November 1, 1999
North American Vaccine, Inc.
00000 Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxx
Chief Executive Officer and President
Re: Revolving Credit Facility
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Ladies/Gentlemen:
BANK OF AMERICA, N.A. ("LENDER") is pleased to make available to NORTH AMERICAN
VACCINE, INC., a Canadian corporation ("BORROWER"), a revolving credit facility
on the terms and subject to the conditions set forth below. Terms not defined
herein have the meanings assigned to them in EXHIBIT A hereto.
1. THE FACILITY.
(a) THE COMMITMENT. Subject to the terms and conditions set forth herein,
Xxxxxx agrees 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$30,000,000 (the
"COMMITMENT"); PROVIDED, HOWEVER, Lender shall not be obligated to
advance Loans in an aggregate principal amount exceeding $5,000,000
until such time as Lender (I) shall have received written evidence
satisfactory to Lender of the approval of the finance committee of
Guarantor to permit Loans in an aggregate amount exceeding $5,000,000
(but in no event greater than the Commitment), (II) shall have been
granted a first priority security interest in the collateral set forth
in SCHEDULE 3(K) attached hereto and (III) shall otherwise comply with
the terms and conditions set forth in PARAGRAPH 2(B) hereof. Subject to
the foregoing limits, Borrower may borrow, repay and reborrow Loans
until the Maturity Date.
(b) BORROWINGS, CONVERSIONS, CONTINUATIONS. Borrower may request that Loans
be (i) made as or converted to Base Rate Loans by irrevocable notice to
be received by Lender not later than 11 a.m. on the Business Day of the
borrowing or conversion, or (ii) made or continued as, or converted to,
Offshore Rate Loans by irrevocable notice to be received by Lender not
later than 11 a.m. three Business Days prior to the Business Day of the
borrowing, continuation or conversion. If Borrower fails to give a
notice of conversion or continuation prior to the end of any Interest
Period in respect of any Offshore Rate Loan, Borrower shall be deemed
to have requested that such Loan be converted to a Base Rate Loan on
the last day of the applicable Interest Period.
Each Offshore Rate Loan shall be in a minimum principal amount of
$1,000,000 or a multiple of $500,000 in excess thereof. Each Base Rate
Loan shall be in a minimum principal amount of $500,000 or a multiple
of $100,000 in excess thereof. There shall not be more than five (5)
different Interest Periods in effect at any time. Notwithstanding the
foregoing, except for the initial Loan, Borrower shall not be permitted
to borrow Loans in an aggregate principal amount in excess of
$2,500,000 during any consecutive fourteen (14) day period (measured on
a rolling fourteen (14) day basis) (unless otherwise consented to in
writing by Guarantor) and only for the purposes set forth in PARAGRAPH
3(F) hereof.
(c) INTEREST. At the option of Borrower, Loans shall bear interest at a
rate per annum equal to (i) the Offshore Rate PLUS .625%; or (ii) the
Base Rate. Interest on Base Rate Loans when the Base Rate is determined
by Xxxxxx's prime rate shall be calculated on the basis of a year of
365 or 366 days and actual days elapsed. All other interest hereunder
shall be calculated on the basis of a year of 360 days and actual days
elapsed.
Borrower promises to pay interest (i) for each Offshore Rate Loan, on
the last day of the applicable Interest Period, and, if the Interest
Period is longer than one month, on the respective dates that fall
every month after the beginning of the Interest Period; (ii) for Base
Rate Loans, on the last Business Day of each calendar month; and (iii)
for all Loans, on the Maturity Date. If the time for any payment is
extended by operation of law or otherwise, interest shall continue to
accrue for such extended period.
After the date any principal amount of any Loan is due and payable
(whether on the maturity date, upon acceleration or otherwise), or
after any other monetary obligation hereunder shall have become due and
payable, Borrower shall pay, but only to the extent permitted by law,
interest (after as well as before judgment) on such amounts at a rate
per annum equal to the Base Rate plus 2%. Such interest shall be
payable on demand.
In no case shall interest hereunder exceed the amount that Lender may
charge or collect under applicable law.
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(d) EVIDENCE OF LOANS. The Loans and all payments thereon shall be
evidenced by Xxxxxx's loan accounts and records; PROVIDED, HOWEVER,
that upon the request of Xxxxxx, the Loans may be evidenced by a grid
promissory note in the form of EXHIBIT B hereto, instead of or in
addition to such loan accounts and records. Such loan accounts, records
and promissory note shall be conclusive absent manifest error of the
amount of the Loans and payments thereon. Any failure to record any
Loan or payment thereon or any error in doing so shall not limit or
otherwise affect the obligation of Borrower to pay any amount owing
with respect to the Loans.
(e) FEES. Xxxxxxxx promises to pay the following fees in accordance with
the terms hereof:
(i) STRUCTURING FEE. Borrower shall pay to Lender a fee (the
"STRUCTURING FEE") in accordance with the terms and conditions of that
certain letter agreement dated as of November 1, 1999 among Borrower,
Guarantor and Lender. The Structuring Fee shall be due and payable to
Lender upon the execution and delivery of this Agreement and shall be
non-refundable once paid.
(ii) COMMITMENT FEE. Borrower shall pay to Lender a commitment fee (the
"COMMITMENT FEE") of .25% per annum on the daily unused portion of the
Commitment, payable in arrears on the last Business Day of each
calendar month and on the Maturity Date, and calculated on the basis on
a year of 360 days and actual days elapsed; provided that Borrower
shall not be obligated to pay the Commitment Fee with respect to the
portion of the Commitment that is not available (in accordance with the
terms of PARAGRAPH 1(A) hereof) for borrowing by Borrower.
(f) REPAYMENT. Xxxxxxxx promises to pay all Loans then outstanding on the
Maturity Date, unless earlier accelerated in accordance with the terms
of this Agreement.
Borrower shall make all payments required hereunder not later than 1
p.m. on the date of payment in same day funds in United States Dollars
at the office of Lender located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000 or such other address as Lender may from time to
time designate in writing.
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All payments by Borrower to Lender hereunder shall be made to Lender in
full without set-off or counterclaim and free and clear of and exempt
from, and without deduction or withholding for or on account of, any
present or future taxes, levies, imposts, duties or charges of
whatsoever nature imposed by any government or any political
subdivision or taxing authority thereof. If any taxes are required to
be withheld or deducted from any amount payable under this Agreement or
the Note (if any), then the amount payable under this Agreement or such
Note shall be increased to the amount which, after deduction from such
increased amount of all taxes required to be withheld or deducted
therefrom, will yield to Lender the amount stated to be payable under
this Agreement or such Note. Borrower shall reimburse Lender for any
taxes imposed on or withheld from such payments and paid by Xxxxxx
(other than taxes imposed on Lender's income, and franchise taxes
imposed on Lender, by the jurisdiction under the laws of which Xxxxxx
is organized or any political subdivision thereof) not later than 10
days after written demand by Xxxxxx, and Borrower shall be responsible
for any interest, penalties and expenses incurred by Lender in
connection with the collection of such amounts.
(g) PREPAYMENTS. Borrower may, upon three Business Days' notice, in the
case of Offshore Rate Loans, and upon same-day notice in the case of
Base Rate Loans, prepay Loans on any Business Day; PROVIDED that
Borrower pays all Breakage Costs (if any) associated with such
prepayment on the date of such prepayment. Prepayments of Offshore Rate
Loans 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.
(h) COMMITMENT REDUCTIONS. Borrower may, upon five Business Days' notice,
reduce or cancel the undrawn portion of the Commitment, PROVIDED, that
the amount of such reduction is not less than $500,000 or a whole
multiple thereof.
