EXHIBIT 10
AMENDMENT NO. 3 TO
REVOLVING CREDIT AND REIMBURSEMENT
AGREEMENT
THIS AMENDMENT NO. 3 TO REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT (the
"Amendment Agreement") is made and entered into this 30 day of June, 1995 by
and among IVAX CORPORATION, a Florida corporation having its principal place of
business in Miami, Florida (the "Borrower"), and NATIONSBANK OF FLORIDA,
NATIONAL ASSOCIATION and BANK OF AMERICA ILLINOIS (FORMERLY CONTINENTAL BANK
N.A.), in their capacities as agents (the "Agents") for each of the lenders (the
"Lenders") party to the Credit Agreement (as defined below). Unless the context
otherwise requires, all terms used herein without definition shall have the
definition provided therefor in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have entered into the
Revolving Credit and Reimbursement Agreement dated March 25, 1994, as amended by
those certain letter agreements (the "Letter Agreements") dated as of March 30,
1994 and April 27, 1995 among the Borrower, the Agents and the Lenders (as at
any time hereafter amended, restated, modified or supplemented, the "Credit
Agreement"), whereby the Lenders have made loans and advances to, and issued
letters of credit for the benefit of, the Borrower; and
WHEREAS, the Borrower, the Lenders and the Agents have agreed that the
Credit Agreement shall be amended in the manner set forth herein;
NOW, THEREFORE, in consideration of the premises and conditions herein set
forth, it is hereby agreed as follows:
1. AMENDMENT. Subject to the conditions hereof, the Credit Agreement
is hereby amended as follows:
a. A new definition is added to Section 1.01 which shall read as
follows:
"'Zenith' means Zenith Laboratories, Inc., a Florida corporation and
a Subsidiary of the Borrower;"
b. The definition in Section 1.01 of "Guarantors" is amended by adding
in line 4 thereof immediately following "a Delaware corporation," the
following phrase: "and Zenith immediately upon delivery of the Guaranty by
Zenith,";
c. The definition in Section 1.01 of "Guaranty" is amended by adding in
line 2 thereof immediately following "of even date herewith" the following
phrase: "and in the case of Zenith the Guaranty and Suretyship Agreement
dated the date of delivery thereof,";
d. The parties hereto acknowledge and agree that Zenith is, by virtue
of this Amendment Agreement, a Significant Subsidiary under the Credit
Agreement.
2. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent and
the Lenders to enter into this Amendment Agreement, the Borrower hereby
represents and warrants that the Credit Agreement has been re-examined by the
Borrower and that except as disclosed by the Borrower in writing to the Lenders
as of the date hereof:
(a) The representations and warranties made by the Borrower in
Article VI thereof are true on and as of the date hereof;
(b) There has been no material adverse change in the condition,
financial or otherwise, of the Borrower and its Subsidiaries taken as a
whole since March 31, 1995 which has not been disclosed in writing by the
Borrower to the Agent;
(c) The business and properties of the Borrower and its
Subsidiaries, taken as a whole, are not, and since March 31, 1995 have not
been, adversely affected in any substantial way as the result of any fire,
explosion, earthquake, accident, strike, lockout, combination of workers,
flood, embargo, riot, activities of armed forces, war or acts of God or the
public enemy, or cancellation or loss of any contracts material to the
Borrower and its Subsidiaries, taken as a whole; and
(d) After giving effect to this Amendment Agreement no condition
exists which, upon the effectiveness of the amendment contemplated hereby,
would constitute a Default or an Event of Default on the part of the
Borrower under the Credit Agreement.
3. CONSENT OF GUARANTORS. Each of the Guarantors has joined in the
execution of this Amendment Agreement for the purposes of consenting hereto and
to the Letter Agreement, and for the further purpose of confirming its guaranty
of Obligations of Borrower as provided in the Guaranty to which it is a party.
4. CONSENT OF LENDERS. By execution hereof, each of the Lenders
authorizes and requests the Agents to execute this Amendment Agreement and
consents to the terms hereof.
