOUS. This Second Amendment may be executed in any number
of counterparts, each of which, when so executed and delivered, shall be an
original, but all of the counterparts taken together shall constitute one and
the same instrument. This Second Amendment shall be governed by the laws of the
Commonwealth of Massachusetts and shall be binding upon and inure to the benefit
of the parties hereto and their successors and permitted assigns.
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IN WITNESS WHEREOF, the parties hereto each have executed this Second
Amendment as a sealed instrument as of the date first written above.
Witness: Able Laboratories, Inc.
/s/ Xxxxxx Xxxxxxxxx By: /s/Xxxxxxxxx X. Xxxxxxx
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Print Name: Xxxxxx Xxxxxxxxx Name: Xxxxxxxxx X. Xxxxxxx
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Title: President
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Witness: Citizens Bank of Massachusetts
By: /s/ Xxxxxxx X. Xxxxxxxx
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Print Name: Name: Xxxxxxx X. Xxxxxxxx
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Title: Vice President
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