Exhibit 10
REVOLVING CREDIT
AND
REIMBURSEMENT AGREEMENT
by and among
IVAX CORPORATION, as Borrower,
NORTON HEALTHCARE, LIMITED, as Co-Borrower
and
the Lenders party hereto or referenced herein,
and
NATIONSBANK, NATIONAL ASSOCIATION,
as Administrative and Documentation Agent
and Lender
and
BA SECURITIES, INC.,
as Syndication Agent
May 14, 1996
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Terms
1.01 Definitions........................................................... 2
1.02 Accounting Terms...................................................... 22
ARTICLE II
The Loans
2.01 Revolving Credit Facility............................................. 23
2.02 Payment of Interest................................................... 27
2.03 Payment of Principal.................................................. 28
2.04 Competitive Bid Loans................................................. 29
2.05 Notes................................................................. 33
2.06 Pro Rata Payments..................................................... 33
2.07 Reductions............................................................ 34
2.08 Decrease in Amounts................................................... 34
2.09 Conversions and Elections of Subsequent
Interest Periods...................................................... 34
2.10 Unused Fee............................................................ 35
2.11 Deficiency Advances................................................... 35
2.12 Adjustments by Administrative Agent................................... 36
2.13 Use of Proceeds....................................................... 36
2.14 Extension of Revolving Credit Termination Date........................ 36
2.15 Swing Line............................................................ 37
ARTICLE III
Letters of Credit
3.01 Letters of Credit..................................................... 39
3.02 Reimbursement......................................................... 40
3.03 Letter of Credit Fronting Fee......................................... 44
3.04 Administrative Fees and Reserves...................................... 44
ARTICLE IV
Yield Protection and Illegality
4.01 Additional Costs...................................................... 45
4.02 Suspension of Loans................................................... 46
4.03 Illegality............................................................ 47
4.04 Compensation.......................................................... 47
4.05 Alternate Loan and Lender............................................. 48
4.06 Taxes................................................................. 48
4.07 Restricted Lender..................................................... 50
4.08 Funding............................................................... 50
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ARTICLE V PAGE
ONE LOAN
5.01 One Loan.............................................................. 51
5.02 Guaranty.............................................................. 51
ARTICLE VI
Conditions to Making Loans and Issuing
Letters of Credit
6.01 Conditions of Initial Advance and Issuance
of Letters of Credit.................................................. 53
6.02 Conditions of Loans....................................................54
ARTICLE VII
Representations and Warranties
7.01 Representations and Warranties........................................ 56
ARTICLE VIII
Affirmative Covenants
8.01 Financial Reports, Etc................................................ 64
8.02 Maintain Properties................................................... 65
8.03 Existence, Qualification, Etc......................................... 65
8.04 Regulations and Taxes................................................. 66
8.05 Insurance. .......................................................... 66
8.06 True Books............................................................ 66
8.07 Right of Inspection................................................... 66
8.08 Observe all Laws...................................................... 67
8.09 Covenants Extending to Subsidiaries................................... 67
8.10 Officer's Knowledge of Default........................................ 67
8.11 Suits or Other Proceedings............................................ 67
8.12 Notice of Discharge of Hazardous Material or
Environmental Complaint. ............................................ 67
8.13 Indemnification....................................................... 67
8.14 Further Assurances.................................................... 68
8.15 ERISA Requirement..................................................... 68
8.16 Continued Operations.................................................. 68
8.17 Use of Proceeds....................................................... 69
8.18 McGaw................................................................. 69
8.19 Significant Subsidiary................................................ 69
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ARTICLE IX PAGE
Negative Covenants
9.01 Consolidated Tangible Net Worth...................................... 71
9.02 Consolidated Leverage Ratio.......................................... 71
9.03 Consolidated Fixed Charge Ratio...................................... 71
9.04 Indebtedness or Guaranteed Obligations............................... 71
9.05 Liens................................................................ 72
9.06 Transfer of Assets................................................... 73
9.07 Investments; Acquisitions............................................ 74
9.08 Merger or Consolidation.............................................. 75
9.09 Restricted Payments.................................................. 75
9.10 Change in Control.................................................... 75
9.11 Transactions with Affiliates......................................... 76
9.12 ERISA................................................................ 76
9.13 Fiscal Year.......................................................... 77
9.14 Dissolution, etc..................................................... 77
9.15 Rate Hedging Obligations............................................. 77
ARTICLE X
Events of Default and Acceleration
10.01 Events of Default................................................... 78
10.02 Administrative Agent to Act......................................... 82
10.03 Cumulative Rights................................................... 83
10.04 No Waiver........................................................... 83
10.05 Default............................................................. 83
10.06 Allocation of Proceeds.............................................. 83
ARTICLE XI
The Agents
11.01 Appointment......................................................... 85
11.02 Attorneys-in-fact................................................... 85
11.03 Limitation on Liability............................................. 85
11.04 Reliance............................................................ 86
11.05 Notice of Default................................................... 86
11.06 No Representations.................................................. 86
11.07 Indemnification..................................................... 87
11.08 Lender.............................................................. 87
11.09 Resignation......................................................... 88
11.10 Sharing of Payments, etc............................................ 88
11.11 Administrative Fees................................................. 89
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ARTICLE XII PAGE
Miscellaneous
12.01 Assignments and Participations...................................... 90
12.02 Notices............................................................. 92
12.03 Setoff.............................................................. 93
12.04 Survival............................................................ 94
12.05 Expenses............................................................ 94
12.06 Amendments.......................................................... 95
12.07 Counterparts........................................................ 96
12.08 Waivers by Borrowers................................................ 96
12.09 Termination......................................................... 97
12.10 Governing Law....................................................... 97
12.11 Indemnification..................................................... 98
12.12 Headings and References.............................................100
12.13 Severability........................................................100
12.14 Entire Agreement....................................................100
12.15 Agreement Controls..................................................101
12.16 Usury Savings Clause................................................101
12.17 Confidentiality.....................................................101
12.18 Accounts Receivable.................................................102
EXHIBIT A Commitments
EXHIBIT B Form of Assignment and Acceptance
EXHIBIT C Form of Appointment of Authorized Representative
EXHIBIT D Form of Borrowing Notice
EXHIBIT E-1 Form of Competitive Bid Note
EXHIBIT E-2 Form of Revolving Note
EXHIBIT E-3 Form of Swing Note
EXHIBIT F Form of Compliance Certificate
EXHIBIT G Guaranty
EXHIBIT H LC Account Agreement
EXHIBIT I Form of Permitted Acquisition Certificate
EXHIBIT J Form of Competitive Bid Quote Request
EXHIBIT K Form of Competitive Bid Quote
EXHIBIT L Form of Opinion of Counsel
EXHIBIT M Form of NHL Opinion
Schedule 1.01 Guarantors
Schedule 7.01(d) Significant Subsidiaries
Schedule 7.01(e) Investments
Schedule 7.01(f) Liabilities
Schedule 7.01(g) Liens
Schedule 7.01(h) Taxes
Schedule 7.01(i) Material Agreements
Schedule 7.01(j) Litigation
Schedule 7.01(m) Patents, Etc.
Schedule 7.01(o) Consents
Schedule 7.01(t) Employment Matters
Schedule 9.04 Indebtedness
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REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT, dated as of May 14,
1996 (the "Agreement"), is made by and among:
IVAX CORPORATION, a Florida corporation having its principal
place of business in Miami, Florida ("IVAX"); and
NORTON HEALTHCARE, LIMITED, an organization formed under the laws of
England having its principal place of business in Harlow, Essex, England ("NHL";
together with IVAX, the "Borrowers"); and
NATIONSBANK, NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States of America and having
a principal place of business in Miami, Florida ("NationsBank"), and BANK OF
AMERICA ILLINOIS, an Illinois state bank existing under the laws of the State of
Illinois and having its principal place of business in Chicago, Illinois
("BofA") and each other lender that is a signatory hereto or which may hereafter
execute and deliver an instrument of assignment with respect to this Agreement
pursuant to Section 12.01 (hereinafter NationsBank, BofA and such other lenders
may be referred to individually as a "Lender" or collectively as the "Lenders");
and
NATIONSBANK, NATIONAL ASSOCIATION, in its capacity as the
administrative and documentation agent for the Lenders (in such capacity, the
"Administrative Agent") and BA SECURITIES, INC., in its capacity as syndication
agent for the Lenders (the "Syndication Agent")(the Administrative Agent and the
Syndication Agent being herein, in their role as agents, individually referred
to as an "Agent" and collectively referred to as the "Agents");
W I T N E S S E T H:
WHEREAS, the Borrowers have requested that the Lenders make available
to the Borrowers a revolving credit facility of up to $425,000,000 which shall
include thereunder the NHL borrowing facility of $75,000,000, a letter of credit
facility of up to $20,000,000 and a swing line facility of up to $20,000,000,
the proceeds of such loans to be used to repay existing indebtedness of IVAX to
the Lenders, to redeem outstanding Senior Notes, to finance capital expenditures
and certain acquisitions and for working capital needs; and
WHEREAS, the Lenders are willing to make such facilities available to
the Borrowers upon the terms and conditions set forth herein;
NOW, THEREFORE, the Borrowers, the Lenders and the Agents hereby agree
as follows:
ARTICLE I
DEFINITIONS AND TERMS
1.01 DEFINITIONS. For the purposes of this Agreement, in addition to
the definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Absolute Rate" shall have the meaning assigned to such
term in Section 2.04(c)(ii)(C) hereof;
"Absolute Rate Auction" means a solicitation of Competitive
Bid Quotes setting forth Absolute Rates pursuant to Section 2.04
hereof;
"Absolute Rate Loans" means the Competitive Bid Loans the
interest rates on which are determined on the basis of Absolute Rates
set at Absolute Rate Auctions;
"Advance" means a borrowing of Loans under this Agreement on
any date consisting of the aggregate principal amount of such Loans;
"Advance Date Exchange Rate" means, with respect to a
specified Advance or Loan of an Alternative Currency, the Spot Rate of
Exchange as of the date two LIBOR Business Days preceding the date such
Advance is originally made, PROVIDED that, if such Advance or Loan is
continued for a subsequent Interest Period or converted pursuant to
Section 2.09, the Advance Date Exchange Rate with respect to such Loan
shall be the Spot Rate of Exchange two LIBOR Business Days preceding
the effective date of the latest continuation or conversion of such
Advance or Loan, and the Dollar Value of such Advance or Loan shall be
adjusted as set forth in Section 2.01(b); PROVIDED, further, that in
the case of a drawing under a Letter of Credit, the Spot Rate of
Exchange shall be as of the date of such drawing;
"Affiliate" means a Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is
under common control with either of the Borrowers; (ii) which
beneficially owns or holds 5% or more of any class of the outstanding
voting stock (or in the case of a Person which is not a corporation, 5%
or more of the equity interest) of either of the Borrowers; or (iii) 5%
or more of any class of the outstanding voting stock (or in the case of
a Person which is not a corporation, 5% or more of the equity interest)
of which is beneficially owned or held by either of the Borrowers. The
term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies
of a Person, whether through ownership of voting stock, by contract or
otherwise;
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"Alternative Currency" means Pounds Sterling, Deutsche Marks,
and, with the prior written consent of all Lenders and the
Administrative Agent, any other lawful currency other than Dollars
which is freely transferable and convertible into Dollars in the United
States currency market; PROVIDED, HOWEVER, that an Alternative Currency
shall only be available to the Borrowers if each Lender shall have
access to such Alternative Currency on terms reasonably acceptable to
such Lender;
"Alternative Currency Equivalent Amount" means, with respect
to a specified Alternative Currency and a specified Dollar amount, the
amount of such Alternative Currency into which such Dollar amount would
be converted, based on the applicable Advance Date Exchange Rate;
"Alternative Currency LIBOR Rate" means, for the Interest
Period for any Fixed Rate Loan of an Alternative Currency, the rate of
interest per annum determined pursuant to the following formula:
Alternative Currency Base Rate Applicable
LIBOR Rate = ----------------------- + Margin
1 - Reserve Requirement
"Alternative Currency Loan" means a Loan for which the rate of
interest is determined by reference to the Alternative Currency LIBOR
Rate;
"Applicable Commitment Percentage" means, for each Lender,
with respect to the Obligations hereunder (each a type of "credit
exposure"), including its Participations and its obligations hereunder
to an Issuer or to NationsBank to acquire Participations, a fraction
(expressed as a percentage), the numerator of which shall be the then
amount of such Lender's Revolving Credit Commitment and the denominator
of which shall be the Total Revolving Credit Commitment, which
Revolving Credit Commitment for each Lender as of the Closing Date is
as set forth in EXHIBIT A attached hereto and incorporated herein by
this reference; PROVIDED that the Applicable Commitment Percentage of
each Lender shall be increased or decreased to reflect any assignments
to or by such Lender effected in accordance with Section 12.01 hereof;
"Applicable Margin" means for each LIBOR Loan, Alternative
Currency Loan, Swing Line Loan, Letter of Credit Fee and the unused fee
that number of basis points per annum set forth below, based upon the
Consolidated Leverage Ratio for the four-quarter period most recently
ended as specified below:
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LETTER OF UNUSED
RATIO CREDIT AND LOANS FEE
----- ---------------- ------
a) Less than 1.00 to 1.00 35 12.5
b) Equal to or greater than
1.00 to 1.00 but less than
2.00 to 1.00
45 15
c) Equal to or greater than 2.00
to 1.00 but less than 3.00
to 1.00 55 17
d) Equal to or greater than 3.00
to 1.00 (subject in all events
to Section 9.02 hereof) 70 20
The Applicable Margin shall be established at the end of each fiscal
quarter of IVAX (the "Ratio Determination Date"). Any change in the
Applicable Margin following each Ratio Determination Date shall be
determined based upon the computations set forth in a Compliance
Certificate delivered to the Administrative Agent pursuant to Section
8.01(a) and (b), subject to review and approval of such computations by
the Administrative Agent, and shall be effective commencing on the date
following the date such certificate is received (or, if earlier, the
date such certificate is required to be delivered) until the day
following the date on which a new Compliance Certificate is delivered
or is required to be delivered, whichever shall first occur; PROVIDED
however, if the Borrowers shall fail to deliver any such certificate
within the applicable period set forth in Section 8.01(a) or (b), as
the case may be, then the Applicable Margin shall be 2% until the
appropriate certificate is so delivered. From the Closing Date to the
first Ratio Determination Date, the Applicable Margin shall be 45 basis
points for LIBOR Loans, Alternative Currency Loans, Swing Line Loans
and Letters of Credit and the unused fee shall be 15 basis points.
"Applicable Rate" means the Alternative Currency LIBOR
Rate applicable to any Alternative Currency.
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit
executed by the Borrowers from time to time and delivered to the Issuer
to support the issuance of Letters of Credit;
"Assignment and Acceptance" shall mean an Assignment and
Acceptance substantially in the form of EXHIBIT B (with blanks
appropriately filled in) delivered to the Administrative Agent
4
in connection with an assignment of a Lender's interest under
this Agreement pursuant to Section 12.01;
"Authorized Representative" means any of the Presidents,
Executive Vice Presidents, Chief Operating Officers or Vice Presidents
or Secretaries of the Borrowers or, with respect to financial matters,
the Treasurers or chief financial officers of the Borrowers or any
other person expressly designated by the Boards of Directors of the
Borrowers (or the appropriate committee thereof) as an Authorized
Representative of the Borrowers, as set forth from time to time in a
certificate in the form attached hereto as EXHIBIT C;
"Available Revolving Credit Commitment" means (i) until the
Senior Notes are paid in full and the Company's obligations thereunder
are extinguished, $337,000,000 and (ii) thereafter, $425,000,000;
"Base Rate" means, with respect to a LIBOR Loan and
Alternative Currency Loan for the Interest Period applicable
thereto,the average (rounded upward to the nearest one-hundredth
(1/100th) of one percent) per annum rate of interest determined by the
office of the Administrative Agent (each such determination to be
conclusive and binding) as of two LIBOR Business Days prior to the
first day of such Interest Period, as the effective rate at which
deposits in immediately available funds in Dollars or an Alternative
Currency, as the case may be, are being, have been, or would be offered
or quoted by the Administrative Agent to major banks in the applicable
interbank market for Eurodollar deposits or deposits of such
Alternative Currency, as the case may be, at any time during the LIBOR
Business Day which is the second LIBOR Business Day immediately
preceding the first day of such Interest Period, for a term comparable
to such Interest Period and in the amount of the LIBOR Loan and
Alternative Currency Loan. If no such offers or quotes are generally
available for such amount, the Administrative Agent shall be entitled
to determine the Base Rate by estimating in its reasonable judgment the
per annum rate (as described above) that would be applicable if such
quote or offers were generally available;
"Board" means the Board of Governors of the Federal
Reserve System (or any successor body);
"Borrowing Notice" means the notice delivered by an
Authorized Representative in the form attached hereto as
EXHIBIT D;
"Business Day" means any day which is not a Saturday, Sunday
or a day on which banks in the States of Florida, New York and North
Carolina are authorized or obligated by law, executive order or
governmental decree to be closed;
5
"Capital Leases" means all leases which are required to be
capitalized in accordance with Generally Accepted Accounting Principles
as in effect from time to time including Statement No. 13 of the
Financial Accounting Standards Board and any successor thereof;
"Closing Date" means the date as of which this Agreement is
executed by the Borrowers, the Lenders and the Agents and on which the
conditions set forth in Section 6.01 hereof have been satisfied;
"Code" means the Internal Revenue Code of 1986, as
amended, any successor provision or provisions and any
regulations promulgated thereunder;
"Competitive Bid Borrowing" shall have the meaning
assigned to such term in Section 2.04(b) hereof;
"Competitive Bid Loans" means the Loans provided for by
Section 2.04 hereof;
"Competitive Bid Notes" means the promissory notes
substantially in the form of EXHIBIT E-1;
"Competitive Bid Quote" means an offer in accordance with
Section 2.04(c) hereof by a Lender to make a Competitive Bid Loan with
one single specified interest rate;
"Competitive Bid Quote Request" shall have the meaning
assigned to such term in Section 2.04(b) hereof;
"Compliance Certificate" a certificate delivered at the
end of each fiscal quarter of IVAX in the form of EXHIBIT F;
"Consistent Basis" in reference to the application of
Generally Accepted Accounting Principles means the accounting
principles observed in the period referred to are comparable in all
material respects to those applied in the preparation of the audited
and interim unaudited financial statements, as the case may be, of IVAX
referred to in Section 7.01(f)(i) hereof;
"Consolidating Balance Sheet" means with respect to NHL and
its Subsidiaries the consolidating balance sheets, which (i) in the
case of a quarterly consolidating balance sheet, may not contain
eliminations of intercompany items and may be subject to normal year
end adjustments, and (ii) in the case of an annual balance sheet,
intercompany items shall be eliminated and normal year end adjustments
shall have been made;
"Consolidated Capital Expenditures" means for any period
the sum of (without duplication) (i) all expenditures for
6
items that are classified as "property, plant or equipment" or
comparable items on the consolidated balance sheet of IVAX and its
Subsidiaries, plus (ii) the amount of any Capital Leases entered into
by IVAX and its Subsidiaries during such period, excluding, however,
the amount of any capital expenditures paid for with the proceeds of
casualty insurance, all as determined in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis;
"Consolidated EBITDA" means, with respect to IVAX and its
Subsidiaries for any period of computation thereof, the sum of, without
duplication, (i) Consolidated Net Income, plus (ii) Consolidated
Interest Expense during such period, plus (iii) provision for taxes on
income during such period, plus (iv) amortization during such period,
plus (vi) without duplication, any depreciation during such period, all
determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis;
"Consolidated Fixed Charge Ratio" means, with respect to IVAX
and its Subsidiaries for the Four-Quarter Period ending on the date of
computation thereof, the ratio of (a) Consolidated EBITDA minus
Consolidated Capital Expenditures to (b) Consolidated Fixed Charges;
"Consolidated Fixed Charges" means, with respect to IVAX and
its Subsidiaries, for the periods indicated, the sum of, without
duplication, (i) Consolidated Interest Expense, (ii) dividends and
other shareholder distributions during such period and (iii) the
current portion of Consolidated Funded Indebtedness (less "Loans
Payables" as shown on the consolidated balance sheet of IVAX and its
Subsidiaries);
"Consolidated Funded Indebtedness" means, with respect to any
period of computation thereof, Indebtedness of IVAX and its
Subsidiaries determined in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis but excluding (i)
any Indebtedness incurred pursuant to the Receivables Program, and (ii)
Guaranteed Obligations of IVAX permitted pursuant to Section 9.04;
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the "interest expense" of IVAX and its
Subsidiaries, as reflected on the consolidated statement of operations
of IVAX and its Subsidiaries, all determined on a consolidated basis in
accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis;
"Consolidated Leverage Ratio" means the ratio of
Consolidated Funded Indebtedness to Consolidated EBITDA;
7
"Consolidated Net Income" means, for any period of computation
thereof, the net income of IVAX and its Subsidiaries as reflected on
the consolidated statement of operations of IVAX and its Subsidiaries,
all determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis; but
excluding as income: (i) net gains on the sale, conversion or other
disposition of capital assets not in the ordinary course of business,
(ii) net gains on the acquisition, retirement, sale or other
disposition of capital stock and other securities of IVAX or its
Subsidiaries, (iii) net gains on the collection of proceeds of life
insurance policies, (iv) any write-up of any asset to the extent such
write-up is included in income, and (v) any other net gain or credit of
an extraordinary nature as determined in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis;
"Consolidated Shareholders' Equity" means at any time as of
which the amount thereof is to be determined, the sum of all items
which are reflected in the "Stockholders' Equity" section in the
consolidated balance sheet of IVAX and its Subsidiaries, as determined
in accordance with Generally Accepted Accounting Principles applied on
a Consistent Basis;
"Consolidated Tangible Net Worth" means at any time as of
which the amount thereof is to be determined, Consolidated
Shareholders' Equity MINUS the book value of all assets which would be
treated as intangible assets under Generally Accepted Accounting
Principles and which are reflected as "Costs in excess of net assets of
acquired companies, net" and "Patents, trademarks, licenses and other
intangible assets, net" on the consolidated balance sheet of IVAX and
its Subsidiaries, such as (without limitation) goodwill (whether
representing the excess of cost over book value of assets acquired or
otherwise), capitalized expenses, unamortized debt discount and
expense, consignment inventory rights, patents, trademarks, trade
names, copyrights, franchises and licenses;
"Cost of Acquisition" means the sum of the cash portion of the
purchase price, as reflected in any definitive agreement to acquire all
or any portion of the stock or all or any portion of the assets of any
Person plus, without duplication, any Indebtedness assumed by IVAX or
its Subsidiaries in connection with such acquisition;
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder;
"Default Rate" means (i) with respect to each Fixed Rate Loan,
until the end of the Interest Period applicable thereto, a rate of two
percent (2%) plus the Fixed Rate applicable to
8
such Loan, and thereafter a rate of interest per annum which shall be
two percent (2%) plus the Floating Rate, (ii) with respect to Floating
Rate Loans, a rate of interest per annum which shall be two percent
(2%) plus the Floating Rate and (iii) in any case, the maximum rate
permitted by applicable law, if lower;
"Deutsche Mark" means the lawful currency of the Federal
Republic of Germany;
"Dollar Equivalent Amount" means, with respect to a specified
Alternative Currency amount, the amount of Dollars into which an
Alternative Currency amount would be converted, based on the applicable
Advance Date Exchange Rate;
"Dollar Value" of an Advance or a Loan in an Alternative
Currency means the Dollar Equivalent Amount of the principal amount of
such Advance or Loan with respect to such Advance or Loan, as recorded
in the Administrative Agent's records pursuant to Section 2.01(b);
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America;
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Administrative
Agent:
(a) Government Securities;
(b) the following debt securities of the following
agencies or instrumentalities of the United States of America
if at all times the full faith and credit of the United States
of America is pledged to the full and timely payment of all
interest and principal thereof:
(i) all direct or fully guaranteed obligations
of the United States Treasury; and
(ii) mortgage-backed securities and
participation certificates guaranteed by the Government
National Mortgage Association;
(c) the following obligations of the following agencies
or instrumentalities of the United States of America:
(i) participation certificates and debt
obligations of the Federal Home Loan Mortgage
Corporation;
9
(ii) consolidated debt obligations, and
obligations secured by a letter of credit, of the
Federal Home Loan Banks; and
(iii) debt obligations and mortgage-backed
securities of the Federal National Mortgage Association
which have not had the interest portion thereof severed
therefrom;
(d) obligations of any corporation organized under the
laws of any state of the United States of America or under the
laws of any other nation, payable in the United States of
America, expressed to mature not later than 92 days following
the date of issuance thereof and rated in an investment grade
rating category by S&P and Moody's;
(e) interest bearing demand or time deposits issued by
any Lender or certificates of deposit maturing within one year
from the date of acquisition issued by a bank or trust company
organized under the laws of the United States or of any state
thereof having capital surplus and undivided profits
aggregating at least $400,000,000 and being rated A-3 or
better by S&P or A or better by Moody's;
(f) Repurchase Agreements
(g) Pre-Refunded Municipal Obligations;
(h) shares of mutual funds which invest in obligations
described in paragraphs (a) through (g) above, the shares of
which mutual funds are at all times rated "AAA" by S&P;
(i) asset-backed remarketed certificates of
participation representing a fractional undivided interest in
the assets of a trust, which certificates are rated at least
"A-1" by S&P and "P-1" by Moody's;
(j) U.K. Gilts; and
(k) other foreign securities mutually agreed to by the
Borrowers and the Administrative Agent.
