SIXTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
This Amendment is made as of June 7, 1999 by and between XXXXXX
PHARMACEUTICAL, INC., a Delaware corporation with its principal office at 00
Xxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx (the "Borrower"), and BANKBOSTON, N.A. (f/k/a
The First National Bank of Boston), a national banking association with its
principal office at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx (the "Bank").
R E C I T A L S
A. The Bank and the Borrower are parties to a certain Amended and
Restated Loan Agreement dated August 17, 1993, as amended by a certain First
Amendment to Amended and Restated Loan Agreement dated June 29, 1995, a certain
Second Amendment to Amended and Restated Loan Agreement dated August 30, 1995, a
certain Third Amendment to Amended and Restated Loan Agreement dated March 25,
1996, a certain Fourth Amendment to Amended and Restated Loan Agreement dated
July 31, 1996 and a certain Fifth Amendment to Amended and Restated Loan
Agreement dated August 7, 1997 (as amended, the "Loan Agreement"). Capitalized
terms used herein without definition have the meaning assigned to them in the
Loan Agreement.
B. The Borrower has requested certain amendments to the Loan Agreement
as set forth herein.
C. Subject to certain terms and conditions, the Bank is willing to
agree to the same, as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
I. AMENDMENTS TO LOAN AGREEMENT.
The Borrower and the Bank agree that the Loan Agreement shall be
amended as follows:
1. Definition of Commitment. The definition of "Commitment" in Section
1.1 of the Loan Agreement is hereby amended to read in its entirety as follows:
"Commitment: $25,000,000."
2. Definition of Maturity Date. The definition of "Maturity Date" in
Section 1.1 of the Loan Agreement is hereby amended to read in its entirety as
follows:
"Maturity Date: October 31, 2001."
3. Deletion of Definitions. The definitions of "Consolidated Current
Assets" and "Consolidated Current Liabilities" are deleted from Section 1.1 in
their entirety.
4. Section 9.2. Section 9.2 of the Loan Agreement is hereby deleted in
its entirety and replaced with the following:
"ss.9.2 Profitability. The Borrower and its Subsidiaries shall earn
Consolidated Net Income of at least $1,000 for each period of four (4)
consecutive fiscal quarters ending December 31, March 31, June 30 and
September 30."
5. Exhibit A. Exhibit A to the Loan Agreement is hereby supplemented by
the Fourth Amendment to Amended and Restated Promissory Note attached hereto as
Exhibit A.
II. NO FURTHER AMENDMENTS.
Except as specifically amended herein, all terms and conditions of the
Loan Agreement shall remain in full force and effect as originally constituted.
Each reference in the Loan Agreement to "this Agreement", "hereunder", "hereof"
or words of like import referring to the Loan Agreement shall mean and be a
reference to the Loan Agreement as amended by this Sixth Amendment, and each
reference in any other Loan Document to the Loan Agreement, "thereunder",
"thereof" or words of like import referring to the Loan Agreement shall mean and
be a reference to the Loan Agreement as amended by this Sixth Amendment.
III. CONDITIONS.
The willingness of the Bank to agree to the foregoing is subject to the
following conditions:
(A) The Borrower shall have executed and delivered to the Bank (or
shall have caused to be executed and delivered to the Bank by the appropriate
persons) the following:
(i) This Sixth Amendment;
(ii) A Fourth Amendment to Amended and Restated Promissory
Note, in the form of Exhibit A hereto;
(iii) True and complete copies of any required directors'
consents and/or resolutions authorizing the execution
and delivery of this Sixth Amendment and the Fourth
Amendment to Amended and Restated Promissory Note and
other documentation referred to herein, certified by
the Secretary of the Borrower; and
(iv) Such other supporting documents and certificates as
the Bank or its counsel may reasonably request.
(B) All legal matters incident to the transactions contemplated hereby
shall be satisfactory to counsel for the Bank.
IV. MISCELLANEOUS.
1. The Borrower represents and warrants that no event has occurred or
failed to occur, which constitutes, or which, solely with the passage of time or
the giving of notice (or both) would constitute, an Event of Default.
2. The execution and delivery of this Sixth Amendment and the Fourth
Amendment to Amended and Restated Promissory Note by the Borrower has been duly
authorized by all requisite corporate action of the Borrower and will not
violate any provision of law, any order, judgment or decree of any court or
other agency of government, or the organizational documents of the Borrower or
any other instrument to which the Borrower is a party, or by which the Borrower
is bound. This Sixth Amendment and the Fourth Amendment to Amended and Restated
Promissory Note constitute the legal, valid and binding obligations of the
Borrower, enforceable against the Borrower in accordance with their respective
terms.
3. The representations and warranties contained in Section 6 of the
Loan Agreement are true and correct in all material respects on and as of the
date of this Sixth Amendment as though made on and as of such date (except to
the extent that such representations and warranties expressly relate to an
earlier date or except to the extent variations therefrom have been (i)
permitted under the terms of Loan Agreement, (ii) otherwise approved in writing
by the Bank or (iii) reflected in reports filed by the Borrower with the
Securities and Exchange Commission).
4. As provided in the Loan Agreement, the Borrower agrees to reimburse
the Bank upon demand for all out-of-pocket costs, charges, liabilities, taxes
and expenses of the Bank (including reasonable fees and disbursements of counsel
to the Bank) in connection with the preparation, negotiation, interpretation,
execution and delivery of this Sixth Amendment and any other agreements,
instruments or documents executed pursuant or relating hereto.
5. The Borrower represents, warrants, and agrees that the Borrower has
no claims, defenses, counterclaims or offsets against the Bank in connection
with the Loan Agreement or the Obligations, and, to the extent that any such
claim, defense, counterclaim or offset may exist, the Borrower hereby
affirmatively WAIVES AND RELEASES Bank from the same.
6. This Sixth Amendment may be executed in any number of counterparts
and by different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which counterparts taken
together shall be deemed to constitute one and the same agreement.
7. This Sixth Amendment shall take effect as a sealed instrument under
the laws of the Commonwealth of Massachusetts as of the date first above
written.
XXXXXX PHARMACEUTICAL, INC.
By: /s/ Xxxxxx X.X. Xxxxx
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Xxxxxx X.X. Xxxxx, CFO
BANKBOSTON, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Director