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5. CONDITIONS PRECEDENT. The effectiveness of this Amendment Agreement
is subject to the receipt by the Administrative Agent of the following:
(i) four counterparts of this Amendment Agreement duly
executed by all signatories hereto;
(ii) four counterparts of the Guaranty of Zenith in the form
attached hereto as Exhibit A, duly executed by Zenith;
(iii) four counterparts of the duly completed and executed
closing certificate of Zenith in the form attached hereto as Exhibit
B, with all exhibits referred to therein affixed thereto;
(iv) opinion or opinions of counsel for the Borrower and
Zenith satisfactory to the Agents as to (A) the authorization,
execution and delivery of this Amendment Agreement and the
enforceability of the same against the Borrower and Zenith in
accordance with its terms, and (B) the authorization, execution and
delivery by Zenith of the Guaranty by Zenith and the enforceability
of the same against Zenith in accordance with its terms; and
(v) copies of all additional agreements, instruments and
documents which the Administrative Agent may reasonably request,
such documents, when appropriate, to be certified by appropriate
governmental authorities.
All proceedings of the Borrower and each Guarantor, and all opinions and other
documents described above, relating to the matters provided for herein shall be
satisfactory to the Lenders, the Agents and their counsel.
6. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, condition, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that,
except as in this Amendment Agreement otherwise expressly stated, no
representations, warranties or commitments, express or implied, have been made
by any party to the other. None of the terms or conditions of this Amendment
Agreement may be changed, modified, waived or canceled orally or otherwise,
except
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by writing, signed by all the parties hereto, specifying such change,
modification, waiver or cancellation of such terms or conditions, or of any
proceeding or succeeding breach thereof.
7. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
8. COUNTERPARTS. This Amendment Agreement may be executed in any
number of counterparts, each of which shall be deemed an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument.
9. GOVERNING LAW. THIS AMENDMENT AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAW OF THE STATE OF FLORIDA, WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS. THE BORROWER HEREBY SUBMITS TO THE
JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF FLORIDA FOR THE
PURPOSES OF RESOLVING DISPUTES HEREUNDER OR UNDER ANY OF THE OTHER LOAN
DOCUMENTS TO WHICH IT IS A PARTY OR FOR PURPOSES OF COLLECTION.
10. ENFORCEABILITY. Should any one or more of the provisions of this
Amendment Agreement be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
11. CREDIT AGREEMENT. All references in any of the Loan Documents to
the Credit Agreement shall mean and include the Credit Agreement as amended
hereby.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
BORROWER:
WITNESS: IVAX CORPORATION
/s/ Dora B. Rubin By: /s/ Michael W. Fipps
Name: Michael W. Fipps
/s/ Amelia L. Duarte Title: Senior Vice President Finance
Chief Financial Officer
GUARANTORS:
WITNESS: GOLDLINE LABORATORIES, INC.
/s/ Dora B. Rubin By: /s/ Michael W. Fipps
Name: Michael W. Fipps
/s/ Amelia L. Duarte Title: Vice President
WITNESS: BAKER NORTON PHARMACEUTICALS, INC.
/s/ Dora B. Rubin By: /s/ Richard C. Pfenniger, Jr.
Name: Richard C. Pfenniger, Jr.
/s/ Amelia L. Duarte Title: Vice President
WITNESS: MCGAW, INC.
/s/ Dora B. Rubin By: /s/ Richard C. Pfenniger, Jr.
Name: Richard C. Pfenniger, Jr.
/s/ Amelia L. Duarte Title: Vice President
WITNESS: ZENITH LABORATORIES, INC.
/s/ Dora B. Rubin By: /s/ Michael W. Fipps
Name: Michael W. Fipps
/s/ Amelia L. Duarte Title: Vice President
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NATIONSBANK OF FLORIDA, NATIONAL
ASSOCIATION, as Agent and Lender
By: /s/ Sugeet Manchanda
Name: Sugeet Manchanda
Title: Vice President
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BANK OF AMERICA ILLINOIS, as Agent
and Lender
By: /s/ Laurens F. Schaad, Jr.
Name: Laurens F. Schaad, Jr.
Title: Vice President
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