2. (a) CONDITIONS PRECEDENT TO INITIAL LOAN. As a condition precedent to the
initial Loan hereunder (which such amount shall not exceed
US$5,000,000), Lender must receive the following from or on behalf of
Borrower and/or Guarantor in form satisfactory to Lender and Guarantor
(provided that with respect to items delivered by Guarantor to Lender,
such items need only be satisfactory to Lender in its discretion):
(i) the enclosed duplicate of this Agreement duly executed and
delivered on behalf of Xxxxxxxx;
(ii) (A) the Security Agreement and the IP Security Agreement, each
xxxx executed and delivered on behalf of Xxxxxxxx to Xxxxxx and
(I) UCC financing statements executed on behalf of Xxxxxxxx to
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Lender for each appropriate jurisdiction as is necessary, in
Lender's and Guarantor's discretion, to perfect its security
interest in such collateral and/or (II) such
patent/trademark/copyright filings executed on behalf of Borrower
to be made with the United States Patent and Trademark Office as
requested by Xxxxxx in order to perfect Xxxxxx's security
interest in such collateral and (B) a security agreement and
intellectual property security agreement executed and delivered
on behalf of Borrower to Guarantor in consideration of Borrower's
obligations under the Reimbursement Agreement and (I) UCC
financing statements executed on behalf of Borrower to Guarantor
for each appropriate jurisdiction as is necessary, in Guarantor's
discretion, to perfect its security interest in such collateral
and/or (II) such patent/trademark/copyright filings executed on
behalf of Borrower to be made with the United States Patent and
Trademark Office as requested by Guarantor in order to perfect
Guarantor's security interest in such collateral;
(iii) legal documentation deemed necessary or appropriate by Xxxxxx and
Guarantor under Canadian law to pledge Borrower's interest with
respect to the collateral described in the Security Agreement and
the IP Security Agreement;
(iv) the Guaranty duly executed and delivered on behalf of Xxxxxxxxx;
(v) the Reimbursement Agreement duly executed and delivered on behalf
of Xxxxxxxx;
(vi) a favorable legal opinion of (A) U.S. counsel(s) to Borrower
acceptable to Xxxxxx and Guarantor regarding, but not limited to,
the due authorization, execution, delivery and enforceability of
this Agreement and the perfection of the security interests
granted to Lender by the Security Agreement and the IP Security
Agreement and (B) Canadian counsel to Borrower acceptable to
Xxxxxx and Guarantor regarding, but not limited to, the due
authorization, execution, delivery and enforceability of the
Canadian collateral documents and the perfection of the security
interests granted thereunder;
(vii) the execution and delivery of that certain letter agreement dated
as of November 1, 1999 among Xxxxxxxx, Guarantor and Xxxxxx and
the payment of the fees referenced therein;
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(viii) the execution and delivery of that certain letter agreement
between Xxxxxxxx and Guarantor regarding the payment by Borrower
of certain break-up fees;
(ix) a copy of (A) the articles of incorporation (or other charter
documents) and bylaws of Borrower certified by a secretary or
assistant secretary of Borrower to be true and correct as of the
Closing Date and (B) the articles of incorporation (or other
charter documents) and bylaws of Guarantor certified by a
secretary or assistant secretary of Guarantor to be true and
correct as of the Closing Date;
(x) a certified borrowing resolution or other evidence of Xxxxxxxx's
authority to borrow hereunder;
(xi) a certified resolution or other evidence of Guarantor's\
authority to deliver the Guaranty;
(xii) a certificate of incumbency for each of Borrower and Guarantor;
(xiii) a certificate of good standing, existence or its equivalent with
respect to each of Borrower and Guarantor certified as of a
recent date by the appropriate governmental authorities of the
state or other jurisdiction of incorporation and each other
jurisdiction in which the failure to so qualify and be in good
standing would have a Material Adverse Effect;
(xiv) if requested by Xxxxxx, a promissory note as contemplated in
PARAGRAPH 1(D) above;
(xv) receipt of (A) audited consolidated balance sheet and statements
of earnings and cash flow of Borrower and its Subsidiaries as of
December 31, 1998 and (B) unaudited consolidated balance sheet
and statements of earnings and cash flow of Borrower and its
Subsidiaries for the fiscal quarters ending March 31, 1999 and
June 30, 1999, respectively;
(xvi) receipt of copies of (A) the Royal Bank of Canada Credit
Facility certified by an officer of Borrower to be a true and
accurate copy and (B) each other credit agreement of Borrower
and/or its Subsidiaries evidencing liabilities, in each case, of
Borrower and/or its Subsidiaries in excess of $1,000,000; and
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(xvii) such other documents as Lender or Guarantor may reasonably
request.
(b) CONDITIONS PRECEDENT TO SECOND BORROWING. As a condition precedent to
the second borrowing under this Agreement (which such second borrowing
shall not exceed U.S. $25,000,000 and together with the initial Loan
shall not exceed in the aggregate U.S. $30,000,000), Lender must
receive the following from or on behalf of Borrower and/or Guarantor in
form satisfactory to Lender and Guarantor (provided that with respect
to items delivered by Guarantor to Lender, such items need only be
satisfactory to Lender in its discretion):
(i) written evidence satisfactory to Lender of the approval of the
finance committee of Guarantor to permit Loans in an aggregate
amount exceeding $5,000,000;
(ii) (A) Borrower shall have granted to Lender a first priority
security interest in additional unencumbered collateral existing
at such time which is reasonably satisfactory to Lender and
Guarantor and Borrower shall have executed and delivered (I) all
necessary documents to be filed with the U.S. Patent and
Trademark Office and other appropriate filing locations and (II)
all UCC financing statements for each appropriate jurisdiction as
deemed necessary by Xxxxxx and Guarantor, in Lender's and
Guarantor's discretion, to Lender or its designee for filing with
the appropriate offices and (B) Borrower shall have granted to
Guarantor a security interest in the additional collateral
referred to in subsection (A) above and Borrower shall have
executed and delivered (I) all necessary documents to be filed
with the U.S. Patent and Trademark Office and other appropriate
filing locations and (II) all UCC financing statements for each
appropriate jurisdiction as deemed necessary by Xxxxxx and
Guarantor, in Xxxxxx's and Guarantor's discretion, to Guarantor
or its designee for filing with the appropriate offices; and
(iii) a legal opinion of counsel(s) to Borrower acceptable to Xxxxxx
and Guarantor regarding, but not limited to, the due
authorization, execution, delivery and enforceability of such
documents related to the additional collateral;
(iv) an officer's certificate of Xxxxxxxx stating that all
representations and warranties set forth in PARAGRAPH 3 continue
to be true and correct in all material respects as of the date of
such borrowing and that no Default or Event of Default shall have
occurred and be continuing on the date of such borrowing;
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(v) the North American Vaccine Acquisition Agreement shall have been
executed and delivered on or before November 16, 1999;
(vi) no Material Adverse Change shall have occurred since the Closing
Date; and
(vii) such other documents, filings or opinions as Lender or Guarantor
may reasonably request.
(c) CONDITIONS TO EACH BORROWING, CONTINUATION AND CONVERSION. As a
condition precedent to each borrowing (including the initial
borrowing), conversion and continuation of any Loan:
(i) Borrower must furnish Lender and Guarantor with, as appropriate,
a notice of borrowing, conversion or continuation;
(ii) each representation and warranty set forth in PARAGRAPH 3 below
shall be true and correct in all material respects as if made on
the date of such borrowing, continuation or conversion; and
(iii) no Default or Event of Default shall have occurred and be
continuing on the date of such borrowing, continuation or
conversion.
Each notice of borrowing and notice of conversion or continuation
shall be deemed a representation and warranty by Borrower that
the conditions referred to in clauses (ii) and (iii) above have
been met.
3. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to the
Lender that:
(a) EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS. It is a
corporation duly organized or formed, validly existing and in good
standing under the laws of Canada, has the power and authority and the
legal right to own and operate its properties, to lease the properties
it operates and to conduct its business, is duly qualified and in good
standing under the laws of each jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires such
qualification, and is in compliance with all laws except to the extent
that noncompliance does not have a Material Adverse Effect.
(b) POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The execution, delivery
and performance of this Agreement and the other Loan Documents by
Borrower are within its powers and have been duly authorized by all
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necessary action, and this Agreement is and the other Loan Documents,
when executed, will be, legal, valid and binding obligations of
Borrower, enforceable in accordance with their respective terms, except
as the enforceability thereof may be limited by applicable Debtor
Relief Laws and general principles of equity. The execution, delivery
and performance of this Agreement and the other Loan Documents are not
in contravention of law or of the terms of Borrower's organic documents
and will not result in the breach of or constitute a default under, or
result in the creation of a lien under any indenture, agreement or
undertaking to which Borrower is a party or by which it or its property
may be bound or affected.
(c) FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT. (I) The audited
consolidated balance sheet and statements of earnings and cash flow of
Borrower and its Subsidiaries for the fiscal year ended as of December
31, 1998 have heretofore been furnished to Lender and filed with
Xxxxxxxx's Form 10-K for the fiscal year then ended. The unaudited
consolidated balance sheet and statements of earnings and cash flows
for the fiscal quarters ending March 31, 1999 and June 30, 1999,
respectively, have heretofore been furnished to Lender and filed with
Borrower's Form 10-Q for such quarters. The financial statements for
Xxxxxxxx's fiscal quarter ending June 30, 1999 (excluding any
amendments, restatements or subsequent filings with respect thereto)
present fairly the consolidated financial condition of Borrower and its
Subsidiaries as of June 30, 1999, and since June 30, 1999 there has
been no event or circumstance that has a Material Adverse Effect,
except as has been publicly disclosed by Borrower prior to the date
hereof or except as set forth in Schedule 3(c). All of the foregoing
historical financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied except as
disclosed in the notes thereto.
(II) On and as of the Closing Date, the Projections delivered to the
Lender have been prepared in good faith and are based on reasonable
assumptions, and there are no statements, calculations or conclusions
in the Projections which are based upon or include information known to
Borrower to be misleading in any material respect or which fail to take
into account material information known to Borrower regarding the
matters reported therein. On the Closing Date, Xxxxxxxx believes that
the Projections are reasonable.
(d) NO MATERIAL LITIGATION. Except as set forth in SCHEDULE 3(D) hereof, no
litigation or governmental proceeding is pending or, to the best
knowledge of Borrower, threatened by or against Borrower which, if
adversely determined, has a Material Adverse Effect.
(e) NO DEFAULT. No Default or Event of Default has occurred and is
continuing.