Obligations listed in paragraphs (a), (b) and (c) above which
are in book-entry form must be held in a trust account with the Federal
Reserve Bank or with a clearing corporation or chain of clearing
corporations which has an account with the Federal Reserve Bank;
"Environmental Laws" means, collectively, the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, the Superfund Amendments
10
and Reauthorization Act of 1986, the Resource Conservation and Recovery
Act, the Toxic Substances Control Act, as amended, the Clean Air Act,
as amended, the Clean Water Act, as amended, any other "Superfund" or
"Superlien" law or any other federal, or applicable state or local
statute, law, ordinance, code, rule, regulation, order or decree
regulating, relating to, or imposing liability or standards of conduct
concerning, any hazardous, toxic or dangerous waste, substance or
material;
"ERISA" means, at any date, the Employee Retirement Income
Security Act of 1974, as amended, and the regulations thereunder, all
as the same shall be in effect at such date;
"Event of Default" means any of the occurrences set forth
as such in Section 10.01 hereof;
"Federal Funds Effective Rate" for any day, as used herein,
means the rate per annum (rounded upward to the nearest 1/100 of 1%)
announced by the Federal Reserve Bank of New York (or any successor) on
such day as being the weighted average of the rates on overnight
Federal funds transactions arranged by Federal funds brokers on the
previous trading day, as computed and announced by such Federal Reserve
Bank (or any successor) in substantially the same manner as such
Federal Reserve Bank computes and announces the weighted average it
refers to as the "Federal Funds Effective Rate" as of the date of this
Agreement; provided, if such Federal Reserve Bank (or its successor)
does not announce such rate on any day, the "Federal Funds Effective
Rate" for such day shall be the Federal Funds Effective Rate for the
last day on which such rate was announced;
"Fiscal Year" means the 12 month period of each of the
Borrowers ending on December 31 of each calendar year and commencing on
January 1 of each calendar year;
"Fixed Rate" means a fixed rate for a fixed period of
time;
"Fixed Rate Loan" means any Loan or Advance which shall
bear interest at a Fixed Rate;
"Floating Rate" means the greater of (i) the Prime Rate or
(ii) the Federal Funds Effective Rate plus one-half of one percent
(1/2%), each change in the Floating Rate to be effective as of the
effective date of any change in the Prime Rate or the Federal Funds
Effective Rate giving rise thereto;
"Floating Rate Loan" means a Loan in Dollars for which
the rate of interest is determined by reference to the
Floating Rate;
11
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning any pension, retirement,
healthcare, death, disability or other employee benefit plan;
"Four-Quarter Period" means a period of four full consecutive
quarter annual periods, taken together as one accounting period;
"Funding Bank" means any banking institution approved by the
Administrative Agent located within a country which country's currency
has been approved by the Lenders as an Alternative Currency;
"Generally Accepted Accounting Principles" means those
principles of accounting set forth in pronouncements of the Financial
Accounting Standards Board, the American Institute of Certified Public
Accountants or which have other substantial authoritative support and
are applicable in the circumstances as of the date of a report, as such
principles are from time to time supplemented and amended;
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America
or the United Kingdom;
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, agency or instrumentality or political subdivision
thereof or any entity or officer exercising executive, legislative or
judicial, regulatory or administrative functions of or pertaining to
any government or any court, in each case whether a state of the United
States, the United States or foreign;
"Guaranteed Obligations" of any Person means (i) all
guaranties (including guaranties of guaranties and guaranties of
dividends and other monetary obligations), endorsements (other than
negotiable instruments for collection), assumptions and other
obligations with respect to, or to purchase or to otherwise pay or
acquire, Indebtedness of others including, without duplication,
reimbursement obligations under applications for letters of credit;
(ii) monetary obligations under leases and other contracts incurred by
another Person (other than a wholly-owned Subsidiary of the Borrowers)
and subsequently assumed by the Person in question; (iii) all
obligations to advance or supply funds in any manner (a) for the
purchase or payment of Indebtedness of another Person, or (b) to
maintain a minimum working capital, net
12
worth or other balance sheet condition or any income statement
condition of another Person and (iv) any request for payment under any
performance bond or indemnity agreement by the beneficiary thereof;
"Guarantors" means collectively (a) the Significant
Subsidiaries of IVAX and the NHL Guarantors, which on the Closing Date
are those Subsidiaries listed on SCHEDULE 1.01 and (b) each additional
Subsidiary designated from time to time by IVAX as a Guarantor;
"Guaranty" means each Guaranty and Suretyship Agreement of a
Guarantor of even date herewith in the form of EXHIBIT G in favor of
the Administrative Agent, for the benefit of itself and the Lenders, as
the same may be amended, modified or supplemented;
"Hazardous Material" means and includes any hazardous, toxic
or dangerous waste, substance or material, the generation, handling,
storage, disposal, treatment or emission of which is subject to any
Environmental Law;
"Indebtedness" means with respect to any Person, without
duplication, the sum of all items which would be classified as "Current
portion of long-term debt", "Loans payable" and "Long-term debt, net of
current portion" on the consolidated balance sheet of IVAX and its
Subsidiaries (excluding, however, any liability under the Receivables
Program), all as determined in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis;
"Interest Period" means:
(a) with respect to each LIBOR Loan and Alternative Currency
Loan a period commencing on the date such LIBOR Loan and Alternative
Currency Loan is made or converted and each subsequent period
commencing on the last day of the immediately preceding Interest Period
for such LIBOR Loan and Alternative Currency Loan, and ending, at the
applicable Borrower's option, on the date one, two, three or six months
thereafter as notified to the Administrative Agent by the Authorized
Representative of such Borrower three (3) LIBOR Business Days prior to
the beginning of such Interest Period in the case of a LIBOR Loan and
four (4) LIBOR Business Days prior to the beginning of such Interest
Period in the case of a Loan in an Alternative Currency; and
(b) with respect to any Absolute Rate Loan, the period
commencing on the date such Absolute Rate Loan is made and ending on
any Business Day up to 180 days thereafter, as IVAX may select as
provided in Section 2.04(b).
13
Notwithstanding the foregoing: (i) if any Interest Period for any
Competitive Bid Loan would otherwise end after the Revolving Credit
Termination Date, such Interest Period shall end on the Revolving
Credit Termination Date; (ii) if any Interest Period for any LIBOR Loan
or Alternative Currency Loan would otherwise end after the Revolving
Credit Termination Date, such Interest Period shall end on the
Revolving Credit Termination Date; (iii) each Interest Period that
would otherwise end on a day which is not a Business Day shall end on
the next succeeding Business Day (or, in the case of an Interest Period
for a LIBOR Loan or Alternative Currency Loan, if such next succeeding
Business Day falls in the next succeeding calendar month, on the next
preceding Business Day); (iv) any Interest Period which begins on the
last Business Day of a calendar month (or on a day on which there is no
corresponding date in the last month of the Interest Period) shall end
on the last Business Day of the subsequent month; (v) notwithstanding
clauses (i), (ii), (iii) and (iv) above, no Interest Period for any
Fixed Rate Loan (other than an Absolute Rate Loan) shall have a
duration of less than one month (in the case of a LIBOR Loan) and, if
the Interest Period for any Fixed Rate Loan (other than an Absolute
Rate Loan) would otherwise be a shorter period, such Loan shall not be
available hereunder for such period; and (vi) there shall be no more
than twelve (12) Interest Periods in effect on any day;
"Issuer" means NationsBank as the issuer of one or more
Letters of Credit as provided in Section 3.01 hereof;
"LC Account Agreement" means the LC Account Agreement dated as
of the date of initial issuance of a Letter of Credit between a
Borrower and an Issuer, as amended or modified from time to time, in
the form of EXHIBIT H attached hereto or such other form as shall be
acceptable to such Issuer;
"Lending Office" means, as to each Lender, the Lending Office
of such Lender designated on the signature pages hereof or in an
Assignment and Acceptance or such other office of such Lender (or of an
affiliate of such Lender) as such Lender may from time to time specify
to the Authorized Representative and the Administrative Agent as the
office by which its Loans are to be made and maintained;
"Letter of Credit" means a standby letter of credit issued by
the Issuer pursuant to Article III of this Agreement for the account of
either of the Borrowers in favor of a Person advancing credit or
securing an obligation on behalf of such Borrower or its Subsidiaries;
"Letter of Credit Commitment" means with respect to each
Lender, the obligation of such Lender to acquire Participations in
Letters of Credit up to an aggregate stated
14
amount at any one time outstanding equal to such Lender's Applicable
Commitment Percentage of the Total Letter of Credit Commitment as the
same may be increased or decreased from time to time pursuant to this
Agreement;
"Letter of Credit Facility" means the facility described in
Article III hereof providing for the issuance by the Issuer for the
account of either of the Borrowers of Letters of Credit in an aggregate
stated amount at any time outstanding not exceeding the Total Letter of
Credit Commitment;
"LIBOR Business Day" means a Business Day on which the
relevant international financial markets are open for the transaction
of the business contemplated by this Agreement in London, England and
New York, New York;
"LIBOR Loan" means a Loan in Dollars for which the rate
of interest is determined by reference to the LIBOR Rate;
"LIBOR Rate" means, for the Interest Period for any LIBOR
Loan, the rate of interest per annum determined pursuant to the
following formula:
BASE RATE Applicable
LIBOR Rate = ----------------------- + Margin
1 - Reserve Requirement
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, each Borrower and its
Subsidiaries shall be deemed to be the owners of any property which
either of them have acquired or hold subject to a conditional sale
agreement, financing lease, or other arrangement pursuant to which
title to the property has been retained by or vested in some other
Person for security purposes;
"Loan" or "Loans" means any of the Fixed Rate Loans or
Floating Rate Loans or Competitive Bid Loans or Swing Line
Loans;
"Loan Documents" means this Agreement, the Notes, the
Guaranties, the Guaranty Agreement of IVAX, Applications and Agreements
for Letters of Credit, the LC Account Agreement, the Pledge Agreement
and all other instruments and documents heretofore or hereafter
executed or delivered to and in favor of any Lender or the
Administrative Agent in connection with the Loans or the Letters of
Credit made, issued or created
15
under this Agreement as the same may be amended, modified or
supplemented from the time to time;
"McGaw" means McGaw, Inc., a corporation organized and
existing under the laws of the State of Delaware, all of the issued and
outstanding capital stock of which is owned by IVAX;
"Moody's" means Moody's Investors Service, Inc., a Delaware
corporation;
"Multi-employer Plan" means an employee pension benefit plan
covered by Title IV of ERISA and in respect of which the Borrower or
any Subsidiary is an "employer" as described in Section 4001(b) of
ERISA, which is also a multi-employer plan as defined in Section
4001(a)(3) of ERISA;
"NHL Guarantors" means IVAX and each Subsidiary of NHL which
has assets that represent more than 10% of the consolidated total
assets of NHL and its Subsidiaries;
"NHL Sublimit" means $75,000,000;
"Notes" means, collectively, the Competitive Bid Notes, the
Swing Note and the Revolving Notes of the Borrowers evidencing Loans,
executed and delivered to the Lenders as provided in Section 2.05
hereof, with appropriate insertions as to amounts, dates and names of
Lenders;
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrowers with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) the Reimbursement
Obligations, (iii) all liabilities of Borrowers to any Lender which
arise under a Swap Agreement, and (iv) the payment and performance of
all other obligations, liabilities and Indebtedness of the Borrowers to
the Lenders, the Administrative Agent or the Agents hereunder, under
any one or more of the other Loan Documents or with respect to the
Loans;
"Outstanding Letters of Credit" means all undrawn amounts, and
in the case of Letters of Credit issued in an Alternative Currency the
Dollar Equivalent Amount thereof, of Letters of Credit plus
Reimbursement Obligations;
"Participation" means, with respect to any Lender (i) (other
than the Issuer of a particular Letter of Credit), the extension of
credit represented by the participation of such Lender hereunder in the
liability of an Issuer in respect of a Letter of Credit issued by such
Issuer in accordance with the terms hereof or (ii) (other than
NationsBank), the extension of credit represented by the participation
of such Lender hereunder in the liability of NationsBank in respect of
16
a Swing Line Loan made by NationsBank in accordance with the terms
hereof;
"Permitted Acquisition" means an acquisition of a Person or
the assets of a Person which Person is engaged in the same general line
of business of IVAX or its Subsidiaries, or those lines of business
related to the health care industry or personal care industry if the
governing board or shareholders of such Person does not oppose such
Acquisition and if the Cost of Acquisition exceeds $75,000,000 IVAX
shall have furnished to the Administrative Agent a certificate in the
form of EXHIBIT I containing information required therein for IVAX and
the Person or assets to be acquired on a historical pro forma basis as
at the most recent date for which a certificate has been delivered to
the Administrative Agent under Section 8.01 hereof, demonstrating that
after giving effect to such acquisition no Default or Event of Default
exists or would exist hereunder;
"Person" means an individual, partnership, corporation, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof;
"Personal Care Product Group" means the reporting group, as
reflected in the consolidating financial statements of IVAX under the
caption "Personal Care Products Division";
"Pledge Agreement" means the Pledge Agreement of even date
herewith from IVAX to the Administrative Agent, for the benefit of the
Lenders, pursuant to which IVAX has pledged to the Administrative Agent
as security for the Obligations all of the issued and outstanding
capital stock of McGaw;
"Pounds Sterling" means the lawful currency of the United
Kingdom;
"Pre-Refunded Municipal Obligations" means obligations of any
state of the United States of America or of any municipal corporation
or other public body organized under the laws of any such state which
are rated, based on the escrow, in the highest investment rating
category by both S&P and Moody's and which have been irrevocably called
for redemption and advance refunded through the deposit in escrow of
Government Securities or other debt securities which are (i) not
callable at the option of the issuer thereof prior to maturity, (ii)
irrevocably pledged solely to the payment of all principal and interest
on such obligations as the same becomes due and (iii) in a principal
amount and bear such rate or rates of interest as shall be sufficient
to pay in full all principal of, interest, and premium, if any, on such
obligations as the same becomes due as verified by a nationally
recognized firm of certified public accountants;
17
"Prime Rate" means the rate of interest per annum announced
publicly by the Administrative Agent as its prime rate from time to
time. The Prime Rate is not necessarily the best or the lowest rate of
interest offered by the Administrative Agent;
"Principal Office" means the office of the Administrative
Agent at Independence Center, 15th Floor, Charlotte, North Carolina
28255, Attention: Corporate Credit Support or such other office and
address as the Administrative Agent may from time to time designate;
"Rate Hedging Obligations" means any and all obligations of
the Borrowers, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions
therefor), under (a) any and all agreements, devices or arrangements
designed to protect at least one of the parties thereto from the
fluctuations of interest rates, exchange rates or forward rates
applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; and (b) any
and all cancellations, buybacks, reversals, terminations or assignments
of any of the foregoing;
"Receivables Program" means a securitization program of IVAX
and its Subsidiaries yielding net proceeds of up to $75,000,000
(minimum advance rate 80%);
"Regulation D" means Regulation D of the Board as the
same may be amended or supplemented from time to time;
"Regulatory Change" means any change effective after the
Closing Date in United States federal or state laws or regulations
(including Regulation D and capital adequacy regulations) or foreign
laws or regulations or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks,
which includes any of the Lenders, under any United States federal or
state or foreign laws or regulations (whether or not having the force
of law) by any court or governmental or monetary authority charged with
the interpretation or administration thereof or compliance by any
Lender with any request or directive regarding capital adequacy,
including with respect to "highly leveraged transactions," whether or
not having the force of law and whether or not failure to comply
therewith would be unlawful;
18
"Reimbursement Obligation" shall mean at any time, the
obligation of the applicable Borrower with respect to any Letter of
Credit to reimburse an Issuer and the Lenders to the extent of their
respective Participations (including by the receipt by an Issuer of
proceeds of Loans pursuant to Section 3.02) for amounts theretofore
paid by an Issuer pursuant to a drawing under such Letter of Credit;
"Repurchase Agreement" means a repurchase agreement entered
into with any financial institution whose debt obligations or
commercial paper are rated "A" by either of S&P or Moody's or "A-1" by
S&P or "P-1" by Moody's;
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating at least 51% of
the aggregate Credit Exposures of all the Lenders on such date. For
purposes of the preceding sentence, the amount of the "CREDIT EXPOSURE"
of each Lender shall be equal to the aggregate principal amount of the
Loans without regard to any Competitive Bid Loans or Swing Line Loans
owing to such Lender plus the aggregate unutilized amounts of such
Lender's Revolving Credit Commitment plus the amount of such Lender's
Applicable Commitment Percentage of Outstanding Letters of Credit;
provided that, if any Lender shall have failed to pay to an Issuer its
Applicable Commitment Percentage of any drawing under any Letter of
Credit resulting in an outstanding Reimbursement Obligation, such
Lender's Credit Exposure attributable to Letters of Credit,
Reimbursement Obligations and the Letter of Credit Commitment shall be
deemed to be held by the Issuer of such Letter of Credit for purposes
of this definition;
"Reserve Requirement" means, for any day, that percentage
(expressed as a decimal) which is in effect from time to time under
Regulation D of the Board or other applicable banking regulator, as
such regulation may be amended from time to time or any successor
regulation, as the maximum reserve requirement (including, without
limitation, any basic, supplemental, emergency, special, or marginal
reserves) applicable with respect to Eurocurrency liabilities as that
term is defined in Regulation D (or against any other category of
liabilities that includes deposits by reference to which the interest
rate of a Fixed Rate Loan is determined), whether or not the applicable
Lender has any Eurocurrency liabilities subject to such reserve
requirement at that time. A Fixed Rate Loan shall be deemed to
constitute Eurocurrency liabilities and as such shall be deemed subject
to reserve requirements without benefits of credit for proration,
exceptions or offsets that may be available from time to time to the
applicable Lender. The Fixed Rate shall be adjusted automatically on
and as of the effective date of any change in the Reserve Requirement;
19
"Revolving Credit Advance Account" means an account on the
books of the Administrative Agent in which
(i) each Advance by the Administrative Agent pursuant
to Section 2.01 shall be debited thereto by recording therein
on the date of such Advance a debit entry in the amount of
such Advance; and
(ii) each payment made to the Administrative Agent for
credit to the Revolving Credit Advance Account shall be
credited thereto by recording therein on the date paid to the
Administrative Agent a credit entry in the amount of such
payment;
"Revolving Credit Commitment" means with respect to each
Lender, the obligation of such Lender to make Loans to the Borrowers up
to an aggregate principal amount at any one time outstanding equal to
such Lender's percentage as set forth on EXHIBIT A hereto of the Total
Revolving Credit Commitment as the same may be increased or decreased
from time to time pursuant to this Agreement;
"Revolving Credit Debit Balance" means an amount equal to the
excess, if any, of all debit entries over all credit entries required
to be recorded in the Revolving Credit Advance Account up to and
including the date of computation;
"Revolving Credit Facility" means the facility described in
Article II hereof providing for Loans to the Borrowers by the Lenders
in the aggregate principal amount of Total Revolving Credit Commitment
less the aggregate amount of Outstanding Letters of Credit, the
aggregate amount of outstanding Competitive Bid Loans and the aggregate
amount of outstanding Swing Line Loans;
"Revolving Credit Termination Date" means (i) May 14, 2001 or
(ii) such earlier date of termination of Lenders' obligations pursuant
to Section 10.01 upon the occurrence of an Event of Default, or (iii)
such date as the Borrowers may voluntarily permanently terminate the
Revolving Credit Facility by payment in full of all Obligations
(including the discharge of all Obligations of the Lenders with respect
to Letters of Credit and Participations and Competitive Bid Loans and
Swing Line Loans) or (iv) such later date as the Borrowers and the
Lenders shall agree in writing pursuant to Section 2.14 hereof;
"Revolving Notes" shall mean the promissory notes
substantially in the form of EXHIBIT E-2;
"S&P" means Standard & Poor's Rating Division of McGraw
Hill Corporation, Inc., a New York corporation;
20
"Senior Notes" means the 10 3/8% Senior Notes due 1999 of
McGaw in the original principal amount of $93,000,000;
"Significant Subsidiaries" means (a) in the case of IVAX, each
Subsidiary of IVAX which is an entity organized within the United
States, and (i) represents more than 10% of the consolidated total
assets of IVAX and its Subsidiaries or (ii) contributes more than 10%
of the Consolidated Net Income of IVAX and its Subsidiaries such
determination to be made at the end of each Fiscal Year of the
Borrower, and (b) in the case of NHL, each Subsidiary of NHL which
represents more than 10% of the consolidated total assets of NHL and
its Subsidiaries;
"Single Employer Plan" means any employee pension benefit plan
covered by Title IV of ERISA and in respect of which either of the
Borrower or any Subsidiary of such Borrower is an "employer" as
described in Section 4001(b) of ERISA, which is not a Multi-employer
Plan;
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including, without limitation, Guaranteed Obligations; and
(ii) it is then able and expects to be able to pay its
debts as they mature; and
(iii) it has capital sufficient to carry on its business
as conducted and as proposed to be conducted;
"Specialty Chemicals Group" means the reporting group as
reflected in the consolidating financial statements of IVAX under the
caption "Chemical Division";
"Spot Rate of Exchange" means, (i) in determining the Dollar
Equivalent Amount of a specified Alternative Currency amount as of any
date, the spot exchange rate determined by the Administrative Agent in
accordance with its usual procedures for the purchase by the
Administrative Agent of Dollars with such Alternative Currency at
approximately 10:00 A.M., Charlotte, North Carolina time on the
Business Day that is two (2) LIBOR Business Days prior to such date,
and (ii) in determining the Alternative Currency Equivalent Amount of a
specified Dollar amount on any date, the spot exchange rate determined
by the Administrative Agent in accordance with its usual procedures for
the purchase by the Administrative Agent of such Alternative Currency
with Dollars at approximately 10:00 A.M., Charlotte, North Carolina
time on the LIBOR
21
Business Day that is two (2) LIBOR Business Days prior to such date;
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding voting stock or more than 50% of all
equity interests is owned directly or indirectly by either of the
Borrowers and/or by one or more of such Borrower's Subsidiaries;
"Swap Agreement" means one or more agreements with respect to
Indebtedness evidenced by the Notes between either Borrower and another
Person, on terms mutually acceptable to such Borrower and such Person,
which agreements create Rate Hedging Obligations;
"Swing Line" means the revolving line of credit established
by NationsBank pursuant to Section 2.15;
"Swing Line Loans" means Loans made by NationsBank to the
Borrowers pursuant to Section 2.15;
"Swing Note" means the promissory note substantially in
the form of EXHIBIT E-3;
"Syndicated Loans" shall mean the Loans which are not
Competitive Bid Loans or Swing Line Loans;
"Total Letter of Credit Commitment" means an amount not
to exceed $20,000,000;
"Total Revolving Credit Commitment" means $425,000,000.
