EXHIBIT 7.8
AMENDMENT TO
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DEVELOPMENTAL COLLABORATION AGREEMENT
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AND
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CREDIT AGREEMENT
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THIS AMENDMENT TO DEVELOPMENTAL COLLABORATION AGREEMENT AND CREDIT
AGREEMENT ("Amendment") is made as of this 28th day of February, 2000, by and
between ▇▇▇▇▇▇ HEALTHCARE CORPORATION, a Delaware corporation with offices at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Baxter") and UROGEN
CORPORATION, a Delaware corporation with offices at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("UroGen").
RECITALS
WHEREAS, Baxter and UroGen have entered into that certain Developmental
Collaboration Agreement, dated as of July 8, 1998 (the "Development Agreement")
and that certain Credit Agreement dated as of July 8, 1998 (the "Credit
Agreement", and together with the Development Agreement, the "Agreements");
WHEREAS, Baxter has agreed to enter into a Guaranty Agreement dated as
of February 28, 2000 (the "Guaranty") pursuant to which Baxter has agreed to
guaranty certain obligations of UroGen under that certain Master Lease Agreement
dated February 28, 2000 between UroGen and Banc One Leasing Corp. ("Banc One")
under which UroGen has leased the equipment described in such Master Lease
Agreement (such equipment, the "Leased Equipment");
WHEREAS, Baxter and UroGen desire to amend the Agreements in order to
(i) include as part of UroGen's liabilities under the Credit Agreement any
amounts Baxter may pay to the lessor of the Leased Equipment under the Guaranty
before the IND Milestone Date (as such term is defined in the Development
Agreement) and (ii) include any amounts Baxter may pay to the lessor of the
Leased Equipment under the Guaranty before the IND Milestone Date as part of
▇▇▇▇▇▇'▇ funding of UroGen's development work under the Development Agreement,
all upon the terms and conditions of this Amendment.
NOW THEREFORE, in consideration of the mutual covenants and promises
herein contained, the parties hereto hereby agree as follows:
TERMS
1. Amendments to the Development Agreement. Capitalized terms
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used in this Section 1 and not herein defined shall have the
meanings ascribed to such terms in the Development Agreement. The Development
Agreement is hereby amended as follows:
(a) Section 1.3 of the Development Agreement shall be amended
by adding
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the following after the definition of "Funding:"
"Guaranty" means that certain Guaranty dated February 28,
2000 by Baxter in favor of UroGen, pursuant to which Baxter
agreed to guaranty UroGen's payment obligations under the
terms of the Master Lease Agreement dated February 28, 2000
between UroGen and Banc One."
(b) Section 3.5 of the Development Agreement shall be
amended as follows:
(i) Section 3.5(a) of the Development Agreement
shall be amended by adding the following at the end of such section:
"plus any payments by Baxter pursuant to the Guaranty."
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(ii) Section 3.5(c) of the Development Agreement
shall be amended by adding the following at the end of such section:
"(vi) In the event that during the Baxter Funding Period
Baxter makes any payment under the Guaranty, for the purposes
of determining ▇▇▇▇▇▇'▇ Adjusted Interest under this
Agreement, ▇▇▇▇▇▇'▇ Adjusted Interest will be adjusted (and
UroGen's Adjusted Interest will be correspondingly adjusted)
on an annual basis, in arrears in proportion to its share of
the total Funding pursuant to the following formula (provided,
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however, that in no event shall (aa) the UroGen Adjusted
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Interest be less than 35% nor more than 75%, nor shall (bb)
the Baxter Adjusted Interest be less than 25% nor more than
65%):
▇▇▇▇▇▇'▇ Adjusted Interest = ((A/B) x C) x 100
UroGen's Adjusted Interest = 100% - ▇▇▇▇▇▇'▇ Adjusted Interest
where:
A = the dollar amount actually funded UroGen by Baxter
pursuant to Section 3.5(a) above through such
calendar year, including, without limitation, any
amounts paid by Baxter under the Guaranty during such
calendar year
B = the aggregate Approved Expenses for Developmental
Work during the Baxter Funding Period through such
calendar year; and
C = the Baxter Interest, expressed as a decimal."