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(f) USE OF PROCEEDS. The proceeds of the Loans will be used solely for
working capital purposes of Borrower (and in any event in accordance
with the restrictions set forth in Section 4(c) hereof) and not for any
other purposes except as set forth in SCHEDULE 3(F) hereto.
(g) ERISA. Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code, and other Federal or state
law, including all requirements under the Code or ERISA for filing
reports, and benefits have been paid in accordance with the provisions
of such Plan except where the failure to be in compliance in all
material respects does not have a Material Adverse Effect.
(h) ENVIRONMENTAL MATTERS. All facilities owned or leased by Borrower or
its Subsidiaries have been and continue to be in material compliance
with all material environmental laws and regulations.
(i) YEAR 2000. Borrower has (i) initiated a review and assessment of all
areas within its and each of its Subsidiaries' business and operations
(including those affected by customers and vendors) that could be
adversely affected by the "Year 2000 Problem" (that is, the risk that
computer applications and devices containing imbedded computer chips
used by Borrower or any of its Subsidiaries (or their respective
customers and vendors) may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to and any date
after December 31, 1999), (ii) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented that plan in accordance with that timetable. Based on the
foregoing, Xxxxxxxx believes that all computer applications and devices
containing imbedded computer chips (including those of its and its
Subsidiaries' customers and vendors) that are material to its or any of
its Subsidiaries' business and operations are reasonably expected on a
timely basis to be able to perform properly date-sensitive functions
for all dates before and after January 1, 2000 (that is, be "Year 2000
compliant"), except to the extent that a failure to do so does not have
a Material Adverse Effect.
(j) FULL DISCLOSURE. No written statement made by Borrower to Lender in
connection with this Agreement, or in connection with any Loan,
contains any untrue statement of a material fact or omits a material
fact necessary to make the statement made not misleading.
(k) INTELLECTUAL PROPERTY. Borrower owns, or has the legal right to use,
all trademarks, tradenames, copyrights, technology, know-how and
processes (the "INTELLECTUAL PROPERTY") necessary for it to conduct its
business as currently conducted, except for such Intellectual Property
for which the failure to own or have the legal right to use could not
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have a Material Adverse Effect. Set forth on SCHEDULE 3(K) is a list of
all Intellectual Property that Borrower is pledging as collateral on
the Closing Date. Except as provided on SCHEDULE 3(K), no claim has
been asserted and is pending by any Person challenging or questioning
the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does Borrower have
knowledge of any such claim, and the use of such Intellectual Property
by Borrower does not infringe on the rights of any Person, except for
such claims and infringements that, in the aggregate, could not have a
Material Adverse Effect.
(l) NO OTHER LIENS. Other than as disclosed in SCHEDULE 3(K) or otherwise
disclosed in writing to Lender and Guarantor, with respect to the
"Collateral" (as defined in the Security Agreement) and the "Intellectual
Property Collateral" (as defined in the IP Security Agreement), Borrower has
not assigned rights of payment in or otherwise granted a security interest
with respect to such rights or collateral to any other Person.
4. COVENANTS. So long as principal of and interest on any Loan or any
other amount payable hereunder or under any other Loan Document remains
unpaid or unsatisfied and the Commitment has not been terminated:
(a) INFORMATION. Borrower shall deliver to Lender:
(i) (A) as soon as available and in any event within 90 days
after the end of each fiscal year of Borrower a consolidated
balance sheet of Borrower and its Subsidiaries as of the end of
such fiscal year and the related consolidated statements of
income and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal
year, all prepared in accordance with generally accepted
accounting principles applied on a consistent basis and certified
by independent public accountants of nationally recognized
standing and (B) as soon as available and in any event within 30
days after the end of each fiscal year of Borrower a preliminary
consolidated balance sheet of Borrower and its Subsidiaries as of
the end of such fiscal year and the related preliminary
consolidated statements of income and cash flows for such fiscal
year, setting forth in each case in comparative form figures for
(I) Borrower's previous fiscal year and (II) the projected budget
for the fiscal year then ended, all in reasonable detail and duly
certified (subject to normal year-end adjustments) by the chief
financial officer of Xxxxxxxx as having been prepared in
accordance with generally accepted accounting principles applied
on a consistent basis, and, in addition to the preliminary
statements required to be delivered pursuant to (B) above,
Borrower shall provide to Lender any changes or
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modifications (if any) to such preliminary financial statements
every two weeks after the initial delivery of such preliminary
statements;
(ii) (A) as soon as available and in any event within 30 days
after the end of each of the first three quarters of each fiscal
year of Borrower, a consolidated balance sheet of Borrower and
its Subsidiaries as of the end of such quarter and the related
consolidated statements of income and cash flows for such quarter
and for the portion of Borrower's fiscal year ended at the end of
such quarter, setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding
portion of Borrower's previous fiscal year, all in reasonable
detail and duly certified (subject to normal year-end
adjustments) by the chief financial officer of Borrower as having
been prepared in accordance with generally accepted accounting
principles applied on a consistent basis and (B) as soon as
available and in any event within 15 days after the end of each
of the first three fiscal quarters of each fiscal year of
Borrower a preliminary consolidated balance sheet of Borrower and
its Subsidiaries as of the end of such quarter and related
preliminary consolidated statements of income and cash flow for
such quarter then ended;
(iii) as soon as available and in any event within 20 days after
the end of each month (except the final month of its fiscal
year), a copy of the unaudited consolidated balance sheet of
Borrower and its Subsidiaries and the related consolidated
statements of income and cash flows for such month, setting forth
in each case in comparative form the figures for (A) the
corresponding month of Borrower's previous fiscal year and (B)
the projected budget for the month then ended, all in reasonable
detail and duly certified (subject to normal year-end
adjustments) by the chief financial officer of Xxxxxxxx as having
been prepared in accordance with generally accepted accounting
principles applied on a consistent basis;
(iv) within 20 days after the end of each month (except the final
month of its fiscal year), a certificate of Borrower certified by
the chief financial officer of Borrower that (A) each of the
representations and warranties set forth in PARAGRAPH 3 hereof
are true and accurate as of the end of such fiscal month and (B)
no Default or Event of Default shall have occurred and be
continuing as of the end of such fiscal month;
(v) promptly upon transmission or receipt thereof, (A) complete
copies of any filings and registrations with, and reports
(special or otherwise) to or from, the Securities and
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Exchange Commission or any successor agency, (B) proxy
statements, notices and reports that Xxxxxxxx sends to its
shareholders and (C) copies of all press releases issued by
Xxxxxxxx;
(v) promptly upon Xxxxxxxx's obtaining knowledge of any Default or
Event of Default, a certificate of the chief financial officer of
Borrower setting forth the details thereof and any action that
Xxxxxxxx is taking or proposes to take with respect thereto; and
(vi) from time to time such additional information regarding the
financial condition or business of Borrower and its Subsidiaries
as Lender may reasonably request.
(b) OTHER AFFIRMATIVE COVENANTS. Borrower shall, and shall cause each
of its Subsidiaries to:
(i) preserve and maintain all of its rights, privileges, and
franchises necessary or desirable in the normal conduct of
its business;
(ii) comply with the requirements of all applicable laws, rules,
regulations, and orders of governmental authorities the
violation of which could result in a Material Adverse Effect;
(iii) pay and discharge when due all taxes, assessments, and
governmental charges or levies imposed on it or on its income
or profits or any of its property, except for any such tax,
assessment, charge, or levy the payment of which is being
contested in good faith and by proper proceedings and against
which adequate reserves are being maintained;
(iv) maintain all of its properties owned or used in its business
in good working order and condition ordinary wear and tear
excepted;
(v) permit representatives of Lender, during normal business
hours and upon reasonable notice, to examine, copy, and make
extracts from its books and records, to inspect its
properties, and to discuss its business and affairs with its
officers, directors, and accountants;
(vi) cause (A) all of its Intellectual Property set forth on
SCHEDULE 3(K) and (B) all of its receivables and other
collateral subject to the Security Agreement to be subject at
all times to first priority, perfected Liens in favor of
Lender to secure the obligations under this Agreement
pursuant to the terms and conditions of the IP Security
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Agreement and the Security Agreement. Borrower shall promptly
notify Lender of the acquisition of any Intellectual Property
subsequent to the Closing Date; and
(vii) maintain insurance in such amounts, with such deductibles,
and against such risks as is customary for similarly situated
businesses.
(c) NEGATIVE COVENANTS. Borrower shall not, nor shall it permit any
of its Subsidiaries to:
(i) INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, EXCEPT: (A) Indebtedness under the Loan
Documents and (B) Indebtedness outstanding on the date
hereof and listed on SCHEDULE 4(C)(I); provided that from
and after the date of this Agreement, in no event shall
Borrower or its Subsidiaries be permitted to make any
additional borrowings under the Royal Bank of Canada Credit
Facility (not to include conversions or continuations of
existing borrowed amounts).
(ii) LIENS AND NEGATIVE PLEDGES. Incur, assume or suffer to
exist, any Lien or Negative Pledge upon any of its property,
assets or revenues, whether now owned or hereafter acquired,
EXCEPT Liens and Negative Pledges existing on the date
hereof and listed on SCHEDULE 4(C)(II).