1.02 ACCOUNTING TERMS. All accounting terms not specifically defined
herein shall have the meanings assigned to such terms and shall be interpreted
in accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis; provided, however, if any change in Generally Accepted
Accounting Principles in effect on the Closing Date shall result in a change in
any calculation required to determine compliance with any provision contained in
this Agreement, the Borrowers and the Required Lenders will amend such provision
in a manner to reflect such change such that the determination of compliance
with such provision shall yield the same result as would have obtained prior to
such change in Generally Accepted Accounting Principles. Until an amendment is
entered into covenants shall be calculated in accordance with Generally Accepted
Accounting Principles as in effect immediately preceding such change.
22
ARTICLE II
THE LOANS
2.01 REVOLVING CREDIT FACILITY
(a) COMMITMENT. Subject to the terms and conditions of this Agreement,
each Lender severally agrees to make Advances in Dollars or an Alternative
Currency (as specified in the respective Borrowing Notice) to IVAX or NHL, as
the case may be, as specified in the Borrowing Notice, from time to time from
the Closing Date until the Revolving Credit Termination Date, on a pro rata
basis as to the total borrowing requested by such Borrower on any day determined
by its Applicable Commitment Percentage, up to but not exceeding a Dollar Value
equal to the Revolving Credit Commitment of such Lender, PROVIDED, however, that
the Lenders will not be required and shall have no obligation to make any
Advance (i) so long as a Default or an Event of Default has occurred and is
continuing or (ii) if maturity of the Notes has been accelerated as a result of
an Event of Default; PROVIDED further, however, that immediately after giving
effect to each Advance, the Dollar Value of outstanding Loans plus the amount of
all Outstanding Letters of Credit shall not exceed the Available Revolving
Credit Commitment and PROVIDED further that no Advance shall be made to NHL if,
immediately after giving effect to such Advance, NHL's Loans plus the amount of
the outstanding Letters of Credit of NHL exceed the NHL Sublimit. Within such
limits, the Borrowers may borrow, repay and reborrow hereunder, on a Business
Day in the case of a Floating Rate Loan and on a LIBOR Business Day in the case
of a Fixed Rate Loan, from the Closing Date until, but (as to borrowings and
reborrowings) not including, the Revolving Credit Termination Date; PROVIDED,
however, that (x) no Fixed Rate Loan shall be made which has an Interest Period
that extends beyond the Revolving Credit Termination Date and (y) each Fixed
Rate Loan may, subject to the provisions of Section 2.09, be repaid only on the
last day of the Interest Period with respect thereto.
(b) AMOUNTS, ADVANCES AND RATE SELECTION. (i) Each request for an
Advance of an Alternative Currency under a Borrowing Notice shall constitute
such Borrower's request for a Loan of the Dollar Value of the amount of the
Alternative Currency specified in such Borrowing Notice and for such Loan to be
made available by the Lenders to such Borrower in the Alternative Currency
Equivalent Amount of such Dollar Value (determined based on the Advance Date
Exchange Rate applicable to such Advance). The principal amount outstanding on
any Loan shall be recorded in the Administrative Agent's records in Dollars (in
the case of an Advance of an Alternative Currency as if the Loan had initially
been made in Dollars), based on the amount of such Advance in the case of any
LIBOR Loan Advance or Floating Rate Loan Advance and on the Dollar Value of the
initial Advance in the case of an Alternative Currency Loan Advance, as reduced
from time to time by the Dollar Equivalent Amount (based on the Advance Date
Exchange Rate applicable to such
23
Advance) of any principal payments with respect to such Advance. In the event a
Fixed Rate Loan of an Alternative Currency is continued, such election to
continue the Fixed Rate Loan shall be treated as an Advance and the
Administrative Agent shall notify the applicable Borrower and the Lenders of the
Advance Date Exchange Rate, Interest Period and the Alternative Currency LIBOR
Rate for such continued Alternative Currency Loan. The Lenders shall each be
deemed to have made an Advance to such Borrower of its Applicable Commitment
Percentage of such Alternative Currency Loan and the Administrative Agent shall
apply the Advance Date Exchange Rate for such new Interest Period to such
continued Alternative Currency Equivalent Amount to determine the new Dollar
Value of such Alternative Currency Loan and shall adjust its books and the
Revolving Credit Debit Balance accordingly. In the event that such adjustment
with respect to a continued Loan would cause the total Dollar Value of
outstanding Loans plus Outstanding Letters of Credit to exceed the Available
Revolving Credit Commitment or the NHL Sublimit, the Borrowers shall,
immediately on the effective date of such continuation, repay (a "Rate
Adjustment Payment") the portion of such converted Alternative Currency Loan
(applying the new Advance Date Exchange Rate) necessary to ensure that the total
Dollar Value of all outstanding Loans plus Outstanding Letters of Credit does
not exceed the Available Revolving Credit Commitment, and, in the case of NHL,
the NHL Sublimit, PROVIDED FURTHER that the Borrowers shall not be required to
pay any additional compensation pursuant to Section 4.04(a) with respect to a
prepayment of a Loan required by this sentence if such prepayment is made
immediately on the effective date of the continuation giving rise to such
prepayment. For the purposes of determining the maximum amount of Loans plus
Outstanding Letters of Credit that may be outstanding hereunder, it is intended
by the parties that all Loans shall be the functional equivalent of Loans made
and repaid (based on the applicable Advance Date Exchange Rate for each Advance)
in Dollars. It is recognized that one or more Lenders may elect to record Loans
or Advances in Alternative Currencies. The Administrative Agent shall maintain
records sufficient to identify at any time, (i) the Advance Date Exchange Rate
with respect to each Advance, and (ii) the portion of the Revolving Credit Debit
Balance attributable to each Advance. There shall be no more than four (4) Loans
of an Alternative Currency outstanding at any one time.
(ii) The aggregate unpaid amount (including with respect to Loans of
Alternative Currencies, the total Dollar Value) of the Loans plus Outstanding
Letters of Credit shall not exceed at any time an amount equal to the Available
Revolving Credit Commitment. Each Loan and each conversion under Section 2.09
shall be (A) in the case of Loans in Dollars, in an amount not less than
$1,000,000 and in integral multiples of $1,000,000, and (B) in the case of
Alternative Currencies in an amount not less than $1,000,000 (or the equivalent
thereof in any Alternative Currency), and, if greater, an integral multiple of
$1,000,000 (or the equivalent thereof in any Alternative Currency).
24
(iii) An Authorized Officer shall give the Administrative Agent (A) at
least four (4) LIBOR Business Days irrevocable telecopy or telex notice of each
Alternative Currency Loan (whether representing an additional borrowing
hereunder or the conversion of borrowing hereunder) prior to 10:00 A.M.,
Charlotte, North Carolina time, (B) at least three (3) LIBOR Business Days
irrevocable telecopy or telex notice prior to 11:00 A.M., Charlotte, North
Carolina time in the case of Fixed Rate Loans in Dollars (whether representing
an additional borrowing hereunder or the conversion of borrowing hereunder) and,
(C) irrevocable telephonic or telefacsimile notice of each Floating Rate Loan
representing a borrowing or conversion hereunder prior to 11:00 A.M. Charlotte,
North Carolina time on the day of such proposed Floating Rate Loan. Each such
Borrowing Notice, which shall be effective upon receipt by the Administrative
Agent, shall specify the type of Loan (Fixed Rate or Floating Rate), whether
Dollar or Alternative Currency, amount of the Loan for which the Advance is to
be made, the date of borrowing and, in the case of a Fixed Rate Loan, the
Interest Period to be used in the computation of interest. The Authorized
Officer shall provide the Administrative Agent written confirmation of each such
telephonic notice on the same day by telefacsimile transmission in the form of a
Borrowing Notice in the form attached hereto as EXHIBIT D, in each case with
appropriate insertions, but failure to provide such confirmation shall not
affect the validity of such telephonic notice. The duration of the initial
Interest Period for each Loan shall be as specified in the initial Borrowing
Notice. The Borrowers shall have the option to elect the duration of subsequent
Interest Periods and to convert the Loans in accordance with Section 2.09
hereof. If the Administrative Agent does not receive a notice of election of
duration of an Interest Period or to convert by the time prescribed hereby and
by Section 2.09 hereof, the applicable Borrower shall be deemed to have elected
a Floating Rate Loan bearing interest at the Floating Rate.
(iv) Notice of receipt of each Borrowing Notice shall be provided by
the Administrative Agent to each Lender by telecopy or telex with reasonable
promptness, but not later than 12:00 noon, Charlotte, North Carolina time on the
same day as Administrative Agent's receipt of such notice from the Borrower
prior to 10:00 A.M. in the case of an Alternative Currency Loan and 11:00 A.M.
in the case of a Fixed Rate Loan in Dollars and a Floating Rate Loan. At
approximately 9:30 A.M. Charlotte, North Carolina time two (2) LIBOR Business
Days preceding the date specified for an Advance of an Alternative Currency, the
Administrative Agent shall determine the Advance Date Exchange Rate and the
Applicable Rate. Not later than 10:15 A.M. Charlotte, North Carolina time two
(2) LIBOR Business Days preceding the date specified for each Advance of an
Alternative Currency, the Administrative Agent shall provide the applicable
Borrower and each Lender notice by telefacsimile transmission of the Advance
Date Exchange Rate applicable to such Advance, and the applicable Alternative
Currency Equivalent Amount of the Loan or Loans required to be made by each
Lender on such
25
date, and the Dollar Value of such Loan or Loans and the Applicable Rate.
(v) In the case of Advances in Dollars, each Lender shall, pursuant to
the terms and conditions of this Agreement, not later than 12:00 noon,
Charlotte, North Carolina time on the date specified for such Advance in the
case of a Fixed Rate Loan in Dollars and 2:00 P.M. Charlotte, North Carolina
time on the date specified for such Advance for a Floating Rate Loan, make the
amount of the Advance to be made by it on such day available to the
Administrative Agent by depositing or transferring the proceeds thereof in
immediately available funds to the Administrative Agent, at the Principal
Office. The amount so received by the Administrative Agent shall, subject to the
terms of this Agreement, be made available promptly upon receipt to the
applicable Borrower by deposit of the proceeds to an account of such Borrower
maintained at the Principal Office or otherwise as shall be directed in the
applicable Borrowing Notice.
(vi) In the case of Advances of an Alternative Currency, not later than
9:00 A.M., Charlotte, North Carolina time on the date specified for each
Advance, each Lender shall, pursuant to the terms and subject to the conditions
of this Agreement, make the amount of the Loan or Loans to be made by it on such
day available to the applicable Borrower at the Funding Bank, to the account of
the Administrative Agent with the Funding Bank. The amount so received by the
Funding Bank shall, subject to the terms and conditions of the Loan Documents
and upon instruction from the Administrative Agent to the Funding Bank on the
same day but no later than 9:00 A.M. Charlotte, North Carolina time, be made
available to the applicable Borrower by delivery of the Alternative Currency
Equivalent Amount to such Borrower's account with the Funding Bank.
(vii) Notwithstanding the foregoing, if a drawing is made under any
Letter of Credit prior to the Revolving Credit Termination Date and the
applicable Borrower shall not immediately reimburse Issuer for the amount of
such draw or payment, then notice of such drawing or payment shall be provided
promptly by Issuer to the Administrative Agent and the Administrative Agent
shall provide notice to each Lender by telephone. If notice to the Lenders of a
drawing under any Letter of Credit is given by the Administrative Agent at or
before 12:00 noon Charlotte, North Carolina time on any Business Day, the
applicable Borrower shall be deemed to have requested, and each Lender shall,
subject to the conditions of this Agreement, make a Floating Rate Loan under the
Revolving Credit Facility in the amount of such Lender's Applicable Commitment
Percentage of such drawing or payment (and in the case of a drawing in an
Alternative Currency, a Floating Rate Loan, in an amount equal to such Lender's
Applicable Commitment Percentage of the Dollar Equivalent Amount of such drawing
or payment determined on the basis of the Spot Rate of Exchange on the date of
drawing under the Letter of Credit) and shall pay such amount to
26
the Administrative Agent for the account of the Issuer at the Principal Office
in Dollars and in immediately available funds before 2:30 P.M. Charlotte, North
Carolina time on the same Business Day. If notice to the Lenders is given by the
Administrative Agent after 12:00 noon Charlotte, North Carolina time on any
Business Day, the applicable Borrower shall be deemed to have requested, and
each Lender shall, pursuant to the terms and subject to the conditions of this
Agreement, make a Floating Rate Loan under the Revolving Credit Facility in the
amount of such Lender's Applicable Commitment Percentage of such drawing or
payment (and in the case of a drawing in an Alternative Currency, a Floating
Rate Loan, in an amount equal to such Lender's Applicable Commitment Percentage
of the Dollar Equivalent Amount of such drawing or payment determined on the
basis of the Spot Rate of Exchange on the date of drawing under the Letter of
Credit) and shall pay such amount to the Administrative Agent for the account of
the Issuer at the Principal Office in Dollars and in immediately available funds
before 12:00 noon Charlotte, North Carolina time on the next following Business
Day. Such Floating Rate Loan shall continue unless and until the applicable
Borrower converts such Floating Rate Loan in accordance with the terms of
Section 2.09 hereof.
2.02 PAYMENT OF INTEREST. (a) Each Borrower shall pay its respective
interest to the Administrative Agent for the account of each Lender on the
outstanding and unpaid principal amount of each Loan made by such Lender for the
period commencing on the date of such Loan until such Loan shall be due at the
then applicable Floating Rate for Floating Rate Loans or applicable Fixed Rate
for Fixed Rate Loans, as designated by the Authorized Representative pursuant to
Section 2.01 or Section 2.04 hereof or as otherwise provided herein, such
payments to be made in the same currency as the applicable Loan was made;
PROVIDED, however, that if any amount shall not be paid when due (at maturity,
by acceleration or otherwise), all amounts outstanding hereunder shall bear
interest thereafter (i) in the case of a Fixed Rate Loan, until the end of the
Interest Period with respect to such Fixed Rate Loan, at a rate of two percent
(2%) above such Fixed Rate and (ii) thereafter, and with respect to Floating
Rate Loans, at a rate of interest per annum which shall be two percent (2%)
above the Floating Rate or the maximum rate permitted by applicable law,
whichever is lower, from the date such amount was due and payable until the date
such amount is paid in full.
(b) Interest on each Loan shall be computed on the basis of a year of
360 days and calculated for the actual number of days elapsed; provided that for
Alternative Currency Loans for which a 365-day basis is the only market practice
available to the Administrative Agent for such Loan, interest shall be
calculated on the basis of a year of 365-366 days, as the case may be, for the
actual days elapsed. Interest on each Loan shall be paid (a) quarterly in
arrears on the last Business Day of each quarter, commencing June 30, 1996, on
each Floating Rate Loan, (b) on the
27
last day of the applicable Interest Period for each Fixed Rate Loan and, if the
Interest Period extends for more than three months, at intervals of three months
after the first day of the Interest Period and (c) upon payment in full of the
principal amount of such Loan. Interest on amounts not paid when due shall be
payable on demand.
2.03 PAYMENT OF PRINCIPAL. (a) The principal amount of each Loan (other
than a Competitive Bid Loan) shall be due and payable to the Administrative
Agent for the benefit of each Lender in full on the Revolving Credit Termination
Date. Competitive Bid Loans shall be due and payable on the last day of the
Interest Period for such Loan. The duration of the initial Interest Period for
each Loan that is a Fixed Rate Loan shall be as specified in the initial
Borrowing Notice. The Borrowers shall have the option to elect the duration of
subsequent Interest Periods and to convert the Loans in accordance with Section
2.09 hereof. If the Administrative Agent does not receive a notice of election
of duration of an Interest Period or to convert by the time prescribed by
Section 2.09 hereof, the applicable Borrower shall be deemed to have elected to
convert such Loan to (or continue such Loan as) a Floating Rate Loan until the
Borrower notifies the Administrative Agent in accordance with Section 2.09.
(b) Each payment of principal (including any prepayment) and payment of
interest shall be made to the Administrative Agent at the Principal Office, for
the account of each Lender's applicable Lending Office, to be recorded in
Dollars as set forth in Section 2.01(b) and in the definition of Revolving
Credit Advance Account. The repayment of such principal amount shall be made in
the appropriate Alternative Currency as follows: the portion of the Revolving
Credit Debit Balance attributable to each specified Advance (or the continuation
or conversion thereof) (as determined from the Administrative Agent's records)
shall be repaid in the same Alternative Currency as such Advance. Each payment
under this Agreement shall be made in immediately available funds before 12:30
P.M. Charlotte, North Carolina time on the date such payment is due. The
Administrative Agent may, but shall not be obligated to, debit the amount of any
such payment which is not made by such time to any ordinary deposit account, if
any, of the applicable Borrower with the Administrative Agent. The Borrowers
shall give the Administrative Agent prior telephonic notice of any payment of
principal, such notice to be given by not later than 11:00 A.M. Charlotte, North
Carolina time, on the date of such payment. Payments shall be in minimum amounts
of $500,000 (or the equivalent thereof in any Alternative Currency with respect
to an Alternative Currency Loan) and multiples of $100,000 (or the equivalent
thereof in any Alternative Currency with respect to an Alternative Currency
Loan) in excess thereof.
(c) The Administrative Agent shall deem any payment by or on behalf of
the Borrowers hereunder that is not made both (a) in Dollars in the case of
LIBOR Loans or Floating Rate Loans and the required Alternative Currency in the
case of Loans in Alternative
28
Currencies and in immediately available funds and (b) prior to 12:30 P.M.
Charlotte, North Carolina time to be a non-conforming payment. Any such payment
shall not be deemed to be received by the Administrative Agent until the time
such funds become available funds in the required currency. The Administrative
Agent shall give prompt telephonic notice to the applicable Authorized
Representative and each of the Lenders (confirmed in writing) if any payment is
non-conforming. Interest shall continue to accrue on any principal as to which a
non-conforming payment is made until such funds become available funds (but in
no event less than the period from the date of such payment to the next
succeeding Business Day) at a rate of interest per annum which shall be two
percent (2%) above the Floating Rate or the maximum rate permitted by applicable
law, whichever is lower, from the date such amount was due and payable until the
date such amount is paid in full.
(d) In the event that any payment hereunder or under the Notes becomes
due and payable on a day other than a Business Day, then such due date shall be
extended to the next succeeding Business Day; provided that interest shall
continue to accrue during the period of any such extension.
2.04 COMPETITIVE BID LOANS.
(a) In addition to borrowings of Syndicated Loans, at any time prior to
the Revolving Credit Termination Date the Borrowers may, as set forth in this
Section 2.04, request the Lenders to make offers to make Competitive Bid Loans
to the Borrowers in Dollars. The Lenders may, but shall have no obligation to,
make such offers and the Borrowers may, but shall have no obligation to, accept
any such offers in the manner set forth in this Section 2.04. Competitive Bid
Loans shall be Absolute Rate Loans, PROVIDED that:
(i) the aggregate amount of outstanding Competitive Bid Loans plus
Swing Line Loans plus Revolving Credit Loans plus Outstanding Letters
of Credit shall not exceed the Available Revolving Credit Commitment
and in the case of NHL the NHL Sublimit;
(ii) there may be no more than twelve (12) different Interest
Periods for both Syndicated Loans and Competitive Bid Loans outstanding
at the same time;
(iii) the aggregate amount of outstanding Competitive Bid Loans of a
ender shall not exceed at any time an amount equal to the Available
Revolving Credit Commitment;
(iv) no Competitive Bid Loan shall have a maturity date subsequent
to the Revolving Credit Termination Date.
(b) When a Borrower wishes to request offers to make Competitive Bid
Loans, it shall give the Administrative Agent (which shall promptly notify the
Lenders) notice (a "COMPETITIVE
29
BID QUOTE REQUEST") to be received no later than 10:00 A.M. on the Business Day
next preceding the date of borrowing proposed therein, (or such other time and
date as such Borrower and the Administrative Agent, with the consent of the
Required Lenders, may agree). The Borrowers may request offers to make
Competitive Bid Loans for up to three (3) different Interest Periods in a single
notice; PROVIDED that the request for each separate Interest Period shall be
deemed to be a separate Competitive Bid Quote Request for a separate borrowing
(a "COMPETITIVE BID BORROWING") and there shall not be outstanding at any one
time more than four (4) Competitive Bid Borrowings. Each such Competitive Bid
Quote Request shall be substantially in the form of EXHIBIT J hereto and shall
specify as to each Competitive Bid Borrowing:
(i) the proposed date of such borrowing, which shall be a Business
Day;
(ii) the aggregate amount of such Competitive Bid Borrowing, which
shall be at least $5,000,000 (or a larger multiple of $1,000,000) but
shall not cause the limits specified in Section 2.04(a) hereof to be
violated;
(iii) the duration of the Interest Period applicable thereto; and
(iv) the date on which the Competitive Bid Quotes are to be
submitted if it is before the proposed date of borrowing (the date on
which such Competitive Bid Quotes are to be submitted is called the
"QUOTATION DATE").
Except as otherwise provided in this Section 2.04(b), no Competitive Bid Quote
Request shall be given within five (5) Business Days (or such other number of
days as the applicable Borrower and the Administrative Agent, with the consent
of the Required Lenders, may agree) of any other Competitive Bid Quote Request.
(c) (i) Each Lender may submit one or more Competitive Bid Quotes,
each containing an offer to make a Competitive Bid Loan in response to
any Competitive Bid Quote Request; PROVIDED that, if a Borrower's
request under Section 2.04(b) hereof specified more than one Interest
Period, such Lender may make a single submission containing one or more
Competitive Bid Quotes for each such Interest Period. Each Competitive
Bid Quote must be submitted to the Administrative Agent not later than
10:00 A.M. Charlotte, North Carolina time on the Quotation Date (or
such other time and date as the applicable Borrower and the
Administrative Agent, with the consent of the Required Lenders, may
agree); PROVIDED, that any Competitive Bid Quote may be submitted by
the Administrative Agent (or its Applicable Lending Office) only if the
Administrative Agent (or such Applicable Lending Office) notifies the
Borrower of the terms of the offer
30
contained therein not later than 9:45 A.M. Charlotte, North Carolina
time on the Quotation Date. Subject to ARTICLE IV, ARTICLE VII and X
hereof, any Competitive Bid Quote so made shall be irrevocable except
with the consent of the Administrative Agent given on the instructions
of the applicable Borrower.
(ii) Each Competitive Bid Quote shall be substantially in the form
of EXHIBIT K hereto and shall specify:
(A) the proposed date of borrowing and the Interest Period
therefor;
(B) the principal amount of the Competitive Bid Loan for
which each such order is being made, which principal amount shall
be at least $5,000,000 (or a larger multiple of $1,000,000);
PROVIDED that the aggregate principal amount of all Competitive Bid
Loans for which a Lender submits Competitive Bid Quotes (x) may not
exceed the Available Revolving Credit Commitment and (y) may not
exceed the principal amount of the Competitive Bid Borrowing for a
particular Interest Period for which offers were requested;
(C) the rate of interest per annum (rounded upwards, if
necessary, to the nearest 1/10,000th of 1%) offered for each such
Competitive Bid Loan (the "ABSOLUTE RATE"); and
(D) the identity of the quoting Lender.
Unless otherwise agreed by the Administrative Agent and the applicable Borrower,
no Competitive Bid Quote shall contain qualifying, conditional or similar
language or propose terms other than or in addition to those set forth in the
applicable Competitive Bid Quote Request and, in particular, no Competitive Bid
Quote may be conditioned upon acceptance by the applicable Borrower of all (or
some specified minimum) of the principal amount of the Competitive Bid Loan for
which such Competitive Bid Quote is being made.