(c) The first paragraph of Section 8.1 of the Development
Agreement shall be amended by deleting the first paragraph thereof and
inserting the following in its place:
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"Prior to the occurrence of the Qualifying Regulatory
Approval Milestone, either Party may unilaterally cease all
participation in all Development Work under this Agreement by
thirty (30) days prior written notice of its election to cease
participation to the other Party. In the event that a Party
gives a notice of termination of the Agreement pursuant to
Section 2(b) above, fails to make any advances or payments
with respect to its Funding obligations (i.e., funds $0 with
respect to its aggregate Funding obligations), or gives a
notice of cessation of participation pursuant to this Section
8.1, the other Party (the "Remaining Party") shall have the
right to proceed with the independent development of the
Collaboration Product(s) at its own expense, provided,
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however, that in the event this Agreement is so terminated by
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either party and Baxter makes any payments under the Guaranty,
even after the termination of this Agreement and the Credit
Agreement, UroGen shall reimburse Baxter for ▇▇▇▇▇▇'▇ payment
under the Guaranty in the manner and in the amounts as
described in Section 1.2 of the Credit Agreement. In the event
Baxter gives notice of termination to UroGen pursuant to this
Section 8.1, effective as of the date of termination ▇▇▇▇▇▇'▇
obligations to provide Baxter Funding shall immediately
terminate. In addition, in the event that the Seller License
Agreement terminates without a concurrent transfer of the
Intellectual Property Assets to UroGen pursuant to the terms
and conditions of the Seller License Agreement and the Asset
Purchase Agreement (the "License Termination Date"), ▇▇▇▇▇▇'▇
obligations to UroGen under this Agreement will automatically
terminate without notice to UroGen or any third party
effective on the License Termination Date, UroGen will be
deemed to have elected to have unilaterally ceased all
participation in all Development Work under this Agreement as
of the License Termination Date, and Baxter will be deemed to
be the "Remaining Party" as of the License Termination Date
(but shall have no obligation with respect to the independent
development of the Collaboration Product(s)). Upon any such
cessation of participation in the Development Work:"
2. Amendments to the Credit Agreement. Capitalized terms used in
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this Section 2 and not herein defined shall have the meanings ascribed to such
terms in the Credit Agreement. The Credit Agreement is hereby amended as
follows:
(a) The recitals to the Credit Agreement shall be amended by
adding the following after the third recital to the Credit Agreement:
"WHEREAS, Baxter has agreed to enter into that certain
Guaranty Agreement
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dated as of February 28, 2000 between Baxter and Banc One (the
"Guaranty") pursuant to which Baxter guaranties Borrower's
obligations under a lease agreement, and Borrower has agreed
to reimburse Baxter for any payments made under the Guaranty
during the Baxter Funding Period (as such term is defined in
the Development Agreement) by adding any amounts Baxter pays
under the Guaranty to the Borrower's liabilities hereunder and
repaying such amounts in accordance with the terms hereof;
and"
(b) Section 1.2(a) of the Credit Agreement shall be
amended by deleting the first sentence thereto and inserting the following in
its place:
"Subject to the terms and conditions of this Agreement, Baxter
agrees to loan to Borrower from time to time during the
Commitment Period (as defined below) (i) such amounts to be
funded by Baxter as Baxter Funding during the Baxter Funding
Period under, and subject to the terms and conditions of,
Section 3.5(a) of the Development Agreement and (ii) such
amounts which Baxter may be required to pay under the Guaranty
(collectively, the "Credit Facility Loan"), which funds may be
repaid without penalty during the Commitment Period but may
not be reborrowed."
(c) Section 2 of the Credit Agreement shall be amended to
add a new subsection (iv) immediately following subsection (iii) as follows:
"(iv) any and all payments made by Baxter under the
Guaranty."