(iii) FUNDAMENTAL CHANGES. Except as provided for or contemplated
under the North America Vaccine Acquisition Agreement, merge
or consolidate with or into any Person or enter into any
other agreement contemplating a merger, consolidation or
disposition of all or substantially all of its assets with
any other Person (other than Guarantor or any Affiliate of
Guarantor) or liquidate, wind-up or dissolve itself, or
permit or suffer any liquidation or dissolution or use the
proceeds of any Loan in connection with any merger or
acquisition of assets.
(iv) DISPOSITIONS. Make any Dispositions, other than (A)
Dispositions of inventory and (B) other than Dispositions in
the ordinary course of Borrower's business and in amounts
not to exceed $25,000 for any single Disposition.
(v) INVESTMENTS. Make any Investments.
(vi) LEASE OBLIGATIONS. Create or suffer to exist any obligations
for the payment of rent for any property under lease or
agreement to lease, EXCEPT leases in existence on the date
hereof and any renewal, extension or refinancing thereof
-14-
provided that the rental payments or financed amount with
respect to such lease does not increase.
(vii) RESTRICTED PAYMENTS. Make any Restricted Payments or
otherwise prepay any obligations or liabilities (whether in
the ordinary course or otherwise).
(viii) ERISA. At any time engage in a transaction which could be
subject to Sections 4069 or 4212(c) of ERISA, or permit any
Pension Plan to (a) engage in any non-exempt "prohibited
transaction" (as defined in Section 4975 of the Code); (b)
fail to comply with ERISA or any other applicable Laws; or
(c) incur any material "accumulated funding deficiency" (as
defined in Section 302 of ERISA), which, with respect to
each event listed above, has a Material Adverse Effect.
(ix) CHANGE IN NATURE OF BUSINESS. Make any change in the nature
of the business of Borrower or its Subsidiaries as conducted
and as proposed to be conducted as of the date hereof.
(x) TRANSACTIONS WITH AFFILIATES. Enter into any transaction of
any kind with any Affiliate of Borrower other than
arm's-length transactions with Affiliates that are otherwise
permitted hereunder.
(xi) CAPITAL EXPENDITURES. Except as set forth in SCHEDULE 3(f)
hereto, mmake, or become legally obligated to make, any
capital expenditure in excess of $100,000 from the Closing
Date to and including the Maturity Date.
(xii) CHANGE IN AUDITORS. Change the certified public accountants
auditing the books of Borrower without the consent of
Xxxxxx.
5. EVENTS OF DEFAULT. The following are "EVENTS OF DEFAULT" hereunder:
(a) Borrower fails to pay any principal of any Loan as and on the date when
due; or
(b) Borrower fails to pay any interest on any Loan, or any commitment fees
due hereunder, or any portion thereof, within three days after the date
when due; or Borrower fails to pay any other fees or amount payable to
Lender under any Loan Document, or any portion thereof, within five days
after the date due; or
(c) Any default occurs in the observance or performance of any agreement
contained in PARAGRAPH 4(a) or 4(c) hereof; or
(d) Borrower fails to perform or observe any other covenant or agreement
(not specified above) contained in any Loan Document on its part to be
performed or observed and such failure continues for 10 days; or
-15-
(e) Any representation or warranty in any Loan Document or in any
certificate, agreement, instrument or other document made or delivered
by Borrower pursuant to or in connection with any Loan Document proves
to have been incorrect when made or deemed made; or
(f) Borrower (i) defaults in any payment when due of principal of or
interest on any indebtedness (other than indebtedness hereunder), or
(ii) defaults in the observance or performance of any other agreement or
condition relating to any indebtedness (other than indebtedness
hereunder) or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur, the effect
of which default or other event is to cause, or to permit the holder or
holders of such indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, indebtedness having an aggregate principal
amount in excess of $100,000 to be demanded or become due (automatically
or otherwise) prior to its stated maturity, or any guaranty obligation
in such amount to become payable, or Borrower is unable or admits in
writing its inability to pay its debts as they mature; or
(g) Any Loan Document, at any time after its execution and delivery and for
any reason other than the agreement of Lender or satisfaction in full of
all the indebtedness hereunder, ceases to be in full force and effect or
to give Lender the Liens, rights, powers and privileges purported to be
created thereby, or any Loan Document is declared by a court of
competent jurisdiction to be null and void, invalid or unenforceable in
any respect; or Borrower denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate or
rescind any Loan Document; or
(h) The Guaranty or any provision thereof shall cease to be in full force
and effect or Guarantor or any Person acting by or on behalf of
Guarantor shall deny or disaffirm Guarantor's obligations under the
Guaranty, or Guarantor shall otherwise default in the due performance or
observance of any term, covenant or agreement on its part to be
performed or observed pursuant to the Guaranty, including without
limitation the occurrence of any Guaranty Event of Default; or
(i) A final judgment against Xxxxxxxx is entered for the payment of money in
excess of $100,000 and such judgment remains unsatisfied without
procurement of a stay of execution within 10 calendar days after the
date of entry of judgment; or
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(j) Borrower or any of its Subsidiaries institutes or consents to the
institution of any proceeding under Debtor Relief Laws, or makes an
assignment for the benefit of creditors; or applies for or consents to
the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any
material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed
without the application or consent of Borrower or such Subsidiary; or
any proceeding under Debtor Relief Laws relating to Borrower or any
Subsidiary or to all or any part of Borrower's or such Subsidiary's
property is instituted without the consent of Borrower or such
Subsidiary, or an order for relief is entered in any such proceeding; or
(k) Any event occurs which has a Material Adverse Effect; or
(l) An "Event of Default" (as such term is defined in the Royal Bank of
Canada Credit Facility) occurs under the Royal Bank of Canada Credit
Facility; or
(m) The North American Vaccine Acquisition Agreement shall not be executed
by the Borrower and Guarantor on or prior to November 16, 1999 or the
North American Vaccine Acquisition shall be unwound, reversed or
otherwise rescinded in whole or in any material part for any reason or
the North American Vaccine Acquisition Agreement or any letter of intent
associated therewith shall be terminated by any party thereto; or
(n) An "Event of Default" (as such term is defined in (x) that certain
Indenture dated as of May 7, 1996 between Borrower and Marine Midland
Bank (the "MARINE MIDLAND INDENTURE"), or (y) that certain Indenture
dated November 12, 1998, between Borrower and Bankers Trust Company (the
"BT Indenture")) occurs under the Marine Midland Indenture or the BT
Indenture; or
(o) Any Change of Control.
Upon the occurrence of an Event of Default, Xxxxxx may declare the Commitment
to be terminated, whereupon the Commitment shall be terminated, and/or
declare all sums outstanding hereunder and under the other Loan Documents to
be immediately due and payable, together with all interest thereon, without
notice of default, presentment or demand for payment, protest or notice of
nonpayment or dishonor, or other notices or demands of any kind or character,
all of which are hereby expressly waived; PROVIDED, HOWEVER, that upon the
occurrence of any event specified in Paragraph 5(j) above, the Commitment
shall automatically terminate, and all sums outstanding hereunder and under
each other Loan Document shall become immediately due and payable, together
with all interest thereon, without notice of default, presentment or demand
-17-
for payment, protest or notice of nonpayment or dishonor, or other notices or
demands of any kind or character, all of which are hereby expressly waived.
6. MISCELLANEOUS.
(a) All financial computations required under this Agreement shall be made,
and all financial information required under this Agreement shall be
prepared, in accordance with generally accepted accounting principles
consistently applied.
(b) All references herein and in the other Loan Documents to any time of
day shall mean the local (standard or daylight, as in effect) time of
Charlotte, North Carolina.
(c) All Breakage Costs shall be for the account of Borrower.
(d) If at any time Lender, in its sole discretion, determines that (i)
deposits in the amount of any requested Offshore Rate Loan for any
requested Interest Period are not available to Lender in the offshore
dollar interbank market, or (ii) the Offshore Rate does not accurately
reflect the funding cost to Lender of lending such Loans, Lender's
obligation to make Offshore Rate Loans shall cease for the period
during which such circumstance exists.
(e) Borrower shall reimburse or compensate Lender, upon demand, for all
costs incurred, losses suffered or payments made by Lender which are
applied or reasonably allocated by Lender to the transactions
contemplated herein (all as determined by Lender in its reasonable
discretion) by reason of any and all future reserve, deposit, capital
adequacy or similar requirements against (or against any class of or
change in or in the amount of) assets, liabilities or commitments of,
or extensions of credit by, Lender; and compliance by Lender with any
directive, or requirements from any regulatory authority, whether or
not having the force of law.
(f) No amendment or waiver of any provision of this Agreement or of any
other Loan Document and no consent by Lender to any departure therefrom
by Borrower shall be effective unless such amendment, waiver or consent
shall be in writing and signed by a duly authorized officer of Lender,
and any such amendment, waiver or consent shall then be effective only
for the period and on the conditions and for the specific instance
specified in such writing. No failure or delay by Xxxxxx in exercising
any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other rights,
power or privilege.