(d) The Administrative Agent shall, as promptly as practicable after
the Competitive Bid Quote is submitted (but in any event not later than 10:30
A.M. Charlotte, North Carolina time on the Quotation Date), notify the
applicable Borrower of the terms (i) of any Competitive Bid Quote submitted by a
Lender that is in accordance with Section 2.04(c) hereof and (ii) of any
Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a
previous Competitive Bid Quote submitted by such Lender with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall
be disregarded by the Administrative Agent unless such subsequent Competitive
Bid Quote is submitted solely to correct a manifest error in such former
31
Competitive Bid Quote. The Administrative Agent's notice to the applicable
Borrower shall specify (A) the aggregate principal amount of the Competitive Bid
Borrowing for which orders have been received and (B) the respective principal
amounts and Absolute Rates so offered by each Lender (identifying the Lender
that made each Competitive Bid Quote).
(e) Not later than 11:00 A.M. Charlotte, North Carolina time on the
Quotation Date (or such other time and date as the applicable Borrower and the
Administrative Agent, with the consent of the Required Lenders, may agree), the
applicable Borrower shall notify the Administrative Agent of its acceptance or
nonacceptance of the offers so notified to it pursuant to Section 2.04(d) hereof
(and the failure of the applicable Borrower to give such notice by such time
shall constitute nonacceptance) and the Administrative Agent shall promptly
notify each affected Lender. In the case of acceptance, such notice shall
specify the aggregate principal amount of offers for each Interest Period that
are accepted. The applicable Borrower may accept any Competitive Bid Quote in
whole or in part (PROVIDED that any Competitive Bid Quote accepted in part shall
be at least $5,000,000 or a larger multiple of $1,000,000); PROVIDED that:
(i) the aggregate principal amount of each Competitive Bid
Borrowing may not exceed the applicable amount set forth in the related
Competitive Bid Quote Request;
(ii) the aggregate principal amount of each Competitive Bid
Borrowing shall be at least $5,000,000 (or a larger multiple of
$1,000,000) but shall not cause the limits specified in Section 2.04(a)
hereof to be violated;
(iii) acceptance of offers may be made only in ascending order of
Absolute Rates, beginning with the lowest rate so offered; and
(iv) the Borrowers may not accept any offer where the Administrative
Agent has correctly advised the Borrowers that such offer fails to
comply with Section 2.04(c)(ii) hereof or otherwise fails to comply
with the requirements of this Agreement (including, without limitation,
Section 2.04(a) hereof).
If offers are made by two or more Lenders with the same Absolute Rates, for a
greater aggregate principal amount than the amount in respect of which offers
are accepted for the related Interest Period after the acceptance of all offers,
if any, of all lower Absolute Rates offered by any Lender for such related
Interest Period, the principal amount of Competitive Bid Loans in respect of
which such offers are accepted shall be allocated by the applicable Borrower
among such Lenders as nearly as possible (in amounts of at least $5,000,000 or
larger multiples of $1,000,000) in proportion to the aggregate principal amount
of such offers. Determinations
32
by the applicable Borrower of the amounts of Competitive Bid Loans and the
lowest bid after adjustment as provided in Section 2.04(e)(iii) shall be
conclusive in the absence of manifest error.
(f) Any Lender whose offer to make any Competitive Bid Loan has been
accepted shall, not later than 1:00 P.M. Charlotte, North Carolina time on the
date specified for the making of such Loan, make the amount of such Loan
available to the Administrative Agent at the Principal Office in Dollars and in
immediately available funds, for account of the applicable Borrower. The amount
so received by the Administrative Agent shall, subject to the terms and
conditions of this Agreement, be made available to the applicable Borrower on
such date by depositing the same, in Dollars and in immediately available funds,
in an account of the Borrowers maintained at the Principal Office or otherwise
as shall be directed by the applicable Borrower.
2.05 NOTES.
(a) Syndicated Loans made by each Lender shall be evidenced by a
Revolving Note of each Borrower payable to the order of such Lender in the
respective amount of its Applicable Commitment Percentage of the Total Revolving
Credit Commitment, in the case of IVAX, and the NHL Sublimit, in the case of
NHL, which Revolving Note shall be dated the Closing Date and shall be duly
completed, executed and delivered by the respective Borrower.
(b) Swing Line Loans made by NationsBank shall be evidenced by the
Swing Line Note payable to the order of NationsBank, which Swing Line Note shall
be dated the Closing Date and shall be duly completed, executed and delivered by
IVAX.
(c) Competitive Bid Loans made by each Lender shall be evidenced by
the Competitive Bid Note payable to the order of such Lender in the amount of
the Total Revolving Credit Commitment, which Competitive Bid Note shall be dated
the Closing Date and shall be duly completed, executed and delivered by the
respective Borrower.
2.06 PRO RATA PAYMENTS. Except as otherwise provided herein, (a) each
payment on account of the principal of and interest on the Syndicated Loans and
the fees described in Section 2.10 hereof shall be made to the Administrative
Agent for the account of the Lenders pro rata based on their Applicable
Commitment Percentages, (b) all payments to be made by the Borrowers for the
account of each of the Lenders on account of principal, interest and fees, shall
be made without set-off or counterclaim, and (c) the Administrative Agent will
promptly distribute payments received to the Lenders. Notwithstanding the
foregoing, in the event any Lender shall not be able to make a Fixed Rate Loan
as provided in Section 4.05, interest shall be allocated to each Lender
according to the interest rate payable to such Lender.
33
2.07 REDUCTIONS. The Borrowers shall, by notice from an Authorized
Representative, have the right from time to time (but not more frequently than
once during each fiscal quarter), upon not less than five (5) Business Days
written notice to the Administrative Agent to reduce the Total Revolving Credit
Commitment. The Administrative Agent shall give each Lender, within one (1)
Business Day, telephonic notice (confirmed in writing) of such reduction. Each
such reduction shall be in the aggregate amount of $1,000,000 or such greater
amount which is in an integral multiple of $1,000,000, and shall permanently
reduce the Total Revolving Credit Commitment of the Lenders pro rata. No such
reduction shall result in the payment of any Fixed Rate Loan other than on the
last day of the Interest Period of such Loan unless such prepayment is
accompanied by amounts due, if any, under Section 4.04. Each reduction of the
Total Revolving Credit Commitment shall be accompanied by payment of the Notes
to the extent that the sum of the outstanding Loans and the Outstanding Letters
of Credit exceeds the Available Revolving Credit Commitment, after giving effect
to such reduction, together with accrued and unpaid interest on the amounts
prepaid.
2.08 DECREASE IN AMOUNTS. The amount of the Available Revolving Credit
Commitment which shall be available to the Borrowers shall be reduced by the
aggregate amount of all Outstanding Letters of Credit, outstanding amounts of
Swing Line Loans and Competitive Bid Loans and the Revolving Credit Debit
Balance immediately preceding the making of any Advance.
2.09 CONVERSIONS AND ELECTIONS OF SUBSEQUENT INTEREST PERIODS. Provided
that no Default or Event of Default shall have occurred and be continuing and
subject to the limitations set forth below and in Sections 4.01(b), 4.02 and
4.03 hereof, the Borrowers may:
(a) upon notice to the Administrative Agent on or before 11:00 A.M.
Charlotte, North Carolina time on any Business Day convert all or a part of
Fixed Rate Loans (other than a Competitive Bid Loan) to Floating Rate Loans on
the last day of the Interest Period for such Fixed Rate Loans;
(b) on three (3) LIBOR Business Days' notice in the case of a Dollar
Loan and four (4) LIBOR Business Days' notice in the case of an Alternative
Currency Loan to the Administrative Agent on or before 11:00 A.M. Charlotte,
North Carolina time:
(i) elect a subsequent Interest Period for all or a portion of
Fixed Rate Loans (other than Competitive Bid Loans) of Dollars or any
Alternative Currency to begin in the same currency on the last day of
the current Interest Period for such Fixed Rate Loans;
(ii) elect that any Fixed Rate Loan (other than Competitive Bid
Loans) be converted from Dollars or an
34
Alternative Currency into another Dollar denominated Loan or
Alternative Currency Loan of the same Alternative Currency,
respectively, on the last day of the Interest Period for such Fixed
Rate Loan;
(iii) convert Floating Rate Loans to Fixed Rate Loans (other than
Competitive Bid Loans) on any Business Day, or LIBOR Business Day,
as applicable.
Notice of any such elections or conversions shall specify the effective
date of such election or conversion and the Interest Period to be applicable to
the Loan as continued or converted. Each election and conversion pursuant to
this Section 2.09 shall be subject to the limitations on Fixed Rate Loans set
forth in the definition of "Interest Period" herein and in Section 2.01 and
Article IV hereof. All such continuations or conversions of Loans shall be
effected pro rata based on the Applicable Commitment Percentages of the Lenders.
2.10 UNUSED FEE. For the period beginning on the Closing Date and
ending on the Revolving Credit Termination Date (or such earlier date on which
the Revolving Credit Facility has terminated), IVAX agrees to pay to the
Administrative Agent, for the pro rata benefit of the Lenders based on their
Applicable Commitment Percentages, an unused fee equal to the Applicable Margin
times the sum of the daily amount by which the Total Revolving Credit Commitment
exceeds the sum of average daily (i) Revolving Credit Debit Balance and (ii)
Outstanding Letters of Credit. Swing Line Loans and Competitive Bid Loans shall
not be outstanding Loans for purposes of determining such fee. Such payments of
fees provided for in this Section shall be due in arrears on the last Business
Day of each December, March, June and September beginning June 30, 1996 to and
on the Revolving Credit Termination Date. Notwithstanding the foregoing, so long
as any Lender fails to make available any portion of its Revolving Credit
Commitment when requested, such Lender shall not be entitled to receive payment
of its pro rata share of such fee until such Lender shall make available such
portion. Such fee shall be calculated on the basis of a year of 360 days for the
actual number of days elapsed.
2.11 DEFICIENCY ADVANCES. No Lender shall be responsible for any
default of any other Lender in respect to such other Lender's obligation to make
any Loan hereunder nor shall the Revolving Credit Commitment of any Lender
hereunder be increased as a result of such default of any other Lender. Without
limiting the generality of the foregoing, in the event any Lender shall fail to
advance funds to a Borrower as herein provided, the Administrative Agent may in
its discretion, but shall not be obligated to, advance under the applicable Note
in its favor as a Lender all or any portion of such amount or amounts (each, a
"deficiency advance") and shall thereafter be entitled to payments of principal
of and interest on such deficiency advance in the same manner and at the
35
same interest rate or rates to which such other Lender would have been entitled
had it made such advance under its applicable Note; provided that, upon payment
to the Administrative Agent from such other Lender of the entire outstanding
amount of each such deficiency advance, together with accrued and unpaid
interest thereon, from the most recent date or dates interest was paid to the
Administrative Agent by the applicable Borrower on each Loan comprising the
deficiency advance at the interest rate per annum for overnight borrowing by the
Administrative Agent from the Federal Reserve Bank, then such payment shall be
credited against the applicable Note of the Administrative Agent in full payment
of such deficiency advance and the applicable Borrower shall be deemed to have
borrowed the amount of such deficiency advance from such other Lender as of the
most recent date or dates, as the case may be, upon which any payments of
interest were made by such Borrower thereon.
2.12 ADJUSTMENTS BY ADMINISTRATIVE AGENT. Notwithstanding the
construction of "pro rata" to mean based on the Applicable Percentage
Commitments and any provisions contained herein for the advancement of funds or
distribution of payments on a pro rata basis, the Administrative Agent may, in
its discretion, but shall not be obligated to, adjust downward or upward (but
not in excess of any applicable Revolving Credit Commitment) the principal
amount of any Loan to be made by any Lender to the nearest amount which is
evenly divisible by $100, and make appropriate related adjustment in the
distribution of payments of principal and interest on the Loans.
2.13 USE OF PROCEEDS. The proceeds of the Loans made pursuant to the
Revolving Credit Facility hereunder shall be used by the Borrowers to repay
existing Indebtedness to any or all of the Lenders and Indebtedness assumed in
connection with any Permitted Acquisition, to redeem the outstanding Senior
Notes, to finance Capital Expenditures and Permitted Acquisitions and for other
working capital and general corporate needs of the Borrowers and their
Subsidiaries, to the extent permitted under this Agreement.
2.14 EXTENSION OF REVOLVING CREDIT TERMINATION DATE. At the request
of the Borrowers the Lenders may, in their sole discretion, elect to extend the
Revolving Credit Termination Date then in effect for up to two additional
periods of one year each. The Borrowers shall notify the Lenders of their
request for such an extension by delivering to the Administrative Agent notice
of such request signed by an Authorized Representative not more than one hundred
and twenty (120) days nor less than sixty (60) days prior to either or both of
the third or fourth anniversary of the Closing Date. If all Lenders shall elect
to so extend, the Administrative Agent shall notify the Borrowers in writing
within sixty (60) days of its receipt of such request for extension of the
decision of the Lenders of whether to extend the Revolving Credit Termination
Date. Failure by the Administrative Agent to give such notice shall
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constitute refusal by the Lenders to extend the Revolving Credit Termination
Date.
2.15 SWING LINE. Notwithstanding any other provision of any other
Section of this Agreement to the contrary, in order to administer the Revolving
Credit Facility in an efficient manner and to minimize the transfer of funds
between the Administrative Agent and the Lenders, NationsBank shall make
available Swing Line Loans to IVAX in Dollars prior to the Revolving Credit
Termination Date. NationsBank shall not make any Swing Line Loan pursuant hereto
(i) if the Borrowers are not in compliance with all the conditions to the making
of Loans set forth in this Agreement, (ii) if after giving effect to such Swing
Line Loan, the Swing Line Loans outstanding exceed $20,000,000, or (iii) if
after giving effect to such Swing Line Loan, the sum of the outstanding Loans
and the Outstanding Letters of Credit exceeds the Available Revolving Credit
Commitment. Loans made pursuant to this Section 2.15 shall be limited to Loans
bearing interest at the Federal Funds Effective Rate PLUS the Applicable Margin.
(i) IVAX may borrow, repay and reborrow under this Section 2.15.
Borrowings under the Swing Line may be made in amounts of $500,000 and
multiples of $100,000 in excess thereof, with a minimum outstanding
amount at all times of $500,000, upon telephonic (confirmed in writing)
or telefacsimile request by an authorized officer of IVAX made to
NationsBank not later than 12:00 noon Charlotte, North Carolina time on
the Business Day of the requested borrowing. Each repayment of a Swing
Line Loan shall be in integral multiples of $100,000 with a minimum
amount of $100,000.
(ii) If IVAX instructs NationsBank to debit its demand deposit
account in an amount of any payment with respect to a Swing Line Loan,
or NationsBank otherwise receives repayment after 2:00 P.M. Charlotte,
North Carolina time, on a Business Day, such payment shall be deemed
received on the next Business Day. The Borrower shall pay interest on
Swing Line Loans on the last Business Day of each quarter, commencing
June 30, 1996 and continuing on each September, December, March and
June thereafter. Interest shall be calculated on the basis of a year of
360 days and calculated for the actual number of days elapsed.
(iii) The Borrowers and each Lender which is or may become a party
hereto acknowledge that all Swing Line Loans are to be made solely by
NationsBank to IVAX but that such Lender shall share the risk of loss
with respect to such Advances in an amount equal to such Lender's
Applicable Commitment Percentage of such Swing Line Loan. Upon demand
according to its Applicable Commitment Percentage of such Swing Line
Loan, each Lender shall promptly provide to NationsBank its purchase
price therefor in an amount equal to its Participation therein, in
which case such Swing Line Loan shall be deemed
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from and after such date (to the extent IVAX has not converted such
loan pursuant to Section 2.09) a Syndicated Loan made in accordance
with the Agreement. The obligation of each Lender to so provide its
purchase price to NationsBank shall be absolute and unconditional and
shall not be affected by the occurrence of an Event of Default or any
other occurrence or event.
(iv) IVAX at its option may request an Advance as a Loan pursuant
to Section 2.01 in an amount sufficient to repay any or all Swing Line
Loans on any date and the Administrative Agent shall upon the receipt
of such Advance, provide to NationsBank the amount necessary to repay
such Swing Line Loan or Loans (which NationsBank shall then apply to
such repayment) and credit any balance of the Loan in immediately
available funds to an account of IVAX at the Principal Office or as
otherwise directed by IVAX. The proceeds of such Advances shall be paid
to NationsBank for application to the outstanding Swing Line Loans and
the Lenders shall then be deemed to have made Loans in the amount of
such Advances. The obligation of NationsBank to fund the Swing Line
shall cease upon the earlier of (i) the occurrence of a Default, or
(ii) the Revolving Credit Termination Date; provided that when a
Default is no longer continuing NationsBank shall be obligated to
provide Swing Line Loans unless payment of the Obligations has been
accelerated.
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ARTICLE III
LETTERS OF CREDIT
3.01 LETTERS OF CREDIT. (a) The Issuer agrees, subject to the terms and
conditions of this Agreement, upon request of either Borrower to issue from time
to time for the account of such Borrower Letters of Credit upon delivery to the
Issuer of an Application and Agreement for Letter of Credit in form and content
acceptable to such Lender; PROVIDED, that the Outstanding Letters of Credit
shall not exceed the Total Letter of Credit Commitment. No Letter of Credit
shall be issued by the Issuer with an expiry date or payment date (i) of more
than three years or (ii) occurring subsequent to the fifth Business Day
preceding the Revolving Credit Termination Date. The Issuer shall not be
permitted to issue any Letter of Credit if the Outstanding Letters of Credit
when added to the face amount of any requested Letter of Credit and the
outstanding amounts of Loans exceeds the Available Revolving Credit Commitment.
Further, the Issuer shall not issue any Letter of Credit for the benefit of NHL
if NHL's outstanding Loans, when added to the Outstanding Letters of Credit for
the account of NHL and the face amount of any Letter of Credit requested by NHL
exceeds the NHL Sublimit. The Issuer shall furnish the Administrative Agent at
the time of issuance of such Letter of Credit a telefacsimile copy of such
Letter of Credit. In addition, the Issuer shall give the Administrative Agent
telephonic notice of the amount of a Letter of Credit prior to issuing a Letter
of Credit.
(b) Subject to the approval by the Lenders of the making available of
an Alternative Currency not otherwise provided for herein, upon completion of a
proper Application and Agreement for Letter of Credit, the Issuer may issue upon
request and for the account of either Borrower Letters of Credit payable in such
Alternative Currency. For purposes of determining Outstanding Letters of Credit,
any Letter of Credit issued in an Alternative Currency shall be recorded in the
Administrative Agent's account in Dollars based on the Alternative Currency
Equivalent Amount on the date of issuance of such Letter of Credit. Any draw on
a Letter of Credit issued in an Alternative Currency shall be repaid in the same
Alternative Currency and in the Alternative Currency Equivalent Amount
(determined based on the Spot Rate of Exchange on the date of drawing under the
Letter of Credit). To the extent that the Administrative Agent shall determine
at any time that the sum of (i) the Dollar Value of outstanding Loans and
Outstanding Letters of Credit made or issued in Alternative Currencies and (ii)
outstanding Loans and Outstanding Letters of Credit made or issued in Dollars
exceeds the Available Revolving Credit Commitment, the Borrowers shall
immediately repay Loans so that after giving effect to such payment the
outstanding Loans plus Outstanding Letters of Credit do not exceed the Available
Revolving Credit Commitment. The Administrative Agent shall determine the
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Dollar Value of Outstanding Letters of Credit made or issued in Alternative
Currencies monthly.
3.02 REIMBURSEMENT.
(a) The Borrowers hereby unconditionally agree immediately to
pay to the Issuer on demand at the Lending Office of the Issuer all amounts
required to pay all drafts drawn under the Letters of Credit issued by the
Issuer to such Borrower and all reasonable expenses incurred by the
Administrative Agent and/or such Issuers in connection with the Letters of
Credit and in any event to place in possession of the Issuer (which shall
include Advances under the Revolving Credit Facility if permitted by Section
2.01(b) hereof) sufficient funds to pay all debts and liabilities arising under
any Letters of Credit issued by such Issuer. The Issuer shall give the Borrowers
prompt notice of its charging of any account of either Borrower for amounts due
to such Issuer hereunder. The Borrowers' obligations to pay the Issuer under
this Section 3.02, and each Issuer's right to receive the same, shall be
absolute and unconditional and shall not be affected by any circumstance
whatsoever. The Issuer agrees to give the Borrowers prompt notice of any request
for a draw under a Letter of Credit. The Issuer may charge any account the
Borrowers may have with it for any and all amounts the Issuer pays under a
Letter of Credit, plus charges and reasonable expenses as from time to time
agreed to by the Issuer and the Borrower; provided that to the extent permitted
by Section 2.01(b)(vii), amounts shall be paid pursuant to Advances under the
Revolving Credit Facility prior to charging any account of the Borrowers for
amounts paid under Letters of Credit. The Borrowers agree that the Issuer may,
in its sole discretion, accept or pay, as complying with the terms of any Letter
of Credit, any drafts or other documents otherwise in order on their face which
may be signed or issued purportedly by an administrator, executor, trustee in
bankruptcy, debtor in possession, assignee for the benefit of creditors,
liquidator, receiver, attorney in fact or other legal representative of a party
who is authorized under such Letter of Credit to draw or issue any drafts or
other documents. The Borrowers agree to pay the Issuer interest on any amounts
not paid when due hereunder at the Floating Rate plus two percent (2%), or the
maximum rate permitted by applicable law, if lower.
(b) In accordance with the provisions of Section 2.01(b)(vii)
hereof, the Issuer shall notify the Administrative Agent (and shall also notify
the Borrowers) of any drawing under any Letter of Credit as promptly as
practicable following the receipt by the Issuer of such drawing.
(c) Each Lender (other than the Issuer) shall automatically
acquire on the date of issuance thereof, a Participation in the liability of the
Issuer in respect of each Letter of Credit issued by it in an amount equal to
such Lender's Applicable Commitment Percentage of such liability, and to the
40
extent that Borrower is obligated to pay the Issuer under Section 3.02(a), each
Lender (other than the Issuer) thereby shall absolutely, unconditionally and
irrevocably assume, and shall be unconditionally obligated to pay to the Issuer
as hereinafter described, its Applicable Commitment Percentage of the liability
of the Issuer under such Letter of Credit. Prior to the Revolving Credit
Termination Date, each Lender (including the Issuer in its capacity as a Lender)
shall, subject to the terms and conditions of Article II, make a Floating Rate
Loan to the Borrowers by paying to the Administrative Agent for the account of
the Issuer at the Principal Office in Dollars and in immediately available
funds, an amount equal to its Applicable Commitment Percentage of any drawing
under a Letter of Credit, all as described and pursuant to Section 2.01(b)(vii).
With respect to drawings under any of the Letters of Credit, each Lender, upon
receipt from the Administrative Agent of notice of a drawing in the manner
described in Section 2.01(b)(vii), shall promptly pay to the Administrative
Agent for the account of the Issuer, prior to the applicable time set forth in
Section 2.01(b)(vii), its Applicable Commitment Percentage of such drawing.