(d) Section 3 of the Credit Agreement shall be amended by
deleting Section 3 in its entirety and inserting the following in its place:
"LOAN ADVANCES; APPLICATION OF PAYMENTS. Each request for an
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advance under the Credit Facility Loan under this Agreement
shall be made by Borrower by delivering to Baxter a written
notice requesting funding under and pursuant to the terms and
conditions set forth in Section 3.5(a) of the Development
Agreement (a "Borrowing Notice"); provided, however, that no
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Borrowing Notice shall be required for any payments made by
Baxter under the Guaranty in order for such amount to be
deemed part of the Borrower's Liabilities hereunder. Baxter,
upon determination in its good faith judgment that the
conditions set forth in Section 4 hereof have been duly
satisfied, and subject to (i) ▇▇▇▇▇▇'▇ right at any time and
from time to time to decline to pay any portion of its funding
obligations under Section 3.5(a) of the Development Agreement,
and (ii) the terms and conditions of this Agreement and the
limitations set forth in Section 1, will fund the Baxter
Funding requested by Borrower in the Borrowing Notice by
advancing such amount under the Credit Facility Loan to the
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Borrower in immediately available funds pursuant to the
Borrower's wire transfer instructions pursuant to Section 3.5
of the Development Agreement in accordance with the terms and
conditions set forth therein, or, if Baxter determines that
such conditions have not been met, or that the amount
requested shall not be advanced by Baxter to Borrower, Baxter
will so notify Borrower."
(e) Section 4 of the Credit Agreement shall be amended by
inserting the following at the end of the section:
"Notwithstanding the foregoing, the conditions in subsections
(c) through (e) above are not required to be satisfied in
order for Baxter to make payments under the Guaranty, and all
such amounts paid by Baxter under the Guaranty shall be deemed
part of the Borrower's Liabilities."
(f) Section 5 of the Credit Agreement shall be amended with
the addition of the following language immediately following subsection (b):
"Notwithstanding the foregoing, the representations and
warranties in subsections (a) and (b) are not required to be
true and correct at the time Baxter may make any payments
under the Guaranty, and all such amounts paid by Baxter under
the Guaranty shall be deemed part of the Borrower's
Liabilities."
(g) Section 12 of the Credit Agreement shall be amended by
deleting Section 12.7 in its entirety and inserting the following in its place:
"12.7 In addition to all of Borrower's Liabilities under this
Agreement, Borrower agrees to hold Baxter harmless from, and
to indemnify Baxter, and each of its officers, directors,
employees, attorneys and agents, against, all losses, damages,
fees, liabilities, obligations, penalties, actions, suits,
claims, costs and expenses (including, without limitation,
attorneys' fees, costs and expenses), imposed on or incurred
by Baxter, whether prior to or from and after the date hereof,
whether direct, indirect or consequential, as a result of or
arising from or relating to any suit, investigation, action or
proceeding by any person, whether threatened or initiated,
asserting a claim for any legal or equitable remedy against
any person under any statute or regulation (other than suits
or other actions by the Borrower against Baxter), including
without limitation, any federal or state securities, labor or
environmental laws, or under any common law or equitable cause
or otherwise, arising from or in connection with any of the
following: (i) the
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negotiation, preparation, execution, performance or
enforcement of this Agreement or of any document executed in
connection with the transactions contemplated by this
Agreement; (ii) ▇▇▇▇▇▇'▇ furnishing of funds to Borrower under
this Agreement; or (iii) any matter relating to the financing
transactions contemplated by this Agreement or by any document
executed in connection with the transactions contemplated by
this Agreement including, without limitation, the Guaranty and
that certain Master Lease Agreement, dated February 28, 2000,
between UroGen and Banc One. Such indemnification shall be
part of the Borrower's Liabilities."
3. Except as hereby amended, all of the terms and conditions
of the Development Agreement and Credit Agreement shall remain in full force and
effect, and are hereby reaffirmed and ratified by the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed the day and year first above written.
▇▇▇▇▇▇ HEALTHCARE CORPORATION
By:__________________________________________
Its:_________________________________________
UROGEN CORPORATION
By:__________________________________________
Its:_________________________________________
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