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(g) Except as otherwise expressly provided herein, notices and other
communications to each party provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, mailed or
sent by telecopy or electronic mail to the address set forth on the
signature page hereto or as otherwise provided in writing from time to
time by such party. Any such notice or other communication sent by
overnight courier service, mail or telecopy shall be effective on the
earlier of actual receipt and (i) if sent by overnight courier service,
the scheduled delivery date, (ii) if sent by mail, the fourth Business
Day after deposit in the U.S. mail first class postage prepaid, and
(iii) if sent by telecopy, when transmission in legible form is
complete. All notices and other communications sent by the other means
listed in the first sentence of this paragraph shall be effective upon
receipt. Notwithstanding anything to the contrary contained herein, all
notices (by whatever means) to Lender pursuant to PARAGRAPH 1(B) hereof
shall be effective only upon receipt.
(h) This Agreement shall inure to the benefit of the parties hereto and
their respective successors and assigns, except that Borrower may not
assign its rights and obligations hereunder. XXXXXX MAY AT ANY TIME (I)
ASSIGN ALL OR ANY PART OF ITS RIGHTS AND OBLIGATIONS HEREUNDER TO ANY
OTHER PERSON WITH THE CONSENT OF BORROWER, SUCH CONSENT NOT TO BE
UNREASONABLY WITHHELD, PROVIDED BORROWER HEREBY SPECIFICALLY
ACKNOWLEDGES AND AGREES THAT NO SUCH CONSENT SHALL BE REQUIRED IF THE
ASSIGNMENT IS TO (A) AN AFFILIATE OF LENDER, (B) GUARANTOR OR (C) IF A
DEFAULT OR EVENT OF DEFAULT EXISTS, AND (II) GRANT TO ANY OTHER PERSON
PARTICIPATING INTERESTS IN ALL OR PART OF ITS RIGHTS AND OBLIGATIONS
HEREUNDER WITHOUT NOTICE TO BORROWER. Xxxxxxxx agrees to execute any
documents reasonably requested by Xxxxxx in connection with any such
assignment. All information provided by or on behalf of Borrower to
Lender or its affiliates may be furnished by Lender to its affiliates
and to any actual or proposed assignee or participant.
(i) Borrower shall pay Lender, on demand, all reasonable out-of-pocket
expenses and legal fees (including the allocated costs for in-house
legal services) incurred by Lender in connection with the enforcement
of this Agreement or any instruments or agreements executed in
connection herewith.
(j) If any provision of this Agreement or any other Loan Document shall be
held invalid or unenforceable in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof or
thereof. This Agreement supersedes all prior agreements and oral
negotiations with respect to the subject matter hereof.
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(k) This Agreement may be executed in one or more counterparts, and each
counterpart, when so executed, shall be deemed an original but all such
counterparts shall constitute but one and the same instrument.
(l) This Agreement and the other Loan Documents are governed by, and shall
be construed in accordance with, the laws of the State of New York and
the applicable laws of the United States of America. Borrower hereby
submits to the nonexclusive jurisdiction of the United States District
Court and each state court in the City of New York for the purposes of
all legal proceedings arising out of or relating to any of the Loan
Documents or the transactions contemplated thereby. Borrower
irrevocably consents to the service of any and all process in any such
action or proceeding by the mailing of copies of such process to
Borrower at its address set forth beneath its signature hereto.
Borrower irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an
inconvenient forum.
(m) XXXXXXXX AND XXXXXX EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY
JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR
RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
(n) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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Please indicate your acceptance of the Commitment on the foregoing terms and
conditions by returning an executed copy of this Agreement to the undersigned
not later than November 1, 1999.
BANK OF AMERICA, N.A.
By:/s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
Notice Address:
Bank of America Center
000 Xxxxxxxxx Xxxxxx, XX0-213-08-10
Houston, Texas 77002-2700
Attention: Xxxxxxxx X. Xxxxxx
Vice President
Fax No.: 000-000-0000
ACCEPTED AND AGREED TO:
NORTH AMERICAN VACCINE, INC.
By: /s/ Xxxxxx Xxxxx
-------------------------------
Name: Xxxxxx Xxxxx, Ph.D.
-------------------------------
Title: Chief Executive Officer & President
-----------------------------------
Date: November 1, 1999
Notice Address:
00000 Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Vice-President
Fax No.: (000) 000-0000
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EXHIBIT A
DEFINITIONS
Affiliate: Any Person directly or indirectly controlling, controlled by,
or under direct or indirect common control with, Borrower. A
Person shall be deemed to be "controlled by" any other Person
if such other Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of
directors or managing general partners; or (b) to direct or
cause the direction of the management and policies of such
Person whether by contract or otherwise.
Agreement: This letter agreement, as amended, restated, extended,
supplemented or otherwise modified in writing from time to
time.
Base Rate: A fluctuating rate per annum equal to the higher of (a) the
Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
publicly announced from time to time by Xxxxxx as its prime
rate. The Lender's prime rate is a rate set by Lender based
upon various factors including Xxxxxx's costs and desired
return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any change in
the prime rate announced by Xxxxxx shall take effect at the
opening of business on the day specified in the public
announcement of such change.
Base Rate Loan: A Loan bearing interest based on the Base Rate.
Breakage Costs: Any loss, cost or expense incurred by Lender (including any
loss of anticipated profits and any loss or expense arising
from the liquidation or reemployment of funds obtained by
Lender to maintain the relevant Offshore Rate Loan or from fees
payable to terminate the deposits from which such funds were
obtained) as a result of (i) any continuation, conversion,
payment or prepayment of any Offshore Rate Loan on a day other
than the last day of the Interest Period therefor (whether
voluntary, mandatory, automatic, by reason of acceleration, or
otherwise); or (ii) any failure by Borrower (for a reason other
than the failure of Lender to make a Loan when all conditions
to making such Loan have been met by Borrower in accordance
with the terms hereof) to prepay, borrow, continue or convert
any Offshore Rate Loan on a date or in the amount notified by
A-1
Borrower. The certificate of Lender as to its costs of funds,
losses and expenses incurred shall be conclusive absent
manifest error.
Business Day: Any day other than a Saturday, Sunday, or other day on which
commercial banks are authorized to close under the laws of, or
are in fact closed in, the State of North Carolina where
Xxxxxx's lending office is located 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.
Change of
Control: Any of the following events: (a) any "person" or "group"
(within the meaning of Section 13(d) or 14(d) of the Securities
Exchange Act) (other than one or more of the Principal
Shareholders) has become, directly or indirectly, the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Securities Exchange Act, except that a Person shall be
deemed to have a "beneficial ownership" of all shares that any
such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), by
way of merger, consolidation or otherwise, of 20% or more of
the voting power of the Voting Stock of Borrower on a
fully-diluted basis, after giving effect to the conversion and
exercise of all outstanding warrants, options and other
securities of Borrower convertible into or exercisable for
Voting Stock of Borrower (whether or not such securities are
then currently convertible or exercisable); or (b) during any
period of two consecutive calendar years, individuals who at
the beginning of such period constituted the board of directors
of Borrower (together with any new directors whose election to
such board or whose nomination for election by the stockholders
of Xxxxxxxx was approved by a vote of a majority of the
directors then still in office who were either directors at the
beginning of such period or whose election or nomination for
election was previously approved) cease for any reason to
constitute a majority of the board of directors of Borrower
then in office; or (c) the failure of Biochem Pharma Inc. at
any time to directly own beneficially and of record on a fully
diluted basis at least 35% of the Voting Stock of Borrower.
Closing Date: Means the date of this Agreement.
Code: The Internal Revenue Code of 1986, as amended from time to
time.
Contractual
Obligation: Any provision of any security issued by such Person or of any
agreement, instrument or undertaking to which such Person is a
party or by which it or any of its property is bound.
A-2
Debtor Relief
Laws: The Bankruptcy Code of the United States of America, and all
other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor
relief laws of the United States of America or other applicable
jurisdictions from time to time in effect affecting the rights
of creditors generally.
Default: Any event that, with the giving of any notice, the passage of
time, or both, would be an Event of Default.
Disposition: The sale, transfer, license or other disposition (including any
sale and leaseback transaction) of any property by any Person,
including any sale, assignment, transfer or other disposal with
or without recourse of any notes or accounts receivable or any
rights and claims associated therewith.
ERISA: The Employee Retirement Income Security Act of 1974 and any
regulations issued pursuant thereto, as amended from time to
time.
Event of
Default: Has the meaning set forth in Paragraph 5.
Federal Funds
Rate: For any day, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) equal to the weighted average of
the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers
on such day, as published by the Federal Reserve Bank of New
York on the Business Day next succeeding such day; PROVIDED
that (a) if such day is not a Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to
Lender on such day on such transactions as determined by
Xxxxxx.
Governmental
Authority: Any (a) international, foreign, federal, state, county or
municipal government, or political subdivision thereof, (b)
governmental or quasi-governmental agency, authority, board,
bureau, commission, department, instrumentality, central bank
or public body, or (c) court, administrative tribunal or public
utility.