Simultaneously with the making of each such payment by a Lender to the
Administrative Agent for the account of such Issuer, such Lender shall,
automatically and without any further action on the part of such Issuer or such
Lender, acquire a Participation in an amount equal to such payment (excluding
the portion thereof constituting interest) in the related Reimbursement
Obligation of the applicable Borrower. The Reimbursement Obligations of the
Borrowers shall be immediately due and payable whether by Advances made in
accordance with Section 2.01(b)(vii) or otherwise. Each Lender's obligation to
make payment to the Administrative Agent for the account of an Issuer pursuant
to this Section 3.02(c), and the right of the Issuer to receive the same, shall
be absolute and unconditional, shall not be affected by any circumstance
whatsoever and shall be made without any offset, abatement, withholding or
reduction whatsoever. If any Lender is obligated to pay but does not pay amounts
to the Administrative Agent for the account of an Issuer in full upon such
request as required by this Section 3.02(c), such Lender shall, on demand, pay
to the Administrative Agent for the account of the Issuer interest on the unpaid
amount for each day during the period commencing on the date of notice given to
such Lender pursuant to Section 2.01(b)(vii) until such Lender pays such amount
to the Administrative Agent for the account of the Issuer in full at the
interest rate per annum for overnight borrowing by the Issuer from the Federal
Reserve Bank. In the event any Lender shall fail to make a Floating Rate Loan as
provided herein (a "Defaulting Lender"), the Borrowers may cause such Defaulting
Lender to be replaced by a financial institution reasonably acceptable to the
Administrative Agent. Any such Defaulting Lender agrees to execute and deliver
to the Administrative Agent an Assignment and Acceptance as provided in Section
12.01 hereof upon payment of all amounts owed hereunder to such Defaulting
Lender.
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(d) Promptly following the end of each calendar quarter, the
Issuer shall deliver to the Administrative Agent, and the Administrative Agent
shall deliver to each Lender, a notice describing the aggregate undrawn amount
of all Letters of Credit at the end of such quarter. Upon the request of any
Lender from time to time, the Issuer shall deliver to the Administrative Agent,
and the Administrative Agent shall deliver to such Lender, any other information
reasonably requested by such Lender with respect to each Outstanding Letter of
Credit.
(e) The issuance by the Issuer of each Letter of Credit shall,
in addition to the conditions precedent set forth in Section 6.01 hereof, be
subject to the conditions that such Letter of Credit be in such form and contain
such terms as shall be reasonably satisfactory to the Issuer thereof consistent
with the then current practices and procedures of such Issuer with respect to
similar letters of credit, and the applicable Borrower shall have executed and
delivered such other instruments and agreements relating to such Letters of
Credit as the Issuer shall have reasonably requested consistent with such
practices and procedures. All Letters of Credit shall be issued pursuant to and
subject to the Uniform Customs and Practice for Documentary Credits, 1993
revision, International Chamber of Commerce Publication No. 500 and all
subsequent amendments and revisions thereto. Any Borrower requesting the
issuance of a Letter of Credit shall furnish the Issuer an Application and
Agreements for Letter of Credit not later than 10:00 A.M. Charlotte, North
Carolina time on the date of the proposed issuance of such Letter of Credit. If
such application is received after 10:00 A.M. Charlotte, North Carolina time,
the Letter of Credit shall be issued on the next following Business Day.
(f) Without duplication of Section 12.07 hereof, the Borrowers
hereby agree to indemnify and hold harmless the Issuer, each other Lender and
the Administrative Agent from and against any and all claims and damages,
losses, liabilities, reasonable costs and expenses which such Issuer, such other
Lender or the Administrative Agent may incur (or which may be claimed against
the Issuer, such other Lender or the Administrative Agent) by any Person by
reason of or in connection with the issuance or transfer of or payment or
failure to pay under any Letter of Credit; provided that the Borrowers shall not
be required to indemnify an Issuer, any other Lender or the Administrative Agent
for any claims, damages, losses, liabilities, costs or expenses to the extent,
but only to the extent, (i) caused by the willful misconduct or gross negligence
of the party to be indemnified or (ii) caused by the failure of the Issuer to
pay under any Letter of Credit after the presentation to it of a request
strictly complying with the terms and conditions of such Letter of Credit,
unless such payment or reimbursement is prohibited by any governmental
authority, law, regulation, court order or decree.
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(g) Without limiting Borrowers' rights as set forth in Section
3.02(f) above, the obligation of the Borrowers to immediately reimburse an
Issuer or the Administrative Agent for drawings made under Letters of Credit
shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement and such Letters of
Credit and the related applications for any Letter of Credit, under all
circumstances whatsoever, including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of the Letter of
Credit, the obligation supported by the Letter of Credit or any other agreement
or instrument relating thereto (collectively, the "Related Documents");
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Related Documents;
(iii) the existence of any claim, setoff, defense (other than
the defense of payment in accordance with the terms of this Agreement) or other
rights which a Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any persons or entities for whom any such
beneficiary or any such transferee may be acting), Administrative Agent, Lenders
or any other person or entity, whether in connection with the Loan Documents,
the Related Documents or any unrelated transaction;
(iv) any breach of contract or other dispute between a
Borrower and any beneficiary or any transferee of a Letter of Credit (or any
persons or entities for whom such beneficiary or any such transferee may be
acting), Administrative Agent, Lenders or any other Person;
(v) any draft, statement or any other document presented
under the Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect whatsoever;
(vi) any delay, extension of time, renewal, compromise or
other indulgence or modification granted or agreed to by the Administrative
Agent, with or without notice to or approval by the Borrowers in respect of any
of Borrowers' Obligations under this Agreement; or
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing;
provided, however, that nothing contained herein shall be deemed to release an
Issuer or any other Lender of any liability for actual loss arising as a result
of its gross negligence or willful misconduct or out of the wrongful dishonor by
the Issuer of a proper demand for payment made under and strictly complying with
the terms of any Letter of Credit.
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3.03 LETTER OF CREDIT FRONTING FEE. The Borrowers agree to pay to the
Issuer a fee on the aggregate amount available to be drawn on each Outstanding
Letter of Credit at a rate equal to 10 basis points per annum times the
aggregate amount available to be drawn on each Outstanding Letter of Credit. In
addition the Borrowers shall pay to the Administrative Agent for the benefit of
the Lenders on the last Business Day of each quarter a letter of credit fee
based on their Applicable Commitment Percentages equal to the Applicable Margin
times the average daily aggregate Outstanding Letters of Credit during such
quarter. Such payment of fees provided for in this Section 3.03 shall be due
with respect to each outstanding Letter of Credit quarterly in arrears on the
last Business Day of each December, March, June and September and on the
Revolving Credit Termination Date. Such fee shall be calculated on the basis of
a year of 360 days for the actual number of days elapsed.
3.04 ADMINISTRATIVE FEES AND RESERVES. The Borrowers shall pay to the
Issuer such administrative fee in connection with the Letters of Credit in such
amounts and at such times as such Issuer and the Borrowers shall agree from time
to time and shall pay to the Issuer the customary issuance, amendment and
renewal fees.
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ARTICLE IV
YIELD PROTECTION AND ILLEGALITY
4.01 ADDITIONAL COSTS. (a) The Borrowers shall promptly pay to the
Administrative Agent for the account of a Lender from time to time, without
duplication, such amounts as such Lender may determine to be necessary to
compensate it for any costs incurred by such Lender which it determines are
attributable to its making or maintaining any Loan, whether in Dollars or other
Alternate Currency, or its obligation to make any Loans, or the issuance or
maintenance by an Issuer of or such Lender's Participation in any Letter of
Credit issued hereunder, or any reduction in any amount receivable by such
Lender under this Agreement, the Notes or the Letters of Credit in respect of
any of such Loans or such obligation or the Letters of Credit, including
reductions in the rate of return on a Lender's capital (such increases in costs
and reductions in amounts receivable and returns being herein called "Additional
Costs"), resulting from any Regulatory Change which: (i) changes the basis of
taxation of any amounts payable to such Lender under this Agreement or the Notes
in respect of any of such Loans or Letters of Credit (other than taxes imposed
on or measured by the income, revenues or assets); or (ii) imposes or modifies
any reserve, special deposit, or similar requirements relating to any extensions
of credit or other assets of, or any deposits with or other liabilities of, such
Lender (other than any such reserve, deposit or requirement reflected in the
Prime Rate, the Federal Funds Effective Rate, the Applicable Rate, the Absolute
Rate or the LIBOR Rate, in each case computed in accordance with the respective
definitions of such terms set forth in Section 1.01 hereof); or (iii) has or
would have the effect of reducing the rate of return on capital of any such
Lender and the parent corporation of such Lender to a level below that which the
Lender could have achieved but for such Regulatory Change (taking into
consideration such Lender's policies with respect to capital adequacy); or (iv)
imposes any other condition adversely affecting the Administrative Agent or the
Lenders under this Agreement, the Notes or the issuance or maintenance of, or
any Lender's Participation in, the Letters of Credit (or any of such extensions
of credit or liabilities). Each Lender will notify the Borrowers and the
Administrative Agent of any event occurring after the Closing Date which would
entitle it to compensation pursuant to this Section 4.01(a) as promptly as
practicable after it obtains knowledge thereof and determines to request such
compensation.
(b) Without limiting the effect of the foregoing provisions of
this Section 4.01, in the event that, by reason of any Regulatory Change, any
Lender either (i) incurs Additional Costs based on or measured by the excess
above a specified level of the amount of a category of deposits or other
liabilities of the Lender which includes deposits by reference to which the
interest rate on Fixed Rate Loans is determined as provided in this Agreement or
a category of extensions of credit or other assets of any Lender
45
which includes Fixed Rate Loans or (ii) becomes subject to restrictions on the
amount of such a category of liabilities or assets which it may hold, then, if
the Lender so elects by notice to the other Lenders and the Borrowers, the
obligation hereunder of such Lender to make, and to convert Floating Rate Loans
into, Fixed Rate Loans that are the subject of such restrictions shall be
suspended until the date such Regulatory Change ceases to be in effect and the
Borrowers shall, on the last day(s) of the then current Interest Period(s) for
outstanding Fixed Rate Loans convert such Fixed Rate Loans into Floating Rate
Loans; PROVIDED, HOWEVER, that the suspension of such obligation and the
conversion of any Fixed Rate Loans into Floating Rate Loans shall apply only to
any Lender who is affected by such restrictions and who has provided such notice
to the other Lenders, and the obligation of the other Lenders to make, and to
convert Floating Rate Loans into, Fixed Rate Loans shall not be affected by such
restrictions. In the event that the obligation of some, but not all of the
Lenders to make, or to convert Floating Rate Loans into, Fixed Rate Loans is
suspended, then any request by the Borrower during the pendency of such
suspension for a Fixed Rate Loan shall be deemed a request for such Fixed Rate
Loan from the Lender(s) not subject to such suspension and for a Floating Rate
Loan from the Lender(s) who are subject to such suspension, in each case in the
respective amounts based on the Lenders' respective Revolving Credit
Commitments.
(c) Determinations by any Lender for purposes of this Section 4.01 of
the effect of any Regulatory Change on its costs of making or maintaining, or
being committed to make, Loans or by any Lender as issuer of any Letter of
Credit of the effect of any Regulatory Change on its costs in connection with
the issuance or maintenance of, or any other Lender's Participation in, any
Letter of Credit issued hereunder, or on amounts receivable by any Lender in
respect of Loans or Letters of Credit, and of the additional amounts required to
compensate the Lender in respect of any Additional Costs, shall be conclusive
absent manifest error, provided that such determinations are made on a
reasonable basis taking into account such Lender's reasonable policies as to the
allocation of capital, costs and other items. The Lender requesting such
compensation shall furnish to the Authorized Representatives and the
Administrative Agent within one hundred and eighty (180) days of the incurrence
of any Additional Costs for which compensation is sought an explanation of the
Regulatory Change and calculations, in reasonable detail, setting forth such
Lender's determination of any such Additional Costs.
4.02 SUSPENSION OF LOANS. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any interest rate for
any Fixed Rate Loan for any Interest Period, the Administrative Agent determines
(which determination made on a reasonable basis shall be conclusive absent
manifest error) that:
(a) quotations of interest rates for the relevant deposits
referred to in the definition of "Base Rate" in
46
Section 1.01 hereof or foreign exchange agreements or contracts with
respect to an Alternative Currency are not being provided in the
relevant amounts or for the relevant maturities for purposes of
determining the rate of interest for such Fixed Rate Loan as provided
in this Agreement; or
(b) the relevant rates of interest referred to in the definition
of "Base Rate" in Section 1.01 hereof upon the basis of which the Fixed
Rate for such Interest Period and applicable currency is to be
determined do not adequately reflect the cost to the Lenders of making
or maintaining such Fixed Rate Loan for such Interest Period or such
Fixed Rate Loan (which determination shall be made on a reasonable
basis by the Administrative Agent, and the Person making such
determination shall furnish the Authorized Representative evidence of
the facts leading to such determination);
then the Administrative Agent shall give the Authorized Representatives prompt
notice thereof, and so long as such condition remains in effect, the Lenders
shall be under no obligation to make Fixed Rate Loans that are subject to such
condition, or to convert Loans into Fixed Rate Loans that are subject to such
condition, and the Borrowers shall on the last day(s) of the then current
Interest Period(s) for outstanding Fixed Rate Loans of the type subject to such
condition, as applicable, convert such Fixed Rate Loans into a Fixed Rate Loan
if such Fixed Rate Loan is not subject to the same or similar condition, or
Floating Rate Loans, if available hereunder. The Administrative Agent shall give
the Authorized Representatives notice describing in reasonable detail any event
or condition described in this Section 4.02 promptly following the determination
by the Administrative Agent that the availability of Fixed Rate Loans is, or is
to be, suspended as a result thereof.
4.03 ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender to honor its
obligation to make or maintain Fixed Rate Loans hereunder, then such Lender
shall promptly notify the Administrative Agent and the Borrowers thereof and
such Lender's obligation to make or continue Fixed Rate Loans that are subject
to such condition, or convert Floating Rate Loans into Fixed Rate Loans that are
subject to such condition, shall be suspended until such time as such Lender may
again make and maintain Fixed Rate Loans, and such Lender's outstanding Fixed
Rate Loans of the type subject to such condition shall be converted into
Floating Rate Loans in accordance with Section 2.09 hereof.
4.04 COMPENSATION. The Borrowers shall promptly pay to the
Administrative Agent for the benefit of each Lender, upon the request of such
Lender, such amount or amounts as shall be sufficient (in the reasonable
determination of Lender) to compensate it for any loss, cost or expense incurred
by it as a result of:
47
(a) any payment, prepayments, conversion or required assignments
of a Fixed Rate Loan on a date other than the last day of the Interest
Period for such Fixed Rate Loan, except for any conversion required
pursuant to this Article IV; or
(b) any failure by the Borrowers to borrow, continue or convert
into a Fixed Rate Loan on the date for such borrowing, continuation or
conversion specified in the relevant Borrowing Notice under Article II
hereof;
such compensation to include, without limitation, an amount equal to the excess,
if any, of (i) the amount of interest which would have accrued on the principal
amount so paid, prepaid or converted or not borrowed for the period from the
date of such payment, prepayment or conversion or failure to borrow or convert
to the last day of the then current Interest Period for such Loan (or, in the
case of a failure to borrow or convert, the Interest Period for such Loan which
would have commenced on the date scheduled for such borrowing or conversion) at
the applicable rate of interest for such Fixed Rate Loan provided for herein
over (ii) the Base Rate (as reasonably determined by the Administrative Agent)
for Dollar deposits, or the Alternative Currency, as the case may be, of amounts
comparable to such principal amount and maturities comparable to such period. In
addition, Borrowers shall pay to the Agent for the benefit of Lenders any costs
associated with the earlier termination of any foreign exchange agreements or
contracts associated with an Alternative Currency. A determination of a Lender
as to the amounts payable pursuant to this Section 4.04 shall be conclusive,
provided that such determinations are made on a reasonable basis. The Lender
requesting compensation under this Section 4.04 shall furnish to the Authorized
Representative and the Administrative Agent calculations in reasonable detail
setting forth such Lender's determination of the amount of such compensation.
4.05 ALTERNATE LOAN AND LENDER. In the event any Lender suspends the
making of any Fixed Rate Loan pursuant to this Article IV (herein a "Restricted
Lender"), the Restricted Lender's Commitment Percentage of any Fixed Rate Loan
shall bear interest at either the Floating Rate or the Fixed Rate for which the
suspension does not apply, as selected by the applicable Borrower, until the
Restricted Lender once again makes available the applicable Fixed Rate Loan.
Notwithstanding the provisions of Section 2.02(b), interest shall be payable to
the Restricted Lender at the time and manner as paid to those Lenders making
available Fixed Rate Loans.
4.06 TAXES. All payments by the Borrowers of principal of, and
interest on, the Loans and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future excise, stamp
or other taxes, fees, duties, levies, imposts, charges, deductions, withholdings
or other charges of any nature whatsoever imposed by any taxing authority, but
excluding (i) franchise taxes, (ii) any taxes (other than
48
withholding taxes) that would not be imposed but for a connection between a
Lender or the Administrative Agent and the jurisdiction imposing such taxes
(other than a connection arising solely by virtue of the activities of such
Lender or the Administrative Agent pursuant to or in respect of this Agreement
or any other Loan Document), (iii) any taxes imposed on or measured by any
Lender's assets, net income, receipts or branch profits and (iv) any taxes
arising after the Closing Date solely as a result of or attributable to Lender
changing its designated lending office after the date such Lender becomes a
party hereto (such non-excluded items being collectively called "Taxes"). In the
event that any withholding or deduction from any payment to be made by the
Borrowers hereunder is required in respect of any Taxes pursuant to any
applicable law, rule or regulation, then the Borrowers will
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to the Administrative Agent an official
receipt or other documentation satisfactory to the Administrative Agent
evidencing such payment to such authority; and
(c) pay to the Administrative Agent for the account of the
Lender such additional amount or amounts as is necessary to ensure that
the net amount actually received by each Lender will equal the full
amount such Lender would have received had no such withholding or
deduction been required.
Prior to the date that any Lender or participant organized under the
laws of a jurisdiction outside the United States becomes a party hereto, such
Person shall deliver to the Borrowers and the Administrative Agent such
certificates, documents or other evidence, as required by the Code or Treasury
Regulations issued pursuant thereto, properly completed, currently effective and
duly executed by such Lender or participant establishing that such payment is
(i) not subject to United States Federal backup withholding tax and (ii) not
subject to United States Federal withholding tax under the Code because such
payment is either effectively connected with the conduct by such Lender or
participant of a trade or business in the United States or totally exempt from
United States Federal withholding tax by reason of the application of the
provisions of a treaty to which the United States is a party or such Lender is
otherwise exempt.
If the Borrowers fail to pay any Taxes when due to the appropriate
taxing authority or fail to remit to the Administrative Agent, for the account
of the respective Lender, the required receipts or other required documentary
evidence, the Borrowers shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure. For purposes of this Section 4.06, a distribution
49
hereunder by the Administrative Agent or any Lender to or for the account of any
Lender shall be deemed a payment by the Borrowers.
4.07 RESTRICTED LENDER. In the event any Restricted Lender seeks
additional compensation pursuant to this Article IV or is restricted from making
any Fixed Rate Loan under this Agreement, the Borrowers may cause such
Restricted Lender to be replaced by a financial institution reasonably
acceptable to the Administrative Agent which is not similarly restricted and
will not seek such additional compensation. Such Restricted Lender agrees to
execute and to deliver to the Administrative Agent an Assignment and Acceptance
as provided in Section 12.01 hereof upon payment of all amounts owed under this
Agreement to such Restricted Lender.
4.08 FUNDING. In the event the Borrowers elect to obtain any Loans as
Fixed Rate Loans pursuant to Section 2.01, or elect to continue any Fixed Rate
Loans or convert any portion of the principal amount of any Floating Rate Loans
to Fixed Rate Loans pursuant to Section 2.09, each Lender may, if it so elects,
fulfill its obligation to make or continue any portion of the principal amount
of any Loan as, or to convert any portion of the principal amount of any Loan
into, a Fixed Rate Loan in accordance with any election made by the Borrowers by
causing a foreign branch or Affiliate of such Lender or an international banking
facility created by such Lender to make such Fixed Rate Loan; provided that in
such event such Fixed Rate Loan shall be deemed to have been made by such
Lender, and the obligation of the Borrowers to repay such Fixed Rate Loan shall
nevertheless be to such Lender and shall be deemed to be held by such Lender, to
the extent of such Fixed Rate Loan, for the account of such foreign branch,
Affiliate or international banking facility. In addition, the Borrowers hereby
consent and agree that, for purposes of any determination to be made for
purposes of this Agreement (including Sections 4.01, 4.02, 4.03 and 4.04), it
shall be conclusively assumed that each Lender elected to fund all Fixed Rate
Loans by purchasing Dollar or Alternative Currency deposits, as the case may be,
in its eurodollar office's interbank eurodollar market.
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ARTICLE V
ONE LOAN
5.01 ONE LOAN. All Loans and Advances by the Lenders to Borrowers
under this Agreement and the Obligations shall constitute a general obligation
of IVAX. Notwithstanding anything contained herein to the contrary, the
Obligations of NHL shall in no event exceed the NHL Sublimit plus interest
thereon and any amounts payable by reason of a foreign currency fluctuation
causing the obligations of NHL to exceed the NHL Sublimit. The Administrative
Agent will maintain a single loan account for Advances to the Borrowers,
however, NHL shall be liable to the Lenders only for the amount of Advances made
to it and interest accrued thereon.
5.02 GUARANTY. IVAX guarantees to the Lenders the payment in full of
all of the Obligations of NHL to the Lenders when and as due and further
guarantees the due performance by NHL of its duties and covenants made in favor
of the Lenders hereunder when and as due. IVAX agrees that its liability shall
not be impaired or affected by any modification, supplement, extension or
amendment of any contract or agreement to which the parties thereto may
hereafter agree, nor by any delay, extension of time, renewal, compromise or
other indulgence granted by the Lenders with respect to any of the Obligations
of NHL, nor by any other agreements or arrangements whatever with NHL, IVAX
hereby waiving all notice of any such delay, extension, release, substitution,
renewal, compromise or other indulgence, and hereby consenting to be bound
thereby as fully and effectually as if it had expressly agreed thereto in
advance. The liability of IVAX hereunder is direct and unconditional as to all
of the Obligations hereunder, and may be enforced without requiring the Lenders
first to resort to any other right, remedy or security; IVAX shall not have any
right of subrogation, reimbursement or indemnity whatsoever, nor any right of
recourse to security for any of the Obligations hereunder, unless and until all
of said Obligations have been paid in full; nothing shall discharge or satisfy
the liability of IVAX hereunder except the full payment and performance of all
of the Obligations; any and all present and future debts and obligations of a
Borrower to the other are hereby waived and postponed in favor of and
subordinated to the full payment and performance of all present and future
Obligations of the Borrowers to the Lenders.
5.03 SUBORDINATION. Each Borrower hereby subordinates any claims
(other than claims evidenced by notes which have been assigned and delivered to
the Lenders), including, without limitation, any other right of payment,
subrogation, contribution, and indemnity that it may have from or against the
other Borrower, and any successor or assign of the other Borrower, including,
without limitation, any trustee, receiver or debtor-in-possession, howsoever
arising, due or owing and whether heretofore, now or
51
hereafter existing, to all of the Obligations of the other Borrower to the
Lenders.
52
ARTICLE VI
CONDITIONS TO MAKING LOANS AND ISSUING
LETTERS OF CREDIT
6.01 CONDITIONS OF INITIAL ADVANCE AND ISSUANCE OF LETTERS OF CREDIT.
The obligation of the Lenders to make the initial Advance and of any Lender to
issue a Letter of Credit is subject to the conditions precedent that the
Administrative Agent shall have received on the Closing Date, in form and
substance satisfactory to the Administrative Agent and Lenders, the following:
(a) executed originals of each of this Agreement, the Notes and
the other Loan Documents (except the LC Account Agreement), together
with all schedules and exhibits thereto;
(b) favorable written opinions of special counsel to the
Borrowers and the Guarantors dated the Closing Date, addressed to the
Administrative Agent and the Lenders and satisfactory to Smith Helms
Mulliss & Moore, L.L.P., special counsel to the Administrative Agent,
substantially in the form of EXHIBITS L AND M attached hereto;
(c) resolutions of the boards of directors or other appropriat
governing body (or of the appropriate committee thereof) of the
Borrowers and each of the Guarantors certified by its secretary or
assistant secretary as of the Closing Date, designating (in the case of
the Borrowers) the office or offices of the Authorized Representative
and approving and adopting the Loan Documents to be executed by such
Person, and authorizing the execution and delivery thereof;
(d) specimen signatures of officers of the Borrowers and each
Guarantor executing the Loan Documents on behalf of such Person,
certified by the secretary or assistant secretary of the Borrowers or
Guarantor, as applicable;
(e) the charter documents of the Borrowers and each Guarantor
certified as of a recent date by the Secretary of State of its state
of incorporation;
(f) the by-laws of the Borrowers and each domestic Guarantor
certified as of the Closing Date as true and correct by the secretary
or assistant secretary of the Person to whom such by-laws relate;
(g) certificates issued as of a recent date by the Secretary of
States of the respective states of incorporation as to the due
existence and good standing of the Borrowers and each domestic
Guarantor therein;
(h) notice of appointment of the initial Authorized
Representatives;
53
(i) certificate of Authorized Representatives dated the
Closing Date demonstrating compliance with the financial covenants
contained in Sections 9.01, 9.02 and 9.03, as applicable, as of March
31, 1996, substantially in the form of EXHIBIT F attached hereto;
(j) an initial Borrowing Notice;
(k) all fees payable by the Borrowers on the Closing Date to
the Administrative and Syndication Agents;
(l) such other documents, instruments, certificates and opinions
as the Administrative Agent or any Lender may reasonably request on or
prior to the Closing Date in connection with the consummation of the
transactions contemplated hereby;
(m) NationsBank and BofA must be repaid in full under the
existing $175,000,000 Revolving Credit Facility and such facility
terminated; and
(n) the uncommitted $15,000,000 line of credit available to
IVAX from ABN AMRO Bank N.V.and any other uncommitted bid line
disclosed to the Administrative Agent must be repaid and terminated at
the Closing Date.
6.02 CONDITIONS OF LOANS. The obligations of the Lenders to make any
Loans, and the Issuers to issue Letters of Credit hereunder on or subsequent to
the Closing Date are subject to the satisfaction of the following conditions:
(a) the Administrative Agent shall have received a notice of
such borrowing or request if required by Article II hereof;
(b) the representations and warranties of the Borrowers set
forth in Article VII hereof and in each of the other Loan Documents
shall be true and correct in all material respects on and as of the
date of such Advance or issuance of such Letters of Credit, as the case
may be, with the same effect as though such representations and
warranties had been made on and as of such date, except to the extent
that such representations and warranties expressly relate to an earlier
date and except that the financial statements referred to in Section
7.01(f)(i) shall be deemed to be those financial statements most
recently delivered to the Administrative Agent (together with copies
for each Lender) to Section 8.01 hereof; provided, however, in the
event the Borrowers shall have disclosed in writing to the Lenders any
event or condition which has occurred or come into existence subsequent
to the Closing Date which if it had occurred or come into existence
prior to the Closing Date would have been disclosed in a schedule to
this Agreement and the Lenders have elected to
54
continue to make Advances hereunder, then such event or condition shall
be deemed to be disclosed in the relevant schedule hereto;
(c) in the case of the issuance of a Letter of Credit, the
applicable Borrower shall have executed and delivered to the Issuer an
Application and Agreement for Letter of Credit in form and content
acceptable to the Issuer together with such other instruments and
documents as it shall request;
(d) at the time of each such Advance or issuance of each Letter
of Credit, as the case may be, no Default or Event of Default specified
in Article X hereof, shall have occurred and be continuing; and
(e) immediately after giving effect to the requested Loan or
Letter of Credit (i) the aggregate principal balance of all outstanding
Syndicated Loans and Participations of each Lender shall not exceed
such Lender's Revolving Credit Commitment and (ii) the aggregate
principal balance of all outstanding Loans plus the aggregate amount of
Outstanding Letters of Credit shall not exceed the Available Revolving
Credit Commitment.
Each borrowing of Loans and each issuance of a Letter of Credit shall constitute
a representation and warranty by the Borrowers that the conditions set forth in
clauses (b) and (d) above have been satisfied as of the date thereof.
55
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.01 REPRESENTATIONS AND WARRANTIES. Each Borrower represents and
warrants with respect to itself and to its Significant Subsidiaries (which
representations and warranties shall survive the delivery of the documents
mentioned herein and the making of Loans and the issuance of Letters of Credit),
that:
(a) ORGANIZATION AND AUTHORITY.
(i) such Borrower and each Significant Subsidiary is a
corporation duly organized and validly existing under the laws of the
jurisdiction of its incorporation;
(ii) such Borrower and each Significant Subsidiary (x) has the
requisite power and authority to own its properties and assets and to
carry on its business as now being conducted and as contemplated in the
Loan Documents, and (y) is qualified to do business in every
jurisdiction in which failure so to qualify would have a material
adverse effect on the business or operations of such Borrower or any
Significant Subsidiary;
(iii) such Borrower has the power and authority to execute, deliver
and perform this Agreement and the Notes, and to borrow hereunder, and
to execute, deliver and perform each of the other Loan Documents to
which it is a party;
(iv) each Guarantor has the power and authority to execute, deliver
and perform the Guaranty and the other Loan Documents to which it is a
party; and
(v) when executed and delivered, each of the Loan Documents to
which such Borrower or any Guarantor is a party will be the legal,
valid and binding obligation or agreement, as the case may be, of such
Borrower or Guarantor, enforceable against such Borrower or Guarantor
in accordance with its terms, subject to the effect of any applicable
bankruptcy, moratorium, insolvency, reorganization or other similar law
affecting the enforceability of creditors' rights generally and to the
effect of general principles of equity which may limit the availability
of equitable remedies (whether in a proceeding at law or in equity);
(b) LOAN DOCUMENTS. The execution, delivery and performance by each
of the Borrowers and each Guarantor of each of the Loan Documents to which such
Borrower or a Guarantor is a party:
56
(i) have been duly authorized by all requisite corporate action
(including any required shareholder approval) of such Borrower or
Guarantor signatory thereto required for the lawful execution, delivery
and performance thereof;
(ii) do not violate any provisions of (1) applicable law, rule or
regulation, (2) any order of any court or other agency of government
binding on such Borrower, any Guarantor or any other Subsidiary of such
Borrower, or their respective properties, or (3) the charter documents
or by-laws of such Borrower or any Guarantor;
(iii) will not be in conflict with, result in a breach of or
constitute an event of default, or an event which, with notice or lapse
of time, or both, would constitute an event of default, under any
indenture, material agreement or other material instrument to which
such Borrower or any Guarantor is a party, or by which the properties
or assets of such Borrower or any Guarantor is bound;
(iv) will not result in the creation or imposition of any Lien
charge or encumbrance of any nature whatsoever upon any of the
properties or assets of such Borrower or any Guarantor except any Liens
in favor of the Administrative Agent and the Lenders created by the
Loan Documents.
(c) SOLVENCY. Such Borrower and each Significant Subsidiary is Solvent
after giving effect to the transactions contemplated by this Agreement and the
other Loan Documents.
(d) SUBSIDIARIES AND STOCKHOLDERS. SCHEDULE 7.01(D) to this Agreement
states as of the date hereof the authorized and issued capitalization of each
Significant Subsidiary of each of the Borrowers, the number of shares or other
equity interests of each class of capital stock or interest issued and
outstanding of each such Significant Subsidiary and the number and/or percentage
of outstanding shares or other equity interest (including options, warrants and
other rights to acquire any interest) of each such class of capital stock or
equity interest owned by each Borrower; the outstanding shares or other equity
interests of each such Significant Subsidiary have been duly authorized and
validly issued and are fully paid and nonassessable; and each Borrower owns
beneficially and of record all the shares and other interests it is listed as
owning in SCHEDULE 7.01(D), free and clear of any Lien other than Liens in favor
of the Administrative Agent or the Lenders in connection with this Agreement.
57
(e) OWNERSHIP INTERESTS. SCHEDULE 7.01(E) contains a list as of the
Closing Date of investments of each of the Borrowers and their Significant
Subsidiaries in any Person;
(f) FINANCIAL CONDITION. (i) The Borrowers have heretofore furnished
to the Administrative Agent and the Administrative Agent hereby acknowledges
receipt of the audited consolidated balance sheet of IVAX and its Subsidiaries
as at December 31, 1995 and the notes thereto and the related consolidated
statements of operations, stockholders' equity and cash flows for the Fiscal
Year then ended as audited by Arthur Andersen L.L.P. and as to which Arthur
Andersen L.L.P. has expressed an opinion based on such audit, accompanied by
unaudited consolidating balance sheet of IVAX and its Subsidiaries as at
December 31, 1995 and a related unaudited consolidating statement of operations
for the Fiscal Year then ended. Except as set forth therein, such financial
statements (including the notes thereto) present fairly the financial condition
of IVAX and its Subsidiaries as of the end of such Fiscal Year and results of
their operations and the changes in their stockholders' equity for such Fiscal
Year, all in conformity with Generally Accepted Accounting Principles applied on
a Consistent Basis;
(ii) since December 31, 1995, there has been no materia adverse
change in the condition, financial or otherwise, of the Borrowers and
their Subsidiaries, each considered as a whole, which has not been
disclosed in writing by the Borrowers to the Lenders prior to the
Closing Date, or in the businesses, properties and operations of the
Borrowers and their Subsidiaries, each considered as a whole, nor have
such businesses or properties, taken as a whole, been materially
adversely affected as a result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood, embargo or
act of God;
(iii) except as set forth or recorded in the financial statements
referred to in Section 7.01(f)(i) or in SCHEDULE 7.01(F) or SCHEDULE
7.01(J) hereto or otherwise disclosed by the Borrowers in writing to
the Lenders prior to the Closing Date, neither Borrower nor any
Subsidiary of either Borrower has incurred, other than in the ordinary
course of business, any material indebtedness, obligations, commitments
or other liability contingent or otherwise which remain outstanding or
unsatisfied which in the aggregate would have a material adverse effect
on the business, operations or condition, financial or otherwise, of
IVAX and its Subsidiaries, taken as a whole;
(g) TITLE TO PROPERTIES. Each of the Borrowers and their Significant
Subsidiaries have title to all their respective real and personal properties,
subject to no Liens, except for (x) the Liens described in SCHEDULE 7.01(G)
58
attached hereto and incorporated herein by reference or Liens to be satisfied
with the proceeds of the Loans, and (y) Liens permitted under Section 9.05
hereof;
(h) TAXES. Except as set forth in SCHEDULE 7.01(H) hereto or otherwise
disclosed in writing by such Borrower to the Lenders prior to the Closing Date,
such Borrower and its Significant Subsidiaries have filed or caused to be filed
all federal, state and local tax returns which are required to be filed by it
and except for taxes and assessments being contested in good faith and against
which reserves satisfactory to such Borrower's independent certified public
accountants have been established, have paid or caused to be paid all taxes as
shown on said returns or on any assessment received by them, to the extent that
such taxes have become due, except for taxes not paid and tax returns the
failure to file of which would not have a material adverse effect on the
business, operations or condition, financial or otherwise, of IVAX and its
Significant Subsidiaries, taken as a whole;
(i) OTHER AGREEMENTS. Except as set forth in SCHEDULE 7.01(I), or
otherwise disclosed in writing by such Borrower to the Lenders prior to the
Closing Date neither such Borrower nor any Significant Subsidiary of such
Borrower is
(i) a party to any judgment, order, decree or any agreement or
instrument or subject to restrictions materially adversely affecting
the ability of such Borrower to repay Advances made under this
Agreement; or
(ii) in default in the performance, observance or fulfillment of
any of the obligations, covenants or conditions contained in any
agreement or instrument to which such Borrower or any Significant
Subsidiary of such Borrower is a party, which default has, or if not
remedied within any applicable grace period could have, a material
adverse effect on the business, operations or condition, financial or
otherwise, of IVAX and its Subsidiaries, taken as a whole;
(j) LITIGATION. Except as set forth in SCHEDULE 7.01(J) hereto or
otherwise disclosed in writing by such Borrower to the Lenders prior to the
Closing Date, there is no action, suit or proceeding at law or in equity or by
or before any governmental instrumentality or agency or arbitral body pending,
or, to the knowledge of such Borrower, threatened by or against such Borrower or
any Significant Subsidiary of such Borrower or affecting such Borrower or any
Significant Subsidiary of such Borrower or any properties or rights of such
Borrower or any Significant Subsidiary of such Borrower, which would, if
adversely determined, materially adversely affect the financial condition,
business or operations of such Borrower and its Significant Subsidiaries, taken
as a whole;
59
(k) MARGIN STOCK. The proceeds of the borrowings made pursuant t
Article II hereof will be used by such Borrower only for the purposes set forth
in Section 2.13 hereof. None of such proceeds will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin stock or for
the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry margin stock or for any other purpose which might
constitute any of the Loans under this Agreement a "purpose credit" within the
meaning of said Regulation U or Regulation X (12 C.F.R. Part 224) of the Board.
Neither such Borrower nor any agent acting in its behalf has taken or will take
any action which might cause this Agreement or any of the documents or
instruments delivered pursuant hereto to violate any regulation of the Board or
to violate the Securities Exchange Act of 1934, as amended, or the Securities
Act of 1933, as amended, or any state securities laws, in each case as in effect
on the date hereof;
(l) INVESTMENT COMPANY. Neither such Borrower nor any Subsidiary is
an "investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are defined
in the Investment Company Act of 1940, as amended (15 U.S.C. ss. 80a-1, et
seq.);
(m) PATENTS, ETC. Except as set forth in SCHEDULE 7.01(M) hereto or
otherwise disclosed in writing by such Borrower to the Lenders prior to the
Closing Date, such Borrower and its Significant Subsidiaries own or have the
right to use, under valid license agreements or otherwise, all material patents,
licenses, franchises, trademarks, trademark rights, trade names, trade name
rights, trade secrets and copyrights necessary to the conduct of their
businesses as now conducted, without known conflict with any patent, license,
franchise, trademark, trade secrets and confidential commercial or proprietary
information, trade name, copyright, rights to trade secrets or other proprietary
rights of any other Person which conflict is reasonably likely to have a
materially adverse effect on IVAX and its Subsidiaries, taken as a whole;
(n) NO UNTRUE STATEMENT. Neither this Agreement nor any other Loan
Document or certificate or document executed and delivered by or on behalf of
such Borrower or any Guarantor in accordance with or pursuant to any Loan
Document contains any misrepresentation or untrue statement of material fact or
omits to state a material fact necessary in order to make any such
representation or statement contained therein, in light of the circumstances
under which it was made, not misleading in any material respect;
60
(o) NO CONSENTS, ETC. Except as set forth in SCHEDULE 7.01(O) hereto
or as otherwise disclosed in writing by such Borrower to the Lenders prior to
the Closing Date, neither the respective businesses or properties of such
Borrower or any Significant Subsidiary of such Borrower, nor any relationship
between such Borrower or any Significant Subsidiary of such Borrower and any
other Person, nor any circumstance in connection with the execution, delivery
and performance of the Loan Documents and the transactions contemplated hereby
is such as to require a consent, approval or authorization of, or filing,
registration or qualification with, any governmental or other authority or any
other Person on the part of such Borrower or any Significant Subsidiary of such
Borrower as a condition to the execution, delivery and performance of, or
consummation of the transactions contemplated by, this Agreement or the other
Loan Documents or if so, such consent, approval, authorization, filing,
registration or qualification has been obtained or effected, as the case may be,
in any case where the failure to obtain such consent, approval, authorization,
filing, registration or qualification would affect the legality, validity or
enforceability of the Loan Documents;
(p) ERISA.
(i) None of the employee benefit plans maintained at any time by
such Borrower or any Subsidiary of such Borrower or the trusts created
thereunder has engaged in a prohibited transaction which could subject
any such employee benefit plan or trust to a material tax or penalty on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA or under any Foreign Benefit Law;
(ii) None of the employee benefit plans maintained at any time by
such Borrower or any Subsidiary of such Borrower which are employee
pension benefit plans and which are subject to Title IV of ERISA or any
Foreign Benefit Law or the trusts created thereunder has been
terminated so as to result in a material liability of such Borrower
under ERISA or any other Person exercising similar duties and functions
under any Foreign Benefit Law nor has any such employee benefit plan of
such Borrower or any Subsidiary of such Borrower incurred any material
liability to the Pension Benefit Guaranty Corporation established
pursuant to ERISA, other than for required insurance premiums which
have been paid or are not yet due and payable; neither such Borrower
nor any Subsidiary of such Borrower has withdrawn from or caused a
partial withdrawal to occur with respect to any Multi-employer Plan
resulting in any assessed and unpaid withdrawal liability; such
Borrower and the Subsidiaries of such Borrower have made or provided
for all contributions to all such employee pension benefit plans which
they maintain and which are required as of the end of the most recent
fiscal year under each such plan;
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except as disclosed in SCHEDULE 7.01(P), neither such Borrower nor any
Subsidiary of such Borrower has incurred any accumulated funding
deficiency with respect to any such plan, whether or not waived; nor
has there been any reportable event, or other event or condition, which
presents a material risk of termination of any such employee benefit
plan by such Pension Benefit Guaranty Corporation or other Person
exercising similar duties and functions under any Foreign Benefit Law;
(iii) Except as disclosed in SCHEDULE 7.01(P), or otherwise
disclosed in writing to the Administrative Agent prior to the Closing
Date, the present value of all vested accrued benefits under the
employee pension benefit plans which are subject to Title IV of ERISA
or any Foreign Benefit Law, maintained by such Borrower or any
Subsidiary of such Borrower, did not, as of the most recent valuation
date for each such plan, exceed the then current value of the assets of
such employee benefit plans allocable to such benefits;
(iv) The consummation of the Loans and the issuance of the Letters
of Credit provided for in Article II and Article III will not involve
any prohibited transaction under ERISA or violate any Foreign Benefit
Law which in either case is not subject to a statutory or
administrative exemption;
(v) To the best of such Borrower's knowledge, each employee
pension benefit plan subject to Title IV of ERISA or other Foreign
Benefit Law, maintained by such Borrower or any Subsidiary of such
Borrower, has been administered in accordance with its terms in all
material respects and is in compliance in all material respects with
all applicable requirements of ERISA and other applicable laws,
regulations and rules and any applicable Foreign Benefit Law;
(vi) There has been no withdrawal liability incurred and unpaid
with respect to any Multi-employer Plan to which such Borrower or any
Subsidiary of such Borrower is or was a contributor;
(vii) As used in this Agreement, the terms "employee benefit plan,
"employee pension benefit plan," "accumulated funding deficiency,"
"reportable event," and "accrued benefits" shall have the respective
meanings assigned to them in ERISA, and the term "prohibited
transaction" shall have the meaning assigned to it in Code Section 4975
and ERISA;
(viii) Neither such Borrower nor any Significant Subsidiary of such
Borrower has any liability not disclosed on any of the financial
statements furnished to the Lenders pursuant to Section 7.01(f) hereof,
contingent or otherwise, under any plan or program or the equivalent
for unfunded post-retirement benefits, including pension, medical and
death
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benefits, which liability would have a material adverse effect
on the financial condition of such Borrower or any Subsidiary;
(q) NO DEFAULT. As of the date hereof, there does not exist any
Default or Event of Default hereunder;
(r) HAZARDOUS MATERIALS. To the knowledge of such Borrower, such
Borrower and each Significant Subsidiary of such Borrower is in compliance with
all applicable Environmental Laws in all material respects and neither such
Borrower nor any Significant Subsidiary of such Borrower has been notified of
any action, suit, proceeding or investigation which calls into question
compliance by such Borrower or any Significant Subsidiary of such Borrower with
any Environmental Laws or which seeks to suspend, revoke or terminate any
license, permit or approval necessary for the generation, handling, storage,
treatment or disposal of any Hazardous Material the effect of which would have a
materially adverse effect on such Borrower and its Significant Subsidiaries,
taken as a whole;
(s) RICO. To the knowledge of such Borrower, neither such Borrower
nor any Subsidiary of such Borrower is engaged in or has engaged in any course
of conduct that could subject any of their respective properties to any Lien,
seizure or other forfeiture under any criminal law, racketeer influenced and
corrupt organizations law, civil or criminal, or other similar laws the effect
of which would have a material adverse effect on IVAX and its Subsidiaries,
taken as a whole;
(t) EMPLOYMENT MATTERS. Except as disclosed on SCHEDULE 7.01(T)
hereto or as otherwise disclosed in writing by such Borrower to the Lenders
prior to the Closing Date, such Borrower and its Significant Subsidiaries are in
compliance in all material respects with all applicable laws, rules and
regulations pertaining to labor or employment matters, including without
limitation those pertaining to wages, hours, occupational safety and taxation
and there is neither pending or to the knowledge of such Borrower threatened any
material litigation, administrative proceeding nor, to the knowledge of such
Borrower, any investigation, in respect of such matters the effect of which
non-compliance, litigation, administrative proceeding or investigation would
have a material adverse effect on IVAX and its Subsidiaries, taken as a whole.
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ARTICLE VIII
AFFIRMATIVE COVENANTS
Until the Obligations have been paid and satisfied in full and this
Agreement has been terminated in accordance with the terms hereof, unless the
Required Lenders shall otherwise consent in writing, each Borrower will and will
cause each Significant Subsidiary of such Borrower to:
8.01 FINANCIAL REPORTS, ETC. (a) within 120 days after the end of each
Fiscal Year of IVAX, deliver or cause to be delivered to the Administrative
Agent (together with copies for each Lender) (i) consolidated and unaudited
consolidating balance sheets of IVAX and its Subsidiaries, and the notes
thereto, the related consolidated and unaudited consolidating statements of
operations, stockholders' equity and cash flows and the respective notes thereto
for such Fiscal Year, setting forth in the case of the consolidated statements
comparative financial statements for the preceding Fiscal Year, all prepared in
accordance with Generally Accepted Accounting Principles applied on a Consistent
Basis and containing, with respect to the consolidated financial reports,
opinions of any of Arthur Andersen L.L.P., Coopers & Lybrand, Price Waterhouse
L.L.P., KPMG Peat Marwick, Deloitte & Touche, Ernst & Young or other such
independent certified public accountants selected by IVAX and approved by the
Required Lenders, which are unqualified as to the scope of the audit performed
and as to the "going concern" status of such Borrower; (ii) Consolidating
Balance Sheet of NHL and its Subsidiaries for such Fiscal Year; and (iii) a
certificate of an Authorized Representative demonstrating compliance with
Sections 9.01 through 9.03 of this Agreement, which certificate shall be in the
form attached hereto as EXHIBIT F;
(b) within 50 days after the end of each quarterly period (except the
last reporting period of the Fiscal Year), deliver to the Administrative Agent
(together with copies for each Lender) (i) consolidated and consolidating
balance sheets of IVAX and its Subsidiaries as of the end of such reporting
period, the related consolidated and consolidating statements of operations and
cash flows for such reporting period and for the period from the beginning of
the Fiscal Year through the end of such reporting period, accompanied by a
certificate of an Authorized Representative to the effect that such consolidated
financial statements present fairly the financial position of IVAX and its
Subsidiaries as of the end of such reporting period and the results of their
operations and the changes in their financial position for such reporting
period, in conformity with GAAP, subject, however, to year end adjustments with
respect to interim financials, (ii) Consolidating Balance Sheet of NHL and its
Subsidiaries for such reporting period and (iii) a certificate of an Authorized
Representative containing computations for such quarter comparable to that
required pursuant to Section 8.01(a)(iii);
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(c) together with each delivery of the financial statements required by
Section 8.01(a)(i) hereof, deliver to the Administrative Agent (together with
copies for each Lender) a letter from such Borrower's accountants specified in
Section 8.01(a)(i) hereof stating that in performing the audit necessary to
render an opinion on the financial statements delivered under Section
8.01(a)(i), they obtained no knowledge of any Default or Event of Default by
such Borrower in the fulfillment of the terms and provisions of this Agreement
insofar as they relate to financial covenants (which at the date of such
statement remains uncured); and if the accountants have obtained knowledge of
such Default or Event of Default, a statement specifying the nature and period
of existence thereof;
(d) promptly upon their becoming available to such Borrower, such
Borrower shall deliver to the Administrative Agent (together with copies for
each Lender) a copy of (i) all regular or special reports or effective
registration statements for the sale of securities to the general public on
behalf of such Borrower or the private placement of securities of such Borrower
which such Borrower or any Subsidiary of such Borrower shall file with the
Securities and Exchange Commission (or any successor thereto) or any securities
exchange, (ii) any proxy statement distributed by such Borrower to its
shareholders, bondholders or the financial community in general, and (iii) any
management letter submitted to such Borrower or any of its Significant
Subsidiaries by independent accountants in connection with any annual, interim
or special audit of such Borrower or any of its Subsidiaries; and
(e) promptly, from time to time, deliver or cause to be delivered to
the Administrative Agent and each Lender such other information regarding such
Borrower's and each Subsidiary of such Borrower's operations, business affairs
and financial condition as the Administrative Agent or such Lender may
reasonably request from an Authorized Representative. The Administrative Agent
and the Lenders are hereby authorized to deliver a copy of any such financial
information delivered hereunder to the Lenders (or any affiliate of any Lender)
or to the Administrative Agent, to any regulatory authority having jurisdiction
over any of the Lenders pursuant to any request therefor, or, subject to Section
12.01(e) hereof, to any other Person who shall acquire or consider the
acquisition of a participation interest in or assignment of any Loan or Letter
of Credit permitted by this Agreement.