Guarantor: Xxxxxx International, Inc., a Delaware Corporation.
Guaranty: The Guaranty dated as of the date of the Agreement given by
Guarantor for the benefit of Lender.
A-3
Guaranty Event
of Default: Has the meaning set forth in the Guaranty.
Guaranty
Obligation: Any (a) guaranty by a Person of Indebtedness of, or other
obligation payable or performable by, any other Person or (b)
assurance, agreement, letter of responsibility, letter of
awareness, undertaking or arrangement given by a Person to an
obligee of any other Person with respect to the payment or
performance of an obligation by, or the financial condition of,
such other Person, whether direct, indirect or contingent,
including any purchase or repurchase agreement covering such
obligation or any collateral security therefor, any agreement
to provide funds (by means of loans, capital contributions or
otherwise) to such other Person, any agreement to support the
solvency or level of any balance sheet item of such other
Person or any "keep-well" or other arrangement of whatever
nature given for the purpose of assuring or holding harmless
such obligee against loss with respect to any obligation of
such other Person; PROVIDED, HOWEVER, that the term Guaranty
Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The
amount of any Guaranty Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the
related primary obligation, or portion thereof, covered by such
Guaranty Obligation or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as
determined by the Person in good faith.
Indebtedness: As to any Person at a particular time, all items which would,
in conformity with GAAP, be classified as liabilities on a
balance sheet of such Person as at such time (excluding trade
and other accounts payable in the ordinary course of business
in accordance with customary trade terms and which are not
overdue for a period of more than 60 days and excluding
deferred taxes), but in any event including: (a) all
obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments; (b) any direct or
contingent obligations of such Person arising under letters of
credit (including standby and commercial), banker's
acceptances, bank guaranties, surety bonds and similar
instruments; (c) net obligations under any Swap Contract in an
amount equal to (i) if such Swap Contract has been closed out,
the termination value thereof, or (ii) if such Swap Contract
has not been closed out, the mark-to-market value thereof
determined on the basis of readily available quotations
provided by any recognized dealer in such Swap Contract; (d)
A-4
whether or not so included as liabilities in accordance with
GAAP, all obligations of such Person to pay the deferred
purchase price of property or services, and indebtedness
(excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall
have been assumed by such Person or is limited in recourse; (e)
lease payment obligations under capital leases or Synthetic
Lease Obligations; and (f) all Guaranty Obligations of such
Person in respect of any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any
Person shall include the Indebtedness of any partnership or
joint venture in which such Person is a general partner or a
joint venturer.
Intellectual
Property: Has the meaning set forth in PARAGRAPH 3(K).
Interest
Period: For each Offshore Rate Loan, (a) initially, the period
commencing on the date the Offshore Rate Loan is disbursed or
converted from a Base Rate Loan and (b) thereafter, the period
commencing on the last day of the preceding Interest Period,
and, in each case, ending on the earlier of (x) the Maturity
Date and (y) one month thereafter, as requested by Xxxxxxxx;
PROVIDED that:
(i) any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next
succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period
shall end on the next preceding Business Day; and
(ii) any Interest Period which begins on the last Business Day
of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business
Day of the calendar month at the end of such Interest
Period.
Investment: Any acquisition or any investment by such Person, whether by
means of the purchase or other acquisition of stock or other
securities of any other Person or by means of a loan, creating
a debt, capital contribution, guaranty or other debt or equity
participation or interest in any other Person, including any
partnership and joint venture interests in such other Person.
A-5
IP Security
Agreement: The Patent and Trademark Assignment and Security Agreement
dated as of the Closing Date between Borrower, as assignor, and
Lender, as assignee.
Lien: Any mortgage, pledge, hypothecation, assignment, deposit
arrangement (in the nature of compensating balances, cash
collateral accounts or security interests), encumbrance, lien
(statutory or other), charge, or preference, priority or other
security interest or preferential arrangement of any kind or
nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect
as any of the foregoing, and the filing of any financing
statement under the Uniform Commercial Code or comparable laws
of any jurisdiction), including the interest of a purchaser of
accounts receivable.
Loan Documents: This Agreement, the Security Agreement, the IP Security
Agreement and any promissory note, 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.
Material
Adverse Effect: Any set of circumstances or events which (a ) has or could
reasonably be expected to have any material adverse effect
whatsoever upon the validity or enforceability of any Loan
Document, (b) is or could reasonably be expected to be material
and adverse to the condition (financial or otherwise), business
operations or prospects of Borrower or (c) materially impairs
or could reasonably be expected to materially impair the
ability of Borrower to perform its obligations and liabilities
under this Agreement or any other Loan Document; provided,
however, that a Material Adverse Effect under this Agreement
shall not include any circumstances or events (including,
without limitation, any loss of personnel, loss of customers,
loss of suppliers or the delay or cancellation of any orders
for products): (i) relating to the economy in general, (ii)
relating to the industry in which Borrower operates in general,
(iii) relating to any actions taken by The American Stock
Exchange with respect to its letter to the Borrower dated
September 24, 1999, (iv) arising out of or resulting from
actions contemplated by the Borrower and the Guarantor in
connection with, or which is attributable to, the announcement
of this Agreement and/or the transactions contemplated hereby
(including, without limitation, the Guarantor's acquisition of
the Borrower), or (v) relating to the release of Borrower's
financial results or Xxxxxxxx's failure to meet any publicized
financial projections for so long as Borrower's revenue and
A-6
expenses are substantially in accordance with the Projections.
Maturity Date: March 31, 2000, or such earlier date on which the Commitment
may terminate in accordance with the terms hereof.
Multiemployer
Plan: Any employee benefit plan of the type described in Section
4001(a)(3) of ERISA.
Negative
Pledge: A Contractual Obligation that restricts Liens on property.
North American The acquisition by Guarantor of Borrower pursuant to the North
Vaccine American Vaccine Acquisition Agreement and all other
Acquisition: transactions contemplated by the North American Vaccine
Acquisition Agreement.
North American The Agreement and Plan of Merger to be entered into between
Vaccine Guarantor and Borrower, in substantially the form of EXHIBIT
Acquisition C hereto, as amended or modified from time to time as agreed to
Agreement: by the parties thereto.
Offshore Rate: For any Interest Period with respect to any Offshore Rate Loan,
a rate per annum determined pursuant to the following formula:
Offshore Rate = Offshore Base Rate
-------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"OFFSHORE BASE RATE" means, for such Interest Period:
(a) the rate per annum (carried out to the fifth
decimal place) equal to the rate determined by
Lender to be the offered rate that appears on the
page of the Telerate Screen that displays an
average British Bankers Association Interest
Settlement Rate (such page currently being page
number 3750) for deposits in dollars (for
delivery on the first day of such Interest
Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m.
(London time) two Business Days prior to the
first day of such Interest Period, or
(b) in the event the rate referenced in the preceding
clause (a) does not appear on such page or
service or such page or service shall cease to be
available, the rate per annum (carried to the
fifth decimal place) equal to the rate determined
A-7
by Lender to be the offered rate on such other
page or other service that displays an average
British Bankers Association Interest Settlement
Rate for deposits in dollars (for delivery on the
first day of such Interest Period) with a term
equivalent to such Interest Period, determined as
of approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such
Interest Period, or
(c) in the event the rates referenced in the
preceding clauses (a) and (b) are not available,
the rate per annum determined by Lender as the
rate of interest at which dollar deposits (for
delivery on the first day of such Interest
Period) in same day funds in the approximate
amount of the applicable Offshore Rate Loan and
with a term equivalent to such Interest Period
would be offered by Xxxxxx's London Branch to
major banks in the offshore dollar market at
their request at approximately 11:00 a.m. (London
time) two Business Days prior to the first day of
such Interest Period.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day
during any Interest Period, the reserve percentage
(expressed as a decimal, rounded upward to the next
1/100th of 1%) in effect on such day applicable to
Lender under regulations issued from time to time by
the Board of Governors of the Federal Reserve System
for determining the maximum reserve requirement
(including any emergency, supplemental or other
marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as
"Eurocurrency liabilities"). The Offshore Rate for
each outstanding Offshore Rate Loan shall be adjusted
automatically as of the effective date of any change
in the Eurodollar Reserve Percentage.
Offshore Rate
Loan: A Loan bearing interest based on the Offshore Rate.
Pension Plan: Any "employee pension benefit plan" (as such term is defined
in Section 3(2) of ERISA), other than a Multiemployer Plan,
that is subject to Title IV of ERISA and is sponsored or
maintained by Borrower or any ERISA Affiliates or to which
Borrower or any ERISA Affiliate contributes or has an
obligation to contribute, or in the case of a multiple employer
A-8
plan (as described in Section 4064(a) of ERISA) has made
contributions at any time during the immediately preceding five
plan years.
Person: Any individual, trustee, corporation, general partnership,
limited partnership, limited liability company, joint stock
company, trust, unincorporated organization, bank, business
association, firm, joint venture, governmental authority, or
otherwise.
Plan: Any employee benefit plan maintained or contributed to by
Borrower or by any trade or business (whether or not
incorporated) under common control with Borrower as defined in
Section 4001(b) of ERISA and insured by the Pension Benefit
Guaranty Corporation under Title IV of ERISA.
Principal
Shareholder: Each of Guarantor, Biochem Pharma Inc., Dr. Xxxxxxx Xxxxx
and/or Frost-Nevada Limited Partnership
Projections: The projections of balance sheets, statements of cash flows and
comparative statements of operations (2000 Forecast) for
Borrower dated October 25, 1999 and delivered to Lender by
Borrower prior to the Closing Date.
Reimbursement
Agreement: That certain Reimbursement Agreement dated as of November 1,
1999 between Borrower and Guarantor.
Restricted
Payment: (a) The declaration or payment of any dividend or distribution
by Borrower or any of its Subsidiaries, either in cash or
property, on any shares of the capital stock of any class of
Borrower or any of its Subsidiaries; (b) the purchase,
repayment, redemption or retirement by Borrower or any of its
Subsidiaries of any shares of its capital stock of any class or
any warrants, rights or options to purchase or acquire any
shares of its capital stock, whether directly or indirectly;
(c) any other payment or distribution by Borrower or any of its
Subsidiaries in respect of its capital stock, either directly
or indirectly; (d) any Investment other than an Investment
otherwise permitted under any Loan Document; and (e) the
prepayment, repayment, redemption, defeasance or other
acquisition or retirement for value prior to any scheduled
maturity, scheduled repayment or scheduled sinking fund
payment, of any Indebtedness not otherwise permitted under any
Loan Document to be so paid.
Royal Bank of
Canada Credit (A) That certain letter agreement dated July 12, 1999 delivered
Facility: by Royal Bank of Canada and accepted by Borrower, Biochem
A-9
Pharma Inc. and Biochem Pharma Holdings Inc., in an aggregate
principal amount of up to US$6.0MM and (B) that certain
Guarantee and Postponement of Claims from Biochem Pharma Inc.
and Biochem Pharma Holdings Inc. in favor of Royal Bank of
Canada dated July 1, 1999.
Securities
Exchange Act: The Securities Exchange Act of 1934, as amended, and all rules
and regulations issued pursuant thereto.
Security
Agreement: The Security Agreement dated as of the Closing Date between
Xxxxxxxx, as debtor, and Xxxxxx, as secured party.
Subsidiary: A corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting
power for the election of directors or other governing body
(other than securities or interests having such power only by
reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more
intermediaries, or both, by Borrower.
Swap Contract: (a) Any and all rate swap transactions, basis swaps, forward
rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options,
bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions,
interest rate options, forward foreign exchange transactions,
cap transactions, floor transactions, collar transactions,
currency swap transactions, cross-currency rate swap
transactions, currency options, or any other similar
transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing),
whether or not any such transaction is governed by or subject
to any master agreement, or (b) any and all transactions of any
kind, and the related confirmations, which are subject to the
terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives
Association, Inc., or any other master agreement (any such
master agreement, together with any related schedules, as
amended, restated, extended, supplemented or otherwise modified
in writing from time to time, a "MASTER AGREEMENT"), including
but not limited to any such obligations or liabilities under
any Master Agreement.
Synthetic Lease
Obligations: All monetary obligations of a Person under (a) a so-called
synthetic lease, or (b) an agreement for the use or possession
A-10
of property creating obligations which do not appear on the
balance sheet of such Person but which, upon the insolvency or
bankruptcy of such Person, would be characterized as the
Indebtedness of such Person (without regard to accounting
treatment).
Voting Stock: All classes of capital stock of Borrower then outstanding and
normally entitled to vote in the election of directors.
A-11
EXHIBIT B
FORM OF PROMISSORY NOTE
$30,000,000 _____________, 1999
FOR VALUE RECEIVED, the undersigned, NORTH AMERICAN VACCINE, INC., a
___________ corporation ("BORROWER"), hereby promises to pay to the order of
BANK OF AMERICA, N.A. ("LENDER") the principal sum of Thirty Million Dollars
(US$30,000,000) or, if less, the aggregate unpaid principal amount of all Loans
made by Lender to Borrower pursuant to the letter agreement, dated as of
[__________, 1999] (such letter agreement, as it may be amended, restated,
extended, supplemented or otherwise modified from time to time, being
hereinafter called the "AGREEMENT"), between Borrower and Lender, on the
Maturity Date. Xxxxxxxx further promises to pay interest on the unpaid principal
amount of the Loans evidenced hereby from time to time at the rates, on the
dates, and otherwise as provided in the Agreement.
Lender is authorized to endorse the amount and the date on which each
Loan is made or converted, the Interest Period therefor (if applicable) and each
payment of principal with respect thereto on the schedules 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 the promissory note 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 North
Carolina.
NORTH AMERICAN VACCINE, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
B-1
SCHEDULE A TO NOTE
BASE RATE LOANS AND REPAYMENT OF BASE RATE LOANS
------------------------------------------------
(1) (2) (3) (4) (5)
Amount of Base Rate
Amount of Base Rate Loan Repaid or Unpaid Principal
Loan Made or Converted Converted to Offshore Balance of Base Notation
Date from Offshore Rate Loan Rate Loan Rate Loans Made By
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B-2
SCHEDULE B TO NOTE
OFFSHORE RATE LOANS AND REPAYMENT OF OFFSHORE RATE LOANS
--------------------------------------------------------
(1) (2) (3) (4) (5) (6)
Amount of Amount of
Offshore Rate Offshore Rate Unpaid Principal
Loan Made or Loan Repaid or Balance of
Converted from Converted to Base Offshore Rate Notation
DATE BASE RATE LOAN INTEREST PERIOD RATE LOAN LOANS MADE BY
---- -------------- --------------- --------- ----- -------
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B-3
EXHIBIT C
[Form of North American Vaccine Acquisition Agreement]
SCHEDULE 3(D) TO AGREEMENT
MATERIAL LITIGATION
1.) On November 2, 1998, Xxxxxx Xxxxx, Ph.D., then a director of the Company
and the Company's former president, initiated litigation in United States
District Court, District of Maryland (Civil Action No. AW 98-3678) (the
"Complaint") against the Company, two of its directors and BioChem.
2.) By letter dated October 7, 1999, Chiron Behring GmbH & Co. ("Chiron")
notified Borrower that Chiron was terminating "for cause" the parties' Supply
and Distribution Agreement dated December 3, 1996, as amended. Chiron has
alleged that Borrower misrepresented the status of regulatory approval of its
products and fraudulently induced Chiron to enter into the agreement, and has
demanded repayment from Borrower of $3 million in nonrefundable payments under
the agreement.
SCHEDULE 3(F) TO AGREEMENT
USE OF PROCEEDS
SCHEDULE 3(F)
NON-WORKING CAPITAL USES OF PROCEEDS
(THROUGH MARCH 31, 2000)
Preliminary Capital Additions Forecast
10/28/99
DESCRIPTION IN PROGRESS VENDOR
Cleaning skid Xxxxxxx Xxxxxx $ 16,720
Cleaning skid Xxxxxxx Xxxxxx 4,146
MSS Project installation costs Xxxxxxx Xxxxxx 17,010
Engineering support Xxxxxxx Xxxxxx 75,868
services/mening
Four agitators - Mening C Xxxxxxxxxx Xxxx 24,988
Micro filtration skid/Mening C Prime Technologies 47,864
HPLC 1100 Zee Xxxx Xxx 45,000
Validation - HPLC Zee Xxxx Xxx 10,050
Centrifuge N/A 5,000
Integrity Tester N/A 15,000
pH Probes N/A 20,000
Plate washers N/A 6,200
MetOne counters N/A 15,000
RCS Air Samplers N/A 15,000
UV1201 Spectrophotometer N/A 6,500
Biowaste Vessel N/A 50,000
Biowaste Vessel/Startup N/A 100,000
4' Biosafety Cabinet N/A 7,000
UV monitor N/A 2,800
Fraction collector N/A 2,500
Acqua Cal Conductivity Std. N/A 3,000
Azonics Temp Std N/A 5,000
Heat block (low temp) N/A 5,950
Heat block (high temp) N/A 5,950
Work benches N/A 5,000
Ultrafiltration skid N/A 200,000
Chem reactor (Men. C) N/A 40,000
Stainless steel tanks N/A 50,000
Miscellaneous N/A 2,384
Total 4th Qtr 1999 803,930
Additions
Chromatography columns N/A 10,000
UV detector N/A 11,000
Glucose probe N/A 6,000
Plate reader N/A 45,000
Florescent Plate reader N/A 20,000
Gas Chromatograph N/A 35,000
Microscope N/A 6,000
Ultrafiltration skid N/A 200,000
Ultrafiltration skid N/A 200,000
Microfiltration skid N/A 250,000
SS Tank/controller (for N/A 50,000
purification)
YSI analyzer N/A 12,000
Integrated balance and pump N/A 20,000
(2)
Air/Oxygen mixer (for N/A 20,000
fermentor) (2)
Incubator/Shaker N/A 9,000
Floor scale N/A 6,000
Total 1st Qtr 2000 900,000
Additions
TOTAL CAPEX ADDITIONS 6 MONTHS $ 1,703,930
INTEREST PAYMENTS
6.5% Notes $ 2,448,095
4.5% Notes 562,500
TOTAL INTEREST PAYMENTS $ 3,010,595
=============
SCHEDULE 3(K) TO AGREEMENT
LIST OF INTELLECTUAL PROPERTY TO BE PLEDGED AS COLLATERAL
See Schedule A and Schedule B attached hereto.