8.02 MAINTAIN PROPERTIES. Maintain all properties necessary to its
operations in good working order and condition (ordinary wear and tear
excepted).
8.03 EXISTENCE, QUALIFICATION, ETC. Do or cause to be done all things
necessary to preserve and keep in full force and effect its existence and all
material rights and franchises, trade names, trademarks and permits and maintain
its license or qualification to do business as a foreign corporation and good
standing in each
65
jurisdiction in which its ownership or lease of property or the nature of its
business makes such license or qualification necessary and which are material to
the business of IVAX and its Significant Subsidiaries, taken as a whole.
8.04 REGULATIONS AND TAXES. Comply in all material respects with or
contest in good faith all statutes and governmental regulations and pay all
taxes, assessments, governmental charges, claims for labor, supplies, rent and
any other obligation which, if unpaid, might become a Lien against any of its
properties and the failure to pay of which would have a material adverse effect
on the financial condition, business or operations of IVAX and its Subsidiaries,
taken as a whole, except liabilities being contested in good faith and against
which adequate reserves have been established.
8.05 INSURANCE. (i) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers against loss or damage
by fire and other hazards (excluding environmental hazards) as are customarily
insured against by similar businesses owning such properties similarly situated,
(ii) maintain general public liability insurance at all times with responsible
insurance carriers against liability on account of damage to persons and
property, and (iii) maintain insurance under all applicable workers'
compensation laws (or in the alternative, maintain required reserves if
self-insured for workers' compensation purposes).
8.06 TRUE BOOKS. Keep true books of record and account in which full,
true and correct entries will be made of all of its material dealings and
transactions, and set up on its books such reserves as may be required by
Generally Accepted Accounting Principles with respect to doubtful accounts and
all taxes, assessments, charges, levies and claims and with respect to its
business in general, and include such reserves in interim as well as year-end
financial statements.
8.07 RIGHT OF INSPECTION. Permit any Person designated by any Lender or
the Administrative Agent at the Lender's or Administrative Agent's expense, as
the case may be, upon notice to an Authorized Representative, to visit and
inspect any of the properties, corporate books and financial reports of such
Borrower and its Subsidiaries, and upon reasonable prior notice to an Authorized
Representative and at reasonable times to discuss their respective affairs,
finances and accounts with their principal officers and independent certified
public accountants. The Lenders and Administrative Agent shall be provided
copies of such financial information and reports as they may request from an
Authorized Representative, provided that so long as no Event of Default exists
under this Agreement, the Lender or Agent requesting such copies shall pay all
reasonable expenses of producing such copies.
66
8.08 OBSERVE ALL LAWS. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid requirements of any
regulatory authority with respect to the conduct of its business if the failure
to conform to or observe such laws, rules and regulations would have a material
adverse effect on such Borrower or any Significant Subsidiary of such Borrower.
8.09 COVENANTS EXTENDING TO SUBSIDIARIES. Cause each of its Significant
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of such Borrower in Sections 8.02 through 8.08, inclusive.
8.10 OFFICER'S KNOWLEDGE OF DEFAULT. Upon the President, the Chief
Operating Officer, the Chief Financial Officer or the Vice President--Finance of
such Borrower obtaining actual knowledge of any Default or Event of Default
hereunder or under any other obligation of such Borrower or any Significant
Subsidiary where the amount of the obligation is $10,000,000 or greater, cause
such officer to promptly notify the Administrative Agent of the nature thereof,
the period of existence thereof, and what action such Borrower proposes to take
with respect thereto.
8.11 SUITS OR OTHER PROCEEDINGS. Upon the President, the Chief
Operating Officer, the Chief Financial Officer or the Vice President--Finance of
such Borrower obtaining actual knowledge of any litigation or other proceedings
being instituted against such Borrower or any Significant Subsidiary of such
Borrower, or any attachment, levy, execution or other process being instituted
against any assets of such Borrower or any Significant Subsidiary of such
Borrower, in an aggregate amount greater than $10,000,000 not otherwise covered
by insurance, promptly deliver to the Administrative Agent written notice
thereof stating the nature and status of such litigation, dispute, proceeding,
levy, execution or other process.
8.12 NOTICE OF DISCHARGE OF HAZARDOUS MATERIAL OR ENVIRONMENTAL
COMPLAINT. Promptly provide to the Administrative Agent true, accurate and
complete copies of any and all notices, complaints, orders, directives, claims,
or citations received by such Borrower or any Significant Subsidiary of such
Borrower from any Governmental Authority relating to any material (a) violation
or alleged violation by such Borrower or any Significant Subsidiary of such
Borrower of any applicable Environmental Laws or OSHA; or (b) liability or
alleged liability of such Borrower or any Significant Subsidiary of such
Borrower for the costs of cleaning up, removing, remediating or responding to a
release of Hazardous Materials.
8.13 INDEMNIFICATION. Such Borrower hereby agrees to defend, indemnify
and hold the Administrative Agent and the Lenders harmless from and against any
and all claims, losses, liabilities, damages and expenses (including, without
limitation, cleanup costs
67
and reasonable attorneys' fees) arising directly or indirectly from, out of or
by reason of the handling, storage, treatment, emission or disposal of any
Hazardous Material by or in respect of such Borrower or any Subsidiary of any
such Borrower or property owned or leased or operated by the Borrower or any
Subsidiary. The provisions of this Section 8.13 shall survive repayment of the
Obligations, occurrence of the Revolving Credit Termination Date and expiration
or termination of this Agreement.
8.14 FURTHER ASSURANCES. At its cost and expense, upon request of the
Administrative Agent, duly execute and deliver or cause to be duly executed and
delivered, to the Administrative Agent such further instruments, documents,
certificates, financing and continuation statements, and do and cause to be done
such further acts that may be reasonably necessary or advisable in the
reasonable opinion of the Administrative Agent to carry out more effectively the
provisions and purposes of this Agreement and the other Loan Documents.
8.15 ERISA REQUIREMENT. Comply in all material respects with all
requirements of ERISA, to the extent applicable, and any Foreign Benefit Law
applicable to it and furnish to the Administrative Agent as soon as possible and
in any event (i) within thirty (30) days after such Borrower knows or has reason
to know that any reportable event or other event under any Foreign Benefit Law
with respect to any employee benefit plan maintained by such Borrower or any
Subsidiary of such Borrower which could give rise to termination or the
imposition of any material tax or penalty has occurred, written statement of an
Authorized Representative describing in reasonable detail such reportable event
or other event under any Foreign Benefit Law and any action which such Borrower
or applicable Subsidiary of such Borrower proposes to take with respect thereto,
together with a copy of the notice of such reportable event given to the PBGC or
a statement that said notice will be filed with the annual report of the United
States Department of Labor with respect to such plan if such filing has been
authorized, (ii) promptly after receipt thereof, a copy of any notice that such
Borrower or any Subsidiary of such Borrower may receive from the PBGC relating
to the intention of the PBGC to terminate any employee benefit plan or plans of
such Borrower or any Subsidiary of such Borrower or to appoint a trustee to
administer any such plan, and (iii) within 10 days after a filing with the PBGC
pursuant to Section 412(n) of the Code of a notice of failure to make a required
installment or other payment with respect to a plan, a certificate of an
Authorized Representative setting forth details as to such failure and the
action that such Borrower or its affected Subsidiary, as applicable, proposes to
take with respect thereto, together with a copy of such notice given to the
PBGC.
8.16 CONTINUED OPERATIONS. Continue at all times (i) to conduct its
business and engage principally in the same general line or lines of business
substantially as heretofore conducted or
68
those lines of business related to the health care industry or personal care
industry, and (ii) preserve, protect and maintain free from Liens its material
patents, copyrights, licenses, trademarks, trademark rights, trade names, trade
name rights, trade secrets and know-how necessary for the conduct of its
operations.
8.17 USE OF PROCEEDS. Use the proceeds of the Loans solely for the
purposes specified in Section 2.13 hereof.
8.18 MCGAW. Promptly after the payment in full of the Senior Notes
cause McGaw to execute and deliver to the Administrative Agent for the benefit
of the Lenders an unlimited guaranty agreement in the form of the Guaranty
together with corporate resolutions of McGaw duly adopted and authorizing the
execution and delivery of such guaranty agreement together with an opinion of
counsel to McGaw substantially in the form of the opinion set forth in EXHIBIT
M.
8.19 SIGNIFICANT SUBSIDIARY. Within thirty (30) days after the end of
any fiscal quarter in which any Subsidiary of a Borrower becomes a Significant
Subsidiary, cause to be delivered to the Administrative Agent for the benefit of
the Lenders each of the following:
(a) a Guaranty executed by such Subsidiary;
(b) an opinion of counsel to the Subsidiary dated as of the
date of delivery of the Guaranty provided for in this Section 8.19 and
addressed to the Agent and the Lenders, in form and substance
reasonably acceptable to the Agent, to the effect that:
(i) such Subsidiary is duly organized, validly
existing and in good standing in the jurisdiction of its
formation, has the requisite power and authority to own its
properties and conduct its business as then owned and then
conducted and proposed to be conducted, and is duly qualified
to transact business and is in good standing as a foreign
corporation or partnership in each other jurisdiction in which
the character of the properties owned or leased, or the
business carried on by it, requires such qualification and the
failure to be so qualified would reasonably be likely to
result in a material adverse effect on its business taken as a
whole;
(ii) the execution, delivery and performance of the
Guaranty described in this Section 8.19 to which such
Subsidiary is a signatory has been duly authorized by all
requisite corporate or partnership action (including any
required shareholder or partner approval), such agreement has
been duly executed and delivered and constitutes the valid and
binding agreement of such Subsidiary, enforceable against such
Subsidiary in accordance with
69
its terms, subject to the effect of any applicable bankruptcy,
moratorium, insolvency, reorganization or other similar law
affecting the enforceability of creditors' rights generally
and to the effect of general principles of equity (whether
considered in a proceeding at law or in equity);
(c) current copies of the charter documents, including
partnership agreements and certificate of limited partnership, if
applicable, and bylaws of such Subsidiary, minutes of duly called and
conducted meetings (or duly effected consent actions) of the Board of
Directors, partners, or appropriate committees thereof (and, if
required by such charter documents, bylaws or by applicable law, of the
shareholders) of such Subsidiary authorizing the actions and the
execution and delivery of document described in this Section 8.19.
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ARTICLE IX
NEGATIVE COVENANTS
Until the Obligations have been paid and satisfied in full and this
Agreement has been terminated in accordance with the terms hereof, unless the
Required Lenders shall otherwise consent in writing, each Borrower (unless
indicated otherwise) agrees that it will not, nor will it permit any of its
Significant Subsidiaries to:
9.01 CONSOLIDATED TANGIBLE NET WORTH. Permit Consolidated Tangible Net
Worth to be less than (i) $480,000,000 at December 31, 1995 and (ii) as at the
last day of each succeeding fiscal quarter of IVAX and until (but excluding) the
last day of the next following fiscal quarter of IVAX, the sum of (A) the amount
of Consolidated Tangible Net Worth required to be maintained pursuant to this
Section 9.01 as at the end of the immediately preceding fiscal quarter, plus (B)
50% of Consolidated Net Income (but not any portion of any loss) during the
immediately preceding fiscal quarter of the Borrower ending on such day
(including in Consolidated Net Income, for purposes of this Section 9.01 only,
any net gain or credit of an extraordinary nature determined in accordance with
Generally Accepted Accounting Principles) plus (C) 100% of the consolidated
tangible net worth (so long as positive) of any entity acquired pursuant to a
Permitted Acquisition which is accounted for on a "pooling of interest" basis
plus (D) 100% of the net cash proceeds of any issuance by IVAX of any equity
interests in IVAX. Permit consolidated tangible net worth of NHL and its
Subsidiaries to be less than $1.00.
9.02 CONSOLIDATED LEVERAGE RATIO. Permit at any time the Consolidated
Leverage Ratio to be more than 3.5 to 1.00.
9.03 CONSOLIDATED FIXED CHARGE RATIO. Permit at any time the
Consolidated Fixed Charge Ratio to be less than 1.75 to 1.00.
9.04 INDEBTEDNESS OR GUARANTEED OBLIGATIONS. Incur, create, assume or
permit to exist any Indebtedness or Guaranteed Obligations, howsoever evidenced,
except
(i) Indebtedness or Guaranteed Obligations existing as of the date
hereof and as set forth in SCHEDULE 9.04 attached hereto and
incorporated herein by reference and any Indebtedness arising by reason
of the refinancing of any Indebtedness described in SCHEDULE 9.04 so
long as (x) the rate of interest at par is no greater than that paid or
payable with respect to the Indebtedness to be refinanced, (y) the
terms of repayment are as favorable as that of the Indebtedness to be
refinanced, and (z) no additional Lien is created in connection
therewith;
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(ii) Indebtedness or other Obligations owed the Administrative
Agent or the Lenders in connection with this Agreement;
(iii) the Guaranty of the Guarantors;
(iv) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(v) each Significant Subsidiary existing as of the date hereof of
a Borrower may incur Indebtedness, including Guaranteed Obligations, of
up to $25,000,000 (excluding Indebtedness permitted under clauses (i),
(ii) and (iii) of this Section 9.04) and each Significant Subsidiary
acquired after the Closing Date may incur Indebtedness greater than
$25,000,000 PROVIDED such Significant Subsidiary incurred such greater
amount prior to the date a Borrower acquired such Significant
Subsidiary; PROVIDED that the aggregate Indebtedness of all
Subsidiaries (including Indebtedness permitted under clause (i) of this
Section 9.04 but excluding Indebtedness, including Guaranteed
Obligations, incurred hereunder and Indebtedness under the Senior
Notes) shall not exceed 25% of Consolidated Tangible Net Worth
(including newly acquired Subsidiaries on a pro forma basis);
(vi) in addition to those items listed in clauses (i) through (v)
Guaranteed Obligations of IVAX (excluding any item of IVAX or its
Significant Subsidiaries constituting Indebtedness) the outstanding
amount of which do not exceed in the aggregate $60,000,000; and
(vii) in addition to those items listed in (i) through (vi)
additional Indebtedness of IVAX so long as after giving effect thereto
no Default or Event of Default exists hereunder.
9.05 LIENS. Incur, create or permit to exist any pledge, Lien, charge
or other encumbrance of any nature whatsoever with respect to any property or
assets now owned or hereafter acquired by such Borrower or any of its
Significant Subsidiaries, other than
(i) Liens existing as of the date hereof and as set forth in
SCHEDULE 7.01(G) attached hereto;
(ii) Liens imposed by law for taxes, assessments or charges of any
Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings and with respect to
which adequate reserves or other appropriate provisions are being
maintained in accordance with Generally Accepted Accounting Principles;
72
(iii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves or other appropriate provisions
are being maintained in accordance with Generally Accepted Accounting
Principles;
(iv) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal bonds)
in connection with workers' compensation, unemployment insurance and
other types of social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), statutory obligations and other similar obligations or
arising as a result of progress payments under government contracts;
(v) easements (including, without limitation, reciprocal easement
agreements and utility agreements), rights-of-way, covenants, consents,
reservations, encroachments, variations and zoning and other
restrictions, charges or encumbrances (whether or not recorded), which
do not interfere materially with the ordinary conduct of the business
of such Borrower or any Significant Subsidiary of such Borrower and
which do not materially detract from the value of the property to which
they attach or materially impair the use thereof to such Borrower or
any Significant Subsidiary of such Borrower; and
(vi) Liens on property securing Indebtedness assumed in connection
with a Permitted Acquisition so long as the property securing such
Indebtedness is acquired (or the Person owing such property is
acquired) in such Permitted Acquisition.
(vii) purchase money Liens to secure Indebtedness permitted under
Section 9.04(vii) hereof so long as such Indebtedness is incurred to
purchase fixed assets, the Indebtedness represents not less than 75% of
the purchase price of such assets, and no other property other than the
property acquired with the proceeds of such Indebtedness secures such
Indebtedness, provided that the total amount of such Indebtedness
secured by purchase money Liens, including that described in SCHEDULE
7.01(G) but excluding those securing Indebtedness paid with the
proceeds of the Loan, at no time exceeds 10% of Consolidated
Shareholders' Equity.
9.06 TRANSFER OF ASSETS. Sell, lease, transfer or otherwise dispose of
(i) any interest in any Significant Subsidiary provided that if either of the
Specialty Chemicals Group or the Personal Care Product Group become Significant
Subsidiaries, IVAX may dispose of either one or both of such groups PROVIDED (A)
no Default or Event of Default would result from such disposition, and
73
(B) since March 1, 1996 IVAX has not made contributions to such groups without
fair consideration, of net assets which exceed, in the aggregate $20,000,000 in
book value and (C) Significant Subsidiaries of IVAX have not made contributions,
loans or advances to such groups of any assets, which exceed, in the aggregate,
$1,000,000 in book value; or (ii) any other asset of Borrower which has a book
value or sales price in excess of $50,000,000 unless the Borrower shall have
furnished the Administrative Agent with a certificate in the form of EXHIBIT F
demonstrating that after giving effect to such transfer on a pro forma
historical basis as at the most recent date for which a certificate has been
delivered to the Administrative Agent under Section 8.01 hereof such transfer
will not result in a Default or Event of Default hereunder; PROVIDED, HOWEVER,
that IVAX (x) may sell, transfer, spin off or otherwise dispose of Specialty
Chemicals Group or Personal Care Products Group without furnishing such
certificate to the Administrative Agent if the total assets of such group
disposed of is less than $100,000,000 and $75,000,000, respectively, and (y) may
engage in the Receivables Program; PROVIDED, FURTHER, that the Borrowers and
their Significant Subsidiaries may transfer assets to one another.
9.07 INVESTMENTS; ACQUISITIONS. Purchase, own, invest in or otherwise
acquire, directly or indirectly, any stock or other securities or all or
substantially all of the assets, or make or permit to exist any interest
whatsoever in any other Person or permit to exist any loans or advances to any
Person; PROVIDED, Borrowers and their Significant Subsidiaries may make loans or
advances to, maintain investments or invest in or acquire, without duplication
or aggregation
(i) Eligible Securities;
(ii) eighty percent (80%) or more of the stock or other equity
interests, or all or substantially all of the assets of another Person
(or a line of business or division of such other Person) provided that
such acquisition is a Permitted Acquisition;
(iii) investments existing as of the date hereof and as set forth in
SCHEDULE 7.01(D) and SCHEDULE 7.01(E) attached hereto and loans and
advances listed on SCHEDULE 9.07(iii) attached hereto;
(iv) accounts receivable arising and trade credit granted in the
ordinary course of business and any securities received in satisfaction
or partial satisfaction thereof in connection with accounts of
financially troubled Persons to the extent reasonably necessary in
order to prevent or limit loss;
(v) investments in securities rated BBB+ and Baa1 or better by S&P
and Moody's, respectively;
74
(vi) loans and advances to or cash investments in any other Person
which is less than 80% owned by such Borrower in an aggregate
outstanding amount (to be determined at the time of any such loan,
advance or investment) not to exceed 7.5% of Consolidated Shareholders'
Equity;
(vii) loans and advances to and investments in Subsidiaries of which
more than 80% of the outstanding stock is owned by such Borrower and is
not a Guarantor in an aggregate outstanding amount (to be determined at
the time of any such loan, advance or investment) not to exceed 7.5% of
Consolidated Shareholders' Equity;
(viii) loans, advances and investments in Guarantors; and
(ix) investments made with the common stock of Borrower or, to the
extent not prohibited under Section 9.11, investments made in any
Person with noncash assets of the Borrower or its Subsidiaries so long
as after giving effect to such investment no Default or Event of
Default shall exist hereunder giving effect to any such investment on a
pro forma basis.
9.08 MERGER OR CONSOLIDATION. (a) Consolidate with or merge into any
other Person, or (b) permit any other Person to merge into it; provided,
however, (i) any Significant Subsidiary of a Borrower may merge or transfer all
or substantially all of its assets into or consolidate with any other
Significant Subsidiary or a Borrower, (ii) any Person may merge with a Borrower
or any Significant Subsidiary if such Borrower or such Significant Subsidiary
shall be the survivor thereof and such merger shall not cause, create or result
in the occurrence on any Default or Event of Default hereunder and (iii) any
Significant Subsidiary may merge into any Subsidiary if such Subsidiary shall do
all things pursuant to Section 8.19 to become a Significant Subsidiary.
9.09 RESTRICTED PAYMENTS. In respect of IVAX, declare or pay in respect
of any Four-Quarter Period any dividends (other than those payable solely in
capital stock) or distributions, in reduction of capital or otherwise in respect
of any equity interest, or purchase, redeem or otherwise retire any such equity
interest in excess of 35% of Consolidated Net Income for such Four- Quarter
Period; PROVIDED that no distribution shall be made to the extent such
distribution would result in the occurrence of any Default or Event of Default
hereunder, including without limitation any violation of any of the other
provisions of Article IX hereof.
9.10 CHANGE IN CONTROL. Cause, suffer or permit any Person or group of
Persons other than the owners, if any, of more than 49% of outstanding
securities of IVAX as of the Closing Date having voting rights in the election
of directors, to own or control, directly or indirectly, more than 49% of the
outstanding securities of (on a fully diluted basis and taking into account any
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outstanding securities or contract rights exercisable, exchangeable or
convertible into equity interests) IVAX having voting rights in the election of
directors.
9.11 TRANSACTIONS WITH AFFILIATES. Enter into any transaction after the
date hereof, including, without limitation, the purchase, sale, leasing or
exchange of property, real or personal, or the rendering of any service, with
any Affiliate of such Borrower that is not a Subsidiary, except (a) that such
Persons may render services to such Borrower or its Subsidiaries for
compensation at the same rates generally paid by Persons engaged in the same or
similar businesses for the same or similar services and (b) in the ordinary
course of and pursuant to the reasonable requirements of such Borrower's (or any
Subsidiary's) business consistent with past practice of such Borrower and its
Subsidiaries and upon fair and reasonable terms no less favorable to such
Borrower (or any Subsidiary) than would be obtained in a comparable arm's-length
transaction with a Person not an Affiliate.