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE A
------------------------------------------------------------------------------------------------------------------------------------
PATENTS AND PATENT APPLICATIONS OF ASSIGNOR
------------------------------------------------------------------------------------------------------------------------------------
TITLE INVENTORS ASSIGNEE APPL. NO./ APPL. DATE/GRANT STATUS
PATENT NO. DATE
------------------------------------------------------------------------------------------------------------------------------------
ISSUED U.S. PATENTS
------------------------------------------------------------------------------------------------------------------------------------
Method for the High Level Xxxxx, et al. NVX 08/798,760 February 11, 1997 Notice of
Expression, Purification and (co-exclusive (Notice of Allowance Allowance issued
Refolding of the Outer Membrane license with PMC) issued Jan. 1999) January 1999
Group B Porin Proteins (fee paid April
1999)
------------------------------------------------------------------------------------------------------------------------------------
Method for the High Level Xxxxx, et al. NVX & Rockefeller 5,439,808 August 8, 1995 Patent
Expression, Purification and University
Refolding of the Outer Membrane (co-exclusive
Group B Porin Proteins from license with PMC)
Neisseria Meningitidis
------------------------------------------------------------------------------------------------------------------------------------
Method for the High Level Xxxxx, et al. NVX 5,747,287 May 5, 1998 Patent
Expression, Purification and (co-exclusive
Refolding of the Outer Membrane license with PMC)
Group B Porin Proteins from
Neisseria Meningitidis
------------------------------------------------------------------------------------------------------------------------------------
Group A Streptococcal Xxxxx et al. NVX & Rockefeller 5,866,135 February 2, 1999 Patent
Polysaccharide Immunogenic University
Compositions and Methods
------------------------------------------------------------------------------------------------------------------------------------
Method for the High Level Xxxxx, et al. NVX 5,879,686 March 9, 1999 Patent
Expression, Purification and (co-exclusive
Refolding of the Outer Membrane license with PMC)
Group B Porin Proteins from
Neisseria Meningitidis
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
U.S. PATENT APPLICATIONS
------------------------------------------------------------------------------------------------------------------------------------
Method for the High Level Tai, et al. NVX 08/096,181 July 23, 1993 Application
Expression, Purification and
Refolding of the Outer Membrane
Protein P2 from Haemophilus Type b
------------------------------------------------------------------------------------------------------------------------------------
Method for the High Level Tai, et al. NVX 08/449,358 May 24, 1995 Application
Expression, Purification and
Refolding of the Outer Membrane
Protein P2 from Haemophilus Type b
------------------------------------------------------------------------------------------------------------------------------------
Antigenic Group B Streptococcus Xxxxxx, et al. NVX 08/481,883 June 7, 1995 Application
Type II and Type III
Polysaccharide Fragments Having a
2,5-Anhydro-D-Mannose Terminal
Structure and Conjugate Vaccine
Thereof
------------------------------------------------------------------------------------------------------------------------------------
Direct Methods for Molar-Mass Xxxxxx, X'Xxxxx NVX 08/753,242 November 22, 1996 Application
Determination of Fragments of
Haemophilus Type b Capsular
Polysaccharides and Vaccine
Preparation
------------------------------------------------------------------------------------------------------------------------------------
Cloning of Non-IgA FC Binding Tai, Blake NVX 08/923,992 September 5, 1997 Application
Forms of the Group B Streptococcal
Beta Antigens
------------------------------------------------------------------------------------------------------------------------------------
Antigenic Group B Streptococcus Xxxxxx, et al. NVX 09/025,225 February 18, 1998 Application
Type II and Type III
Polysaccharide Fragments Having a
2,5-Anhydro-D-Mannose Terminal
Structure and Conjugate Vaccine
Thereof
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Immunogenic Conjugates Comprising Xxxxx, et al. NVX 09/118/180 July 17, 1998 Application
A Group B Meningococcal Porin and
an H. Influenzae Polysaccharide
------------------------------------------------------------------------------------------------------------------------------------
Modified Immunogenic Pneumolysin Xxxxxxx, et al. NVX 09/120,044 July 21, 1998 Application
Compositions as Vaccines
------------------------------------------------------------------------------------------------------------------------------------
Group A Streptococcal Xxxxx et al. NVX & 09/207,188 December 8, 1998 Application
Polysaccharide Immunogenic Rockefeller
Compositions and Methods University
------------------------------------------------------------------------------------------------------------------------------------
Procedures for the Extraction and Xxxxxx, Xxxxx NVX 09/221,620 December 23, 1998 Application
Isolation of Bacterial Capsular
Polysaccharides for Use as
Vaccines or Linked to Proteins as
Conjugate Vaccines
------------------------------------------------------------------------------------------------------------------------------------
Gram Positive Bacterial Antigens Xxxx-Xxxx, Xxxxx NVX 09/399,220 September 17, 1999 Application
and Methods of Purification of the
Streptococcal C-Beta Protein
------------------------------------------------------------------------------------------------------------------------------------
Immunogenic Polysaccharide-Protein Xxxxxx et al. NVX 09/376,911 August 18, 1999 Application
Conjugate Useful as a Vaccine
Produced Via Conjugation Through a
CZ-3 N-Acyl Portion F A
Polysaccharide
------------------------------------------------------------------------------------------------------------------------------------
A-1.
---------------------------------------------------------------------------------------------------------------------------
SCHEDULE B
---------------------------------------------------------------------------------------------------------------------------
U.S. TRADEMARKS OF ASSIGNOR
---------------------------------------------------------------------------------------------------------------------------
MARK STATUS APPL NO./ APPL./REGIS. DATE OWNER OF RECORD
REGIS. NO.
---------------------------------------------------------------------------------------------------------------------------
REGISTERED U.S. TRADEMARKS
---------------------------------------------------------------------------------------------------------------------------
Globe Design Registered 1,932,111 October 31, 1995 North American Vaccine, Inc.
---------------------------------------------------------------------------------------------------------------------------
AMVAX Registered 1,967,632 April 16, 1996 North American Vaccine, Inc.
---------------------------------------------------------------------------------------------------------------------------
TRINAVACEL Registered 2,101,121 September 30, 1997 American Vaccine Corporation
---------------------------------------------------------------------------------------------------------------------------
TRIVAX Registered 2,118,360 December 2, 1997 American Vaccine Corporation
---------------------------------------------------------------------------------------------------------------------------
XXXX Registered 2,267,812 August 3, 1999 American Vaccine Corporation
---------------------------------------------------------------------------------------------------------------------------
PENDING U.S. TRADEMARK APPLICATIONS
---------------------------------------------------------------------------------------------------------------------------
THE IMPORTANCE OF OUR WORK Pending 75/190,826 October 29, 1996 American Vaccine Corporation
GROWS BIGGER EVERY DAY
---------------------------------------------------------------------------------------------------------------------------
NEISVAC-C Pending Not Avail. August 26, 1999 American Vaccine Corporation
---------------------------------------------------------------------------------------------------------------------------
NEISIVA Pending Not Avail. August 26, 1999 American Vaccine Corporation
---------------------------------------------------------------------------------------------------------------------------
MENCIVA Pending Not Avail. August 26, 1999 American Vaccine Corporation
---------------------------------------------------------------------------------------------------------------------------
B-2
SCHEDULE 4(C)(I) TO AGREEMENT
OUTSTANDING INDEBTEDNESS
Annex B
Liabilities Greater than $1,000,000
Indenture dated May 7, 1996 between NAV and Marine Midland Bank, together with
related 6.5% Convertible Subordinated Notes.
Master Agreement dated November 1, 1996 between NAV and General Electric Capital
Corporation
Indenture dated November 12, 1998 by and between the Company and Bankers Trust
Company, as Trustee
SCHEDULE 4(C)(II) TO AGREEMENT
LIENS AND NEGATIVE PLEDGES
Schedule 4(c)(ii)
Liens and Negative Pledges
Master Agreement dated November 1, 1996 between NAV and General Electric Capital
Corporation, including Security Agreement dated November 1, 1996.
Security and Pledge Agreement dated November 12, 1998 by and between the Company
and Bankers Trust Company, as trustee
Lease dated September 9, 1999 between Borrower and WRIT Limited Partnership
Lease dated February 19, 1999 between Borrower and Newcourt Financial USA Inc.
(capital lease for mass spectrometer)
Lease dated March 25, 1998 between Borrower and ARE-10150 Old Columbia LLC
Assignment of Deposit Account dated April 2, 1998 by Borrower to Chase Manhattan
Bank, with Notice of Assignment and Notice of Letter of Credit dated April 3,
1998