9.12 ERISA. With respect to all employee pension benefit plans
maintained by such Borrower or any Subsidiary of such Borrower:
(i) terminate any of such employee pension benefit plans so as to
incur any liability to the Pension Benefit Guaranty Corporation
established pursuant to ERISA or to any other Person exercising similar
duties and functions under any Foreign Benefit Law;
(ii) allow or suffer to exist any prohibited transaction involving
any of such employee pension benefit plans or any trust created
thereunder which would subject such Borrower or a Subsidiary of such
Borrower to a tax or penalty or other liability (A) on prohibited
transactions imposed under Internal Revenue Code Section 4975 or ERISA
or (B) under any Foreign Benefit Law;
(iii) fail to pay to any such employee pension benefit plan any
contribution which it is obligated to pay under the terms of such plan;
(iv) allow or suffer to exist any accumulated funding deficiency,
whether or not waived, with respect to any such employee pension
benefit plan;
(v) allow or suffer to exist any occurrence of a reportable event
or any other event or condition, which presents a material risk of
termination by the Pension Benefit Guaranty Corporation of any such
employee pension benefit plan that is a Single Employer Plan, which
termination could result in any liability (A) to the Pension Benefit
Guaranty Corporation or (B) under any Foreign Benefit Law; or
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(vi) incur any withdrawal liability with respect to any
Multi-employer Plan.
9.13 FISCAL YEAR. Change its Fiscal Year.
9.14 DISSOLUTION, ETC. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with the merger or
consolidation of Subsidiaries into each other or into a Borrower permitted
pursuant to Section 9.08. Nothing contained herein shall prevent the
liquidation, dissolution or winding up of a Subsidiary so long as the assets of
such Subsidiary are transferred to the Borrower, a Significant Subsidiary or a
Subsidiary that shall become a significant Subsidiary pursuant to Section 8.19,
by operation of law or otherwise.
9.15 RATE HEDGING OBLIGATIONS. Incur any Rate Hedging Obligations or
enter into any agreements, arrangements, devices or instruments relating to Rate
Hedging Obligations except (i) those entered into with respect to Indebtedness
of such Borrower or its Significant Subsidiaries, and (ii) those which are
entered into in order to minimize risk associated with transactions arising in
the ordinary course of business and are not entered into for speculative
purpose.
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ARTICLE X
EVENTS OF DEFAULT AND ACCELERATION
10.01 EVENTS OF DEFAULT. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan when and as the same shall be due and
payable whether pursuant to any provision of Article II or Article III
hereof, at maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan, Reimbursement Obligation or of
any fees or other amounts payable to the Lenders or the Administrative
Agent under the Loan Documents within five Business Days of the date on
which the same shall be due and payable; or
(c) if default shall be made in the performance or observance
of any covenant set forth in Section 8.07 which is not cured within
three Business Days after receipt of notice of such default, or if
default shall be made in the performance or observance of any covenant
set forth in Sections 8.06, 8.10, 8.18, 8.19 or 9.04 through 9.15
hereof;
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for 30 or more days after the earlier of receipt of notice of
such default by the Authorized Representative from the Administrative
Agent or the date that the President, Chief Financial Officer, Chief
Operating Officer or Vice President--Finance of either of the Borrowers
becomes aware of such default, or if a default shall be made in the
performance or observance of, or shall occur under, any covenant,
agreement or provision contained in any of the other Loan Documents
(beyond any applicable grace period, if any, contained therein) or in
any instrument or document evidencing or creating any obligation,
guaranty, or Lien in favor of the Administrative Agent or the Lenders
or delivered to the Administrative Agent or the Lenders in connection
with or pursuant to this Agreement or any of the Obligations (beyond
any applicable grace period, if any, contained therein), or if any Loan
Document ceases to be in full force and effect (other than by reason of
any action by the Administrative Agent), or
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if without the written consent of the Administrative Agent, this
Agreement or any other Loan Document shall be disaffirmed by either of
the Borrowers or any Guarantor or shall terminate, be terminable or be
terminated or become void or unenforceable for any reason whatsoever
(other than in accordance with its terms in the absence of default or
by reason of any action by the Administrative Agent); or
(e) if a default shall occur, which is not waived or cured
within any applicable cure period, (i) in the payment of any principal,
interest, premium or other amounts with respect to any Indebtedness
(other than the Loans) of either of the Borrowers or of any Significant
Subsidiary in an amount not less than $10,000,000 in the aggregate
outstanding, or (ii) in the performance, observance or fulfillment of
any term or covenant contained in any agreement or instrument under or
pursuant to which any such Indebtedness may have been issued, created,
assumed, guaranteed or secured by either of the Borrowers or any
Significant Subsidiary, and such default shall continue for more than
the period of grace, if any, therein specified, or if such default
shall permit the holder of any such Indebtedness to accelerate the
maturity thereof; or
(f) if any representation, warranty or other statement of fact
contained herein or any other Loan Document or in any writing,
certificate, report or statement at any time furnished to the
Administrative Agent or any Lender by or on behalf of the Borrowers or
any Guarantor pursuant to or in connection with this Agreement or the
other Loan Documents, or otherwise, shall be false or misleading in any
material respect when given or on the date as of which the facts set
forth therein are stated or certified, as the case may be; or
(g) if either of the Borrowers or any Significant Subsidiary
shall be unable to pay its debts generally as they become due; file a
petition to take advantage of any insolvency statute; make an
assignment for the benefit of its creditors; commence a proceeding for
the appointment of a receiver, trustee, liquidator or conservator of
itself or of the whole or any substantial part of its property; file a
petition or answer seeking reorganization or arrangement or similar
relief under the federal bankruptcy laws or any other applicable law or
statute; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of either of the Borrowers or any Significant
Subsidiary or of the whole or any substantial part of its properties
and such order, judgment or decree continues unstayed and in effect for
a period of sixty (60) days, or approve a petition filed against either
of the Borrowers or any Significant Subsidiary seeking reorganization
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or arrangement or similar relief under the federal bankruptcy laws or
any other applicable law or statute of the United States of America or
any state, which petition is not dismissed within thirty (30) days; or
if, under the provisions of any other law for the relief or aid of
debtors, a court of competent jurisdiction shall assume custody or
control of either of the Borrowers or any Significant Subsidiary or of
the whole or any substantial part of its properties, which control is
not relinquished within sixty (60) days; or if there is commenced
against either of the Borrowers or any Significant Subsidiary any
proceeding or petition seeking reorganization, arrangement or similar
relief under the federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state which proceeding
or petition remains undismissed for a period of thirty (30) days; or if
either of the Borrowers or any Significant Subsidiary takes any action
to indicate its consent to or approval of any such proceeding or
petition; or
(i) if (i) any judgment where the amount not covered by
insurance (or the amount as to which the insurer denies liability) is
in excess of $10,000,000 is rendered against either of the Borrowers or
any Subsidiary, or (ii) there is any attachment, injunction or
execution against any of the Borrowers' or any Subsidiary's properties
for any amount in excess of $10,000,000; and such judgment, attachment,
injunction or execution remains unpaid, unstayed, undischarged,
unbonded or undismissed for a period of thirty (30) days; or
(j) if either of the Borrowers or any Significant Subsidiary
shall, other than in the ordinary course of business (as determined by
past practices), suspend all or any part of its operations material to
the conduct of the business of either of the Borrowers or IVAX and its
Subsidiaries, taken as a whole; or
(k) if (i) either of the Borrowers or any Subsidiary shall
engage in any prohibited transaction (as described in Section 9.14(ii)
hereof), which is not subject to a statutory or administrative
exemption, involving any employee pension benefit plan of either of the
Borrowers or any Subsidiary, (ii) any accumulated funding deficiency
(as referred to in Section 9.14(iv) hereof), whether or not waived,
shall exist with respect to any Single Employer Plan, (iii) a
reportable event (as referred to in Section 9.14(v) hereof) (other than
a reportable event for which the statutory notice requirement to the
Pension Benefit Guaranty Corporation has been waived by regulation)
shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed to administer or to
terminate, any Single Employer Plan, which reportable event or
institution or proceedings is, in the reasonable opinion of the
Required Lenders, likely to result in the termination of such Single
Employer Plan for
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purposes of Title IV of ERISA, and in the case of such a reportable
event, the continuance of such reportable event shall be unremedied for
sixty (60) days after notice of such reportable event pursuant to
Section 4043(a), (c) or (d) of ERISA is given, as the case may be, (iv)
any Single Employer Plan shall terminate for purposes of Title IV of
ERISA, and such termination results in a material liability of either
of the Borrowers or any Subsidiary to such Single Employer Plan or the
Pension Benefit Guaranty Corporation, (v) either of the Borrowers or
any Subsidiary shall withdraw from a Multi- employer Plan for purposes
of Title IV of ERISA, and, as a result of any such withdrawal, either
of the Borrowers or any Subsidiary shall incur withdrawal liability to
such Multi- employer Plan, or (vi) any other event or condition shall
occur or exist with respect to any Single Employer Plan or
Multi-employer Plan; and in each case in clauses (i) through (vi) of
this Section 10.01(k), such event or condition, together with all other
such events or conditions, if any, would subject either of the
Borrowers or any Subsidiary to any tax, penalty or other liabilities
equal to or in excess of $10,000,000, and in each such case the event
or condition is not remedied to the satisfaction of the Required
Lenders within ninety (90) days after the earlier of (i) receipt of
notice of such event or condition by the Authorized Representative from
the Administrative Agent or (ii) either of the Borrowers becomes aware
of such event or condition; notwithstanding the foregoing, if either of
the Borrowers or any Subsidiary maintains an employee pension benefit
plan subject to Title IV of ERISA under which at any time the present
value of vested accrued benefits exceeds the then current value of the
assets of such plan allocable to such benefits, the existence of such
excess shall not constitute an Event of Default so long as no
accumulated funding deficiency exists that could subject either of the
Borrowers or any Subsidiary to any tax under Internal Revenue Code
Section 4971 with respect to such plan; or
(l) if either of the Borrowers or any Significant
Subsidiary shall breach any of the terms or conditions of any agreement
under which any Rate Hedging Obligation in a notional amount in excess
of $10,000,000 permitted pursuant to Section 9.15 is created and such
breach shall continue beyond any grace period, if any, relating thereto
pursuant to the terms of such Obligation, or either of the Borrowers or
any Significant Subsidiary shall disaffirm or seek to disaffirm any
such agreement or any of its obligations thereunder; or
(m) if the Senior Notes have not been paid in full by April 1,
1997;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
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(A) either or both of the following actions may be taken: (i)
the Administrative Agent, with the consent of the Required Lenders,
may, and at the direction of the Required Lenders shall, declare any
obligation of the Lenders to make further Loans or issue Letters of
Credit terminated, whereupon the obligation of each Lender to make
further Loans or issue Letters of Credit, hereunder shall terminate
immediately, and (ii) the Administrative Agent shall at the direction
of the Required Lenders, at their option, declare by notice to the
Borrowers any or all of the Obligations to be immediately due and
payable, and the same, including all interest accrued thereon and all
other obligations of the Borrowers to the Administrative Agent and the
Lenders, shall forthwith become immediately due and payable without
presentment, demand, protest, notice or other formality of any kind,
all of which are hereby expressly waived, anything contained herein or
in any instrument evidencing the Obligations to the contrary
notwithstanding; PROVIDED, however, that notwithstanding the above, if
there shall occur an Event of Default under clause (g) or (h) above,
then the obligation of the Lenders to lend and issue Letters of Credit
hereunder shall automatically terminate and any and all of the
Obligations shall be immediately due and payable without the necessity
of any action by the Administrative Agent or the Required Lenders or
notice to the Administrative Agent or the Lenders;
(B) The Borrowers shall, upon demand of the Administrative
Agent or the Required Lenders, deposit cash with the Administrative
Agent in accordance with the LC Account Agreement in an amount equal to
the amount of any Letters of Credit remaining undrawn or unpaid, as
collateral security for the repayment of any future drawings or
payments under such Letters of Credit and the Borrowers shall forthwith
deposit and pay such amounts and such amounts shall be held by the
Administrative Agent pursuant to the terms of the applicable
Application and Agreement for Letter of Credit;
(C) the Administrative Agent and the Lenders shall have all of
the rights and remedies available under the Loan Documents or under any
applicable law. In addition, from and after the occurrence of a Default
or Event of Default the indebtedness evidenced by the Notes shall bear
interest at the Default Rate and the Unused Fee shall be 20 basis
points.
10.02 ADMINISTRATIVE AGENT TO ACT. In case any one or more Events of
Default shall occur and not have been waived, the Administrative Agent may, and
at the direction of the Required Lenders shall, proceed to protect and enforce
their rights or remedies either by suit in equity or by action at law, or both,
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whether for the specific performance of any covenant, agreement or other
provision contained herein or in any other Loan Document, or to enforce the
payment of the Obligations or any other legal or equitable right or remedy.
10.03 CUMULATIVE RIGHTS. No right or remedy herein conferred upon the
Lenders or the Administrative Agent is intended to be exclusive of any other
rights or remedies contained herein or in any other Loan Document, and every
such right or remedy shall be cumulative and shall be in addition to every other
such right or remedy contained herein and therein or now or hereafter existing
at law or in equity or by statute, or otherwise.
10.04 NO WAIVER. No course of dealing between the Borrowers and any
Lender or the Administrative Agent or any failure or delay on the part of any
Lender or the Administrative Agent in exercising any rights or remedies under
any Loan Document or otherwise available to it shall operate as a waiver of any
rights or remedies and no single or partial exercise of any rights or remedies
shall operate as a waiver or preclude the exercise of any other rights or
remedies hereunder or of the same right or remedy on a future occasion.
10.05 DEFAULT. The Administrative Agent and the Lenders shall have no
right to accelerate any of the Loans upon, or to institute any action or
proceeding before any court to realize upon collateral as a result of, the
occurrence of any Default which shall not also constitute an Event of Default;
PROVIDED, however, nothing contained in this sentence shall in any respect
impair or adversely affect the right, power and authority of the Administrative
Agent and the Lenders (i) to take any action expressly required or permitted to
be taken under the Loan Documents upon the occurrence of any Default (and
including any action or proceeding which the Administrative Agent may determine
to be necessary or appropriate in furtherance of any such expressly authorized
action) and (ii) to take any action provided under the Loan Documents or
otherwise available by statute, at law or in equity upon the occurrence of any
Default.
10.06 ALLOCATION OF PROCEEDS. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
Article X hereof, all payments received by the Administrative Agent under the
Loan Documents, in respect of any principal of or interest on the Obligations or
any other amounts payable by the Borrowers hereunder shall be applied by the
Administrative Agent in the following order:
(i) amounts due to the Lenders pursuant to Sections 2.10, 3.03,
8.13, 12.05 and 12.11 hereof;
(ii) amounts due to (A) each Issuer pursuant to Section 3.04
hereof, and (B) the Administrative Agent pursuant to Section 11.11 hereof;
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(iii) payments of interest on Loans, to be applied for the ratable
benefit of the Lenders;
(iv) payments of principal on Loans, to be applied for the ratable
benefit of the Lenders;
(v) payment of cash amounts to the Administrative Agent in respect
of Outstanding Letters of Credit pursuant to Section 10.01(B) hereof;
(vi) payment of Obligations owed a Lender or Lenders pursuant to
Swap Agreements on a pro rata basis according to amounts owed;
(vii) payments of all other amounts due under this Agreement, if
any, to be applied for the ratable benefit of the Lenders; and
(viii) any surplus remaining after application as provided for
herein, to the Borrowers or otherwise as may be required by applicable law.
With respect to the books of any Lender, such Lender may apply the
payments received by it against obligations owed it hereunder as it may elect.
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ARTICLE XI
THE AGENTS
11.01 APPOINTMENT. Each Lender hereby irrevocably designates and
appoints NationsBank as the Administrative Agent of the Lenders under this
Agreement, and each of the Lenders hereby irrevocably authorizes the
Administrative Agent as the agent for such Lender, to take such action on its
behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers as are expressly delegated to the Administrative Agent
by the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. The Administrative Agent shall not have any
duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any of the Lenders, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or otherwise exist against the Administrative Agent.
11.02 ATTORNEYS-IN-FACT. The Administrative Agent may execute any of
its duties under this Agreement by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agents shall not be responsible for the negligence, gross negligence
or willful misconduct of any agents or attorneys-in-fact selected by either of
them with reasonable care.
11.03 LIMITATION ON LIABILITY. The Administrative Agent nor any of its
officers, directors, employees, agents or attorneys-in-fact shall be liable to
the Lenders for any action lawfully taken or omitted to be taken by it or them
under or in connection with this Agreement except for its or their own gross
negligence or willful misconduct. The Administrative Agent nor any of its
affiliates shall be responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Borrowers or any
of their Subsidiaries, or any officer or representative thereof contained in
this Agreement or in any of the other Loan Documents, or in any certificate,
report, statement or other document referred to or provided for in or received
by the Administrative Agent under or in connection with this Agreement, or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any of the other Loan Documents, or for any failure of the
Borrowers to perform their obligations thereunder, or for any recitals,
statements, representations or warranties made, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any collateral. The
Administrative Agent shall not be under any obligation to any of the Lenders to
ascertain or to inquire as to the observance or performance of any of the terms,
covenants or conditions of this Agreement or any of the other Loan Documents on
the part of the Borrowers or to inspect the properties, books or records of the
Borrowers or their Subsidiaries.
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11.04 RELIANCE. The Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing, resolution, notice,
consent certificate, affidavit, letter, cablegram, telegram, telecopy or telex
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrowers), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent may deem and
treat the payee of any Note as the owner thereof for all purposes unless an
Assignment shall have been filed with and accepted by the Administrative Agent.
The Administrative Agent shall be fully justified in failing or refusing to take
any action under this Agreement unless it shall first receive advice or
concurrence of the Lenders or the Required Lenders as provided in this Agreement
or it shall first be indemnified to its satisfaction by the Lenders against any
and all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
in accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all present and future holders of the Notes.
11.05 NOTICE OF DEFAULT. Neither Agent shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Agent has received notice from a Lender, the Authorized
Representatives or the Borrowers referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall promptly give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders;
provided that, unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such Event
of Default as it shall deem advisable in the best interests of the Lenders.
11.06 NO REPRESENTATIONS. Each Lender expressly acknowledges that
neither of the Administrative Agent nor any of its affiliates has made any
representations or warranties to it and that no act by the Administrative Agent
hereafter taken, including any review of the affairs of the Borrowers or any of
their Subsidiaries, shall be deemed to constitute any representation or warranty
by the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed
86
appropriate, made its own appraisal of and investigation into the financial
condition, creditworthiness, affairs, status and nature of the Borrowers and
their Subsidiaries and made its own decision to enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and to make such investigation as it deems necessary to inform
itself as to the status and affairs, financial or otherwise, of the Borrowers
and their Subsidiaries. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Administrative Agent
hereunder, the Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the affairs,
financial condition or business of the Borrowers or any of their Subsidiaries
which may come into the possession of the Administrative Agent or any of its
affiliates.
11.07 INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrowers and without limiting any obligations of the Borrowers or any
Subsidiary so to do), ratably according to the respective principal amount of
the Notes held by it (or, if no Notes are outstanding, ratably in accordance
with its Applicable Commitment Percentages as then in effect) from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may at any time (including without limitation at any time
following the payment of the Notes) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement or any other document contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent. The agreements in this subsection shall
survive the payment of any of the Obligations and the termination of this
Agreement.
11.08 LENDER. The Administrative Agent and its affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
the Borrowers and their Subsidiaries as though it was not the Administrative
Agent hereunder. With respect to its Loans made or renewed by it and any Note
issued to it, the Administrative Agent shall have the same rights and powers
under this Agreement as any Lender and may exercise the same as though it were
not an Agent, and the terms "Lender" and "Lenders" shall,
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unless the context otherwise indicates, include each Agent in its individual
capacity.
11.09 RESIGNATION. If the Administrative Agent shall resign as
Administrative Agent under this Agreement then the Required Lenders may appoint,
with the consent, so long as there shall not have occurred and be continuing a
Default or Event of Default, of the Borrowers, which consent shall not be
unreasonably withheld, a successor Administrative Agent for the Lenders, which
successor Administrative Agent shall be a commercial bank organized or
authorized to do business under the laws of the United States or any state
thereof, having a combined surplus and capital of not less than $500,000,000,
whereupon such successor Administrative Agent shall succeed to the rights,
powers and duties of the former Administrative Agent and the obligations of the
former Administrative Agent shall be terminated and canceled, without any other
or further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement; PROVIDED, however, that the former Administrative
Agent's resignation shall not become effective until such successor
Administrative Agent has been appointed and has succeeded of record to all
right, title and interest in any collateral held by the Administrative Agent;
PROVIDED, FURTHER, that if the Required Lenders and, if applicable, the
Borrowers cannot agree as to a successor Administrative Agent within ninety (90)
days after such resignation, the Administrative Agent shall appoint a successor
Administrative Agent which satisfies the criteria set forth above in this
Section 11.09 for a successor Administrative Agent and the parties hereto agree
to execute whatever documents are necessary to effect such action under this
Agreement or any other document executed pursuant to this Agreement; PROVIDED,
however that in such event all provisions of this Agreement and the Loan
Documents, shall remain in full force and effect. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article XI shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement.
11.10 SHARING OF PAYMENTS, ETC. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, set-off, counterclaim or
otherwise, obtain payment with respect to its Obligations (other than pursuant
to Article IV) which results in its receiving more than its pro rata share of
the aggregate payments with respect to all of the Obligations (other than any
payment pursuant to Article IV), then (A) such Lender shall be deemed to have
simultaneously purchased from the other Lenders a share in their Obligations so
that the amount of the Obligations held by each of the Lenders shall be pro rata
and (B) such other adjustments shall be made from time to time as shall be
equitable to insure that the Lenders share such payments ratably; PROVIDED,
however, that for purposes of this Section 11.10 the term "pro rata" shall be
determined with respect to both the Revolving Credit Commitment of each Lender
and to the Total Revolving Credit
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Commitments after subtraction in each case of amounts, if any, by which any such
Lender has not funded its share of the outstanding Loans and Reimbursement
Obligations. If all or any portion of any such excess payment is thereafter
recovered from the Lender which received the same, the purchase provided in this
Section 11.10 shall be rescinded to the extent of such recovery, without
interest. The Borrowers expressly consent to the foregoing arrangements and
agree that each Lender so purchasing a portion of the other Lenders' Obligations
may exercise all rights of payment (including, without limitation, all rights of
set-off, banker's lien or counterclaim) with respect to such portion as fully as
if such Lender were the direct holder of such portion.
11.11 ADMINISTRATIVE FEES. The Borrowers shall pay to the
Administrative Agent an annual administrative fee in such amount as the
Borrowers and the Administrative Agent have agreed, such fee to be paid annually
in advance beginning on the Closing Date.
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ARTICLE XII
MISCELLANEOUS
12.01 ASSIGNMENTS AND PARTICIPATIONS.
(a) At any time after the Closing Date each Lender may, with the prior
consent of the Administrative Agent, the Syndication Agent and the Borrowers,
which consents shall not be unreasonably withheld (it being understood that
consent may be withheld by the Borrowers if such assignment would subject the
Borrowers to the payment of any additional amounts pursuant to the provisions of
Article IV hereof), assign to one or more banks or financial institutions all or
a portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of the Notes payable to its order); PROVIDED, that
(i) each such assignment shall be of a constant, and not a varying, percentage
of all of the assigning Lender's rights and obligations (including Loans and
Participations) under this Agreement, (ii) for each assignment involving the
issuance and transfer of Notes, the assigning Lender shall execute an Assignment
and Acceptance and the Borrowers hereby consent to execute replacement Notes to
give effect to the assignment, (iii) the minimum Revolving Credit Commitment
which shall be assigned is $5,000,000 (together with which the assigning
Lender's applicable portion of Participations and the Letter of Credit
Commitment shall also be assigned) in the case of Lenders existing on the
Closing Date and $10,000,000 (together with which the assigning Lender's
applicable portion of Participations and the Letter of Credit Commitment shall
also be assigned) in the case of any financial institution becoming a Lender
after the Closing Date and (iv) such assignee shall have an office located in
the United States. Upon such execution, delivery, approval and acceptance, from
and after the effective date specified in each Assignment and Acceptance, (x)
the assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder or under such Notes have been assigned or negotiated
to it pursuant to such Assignment and Acceptance have the rights and obligations
of a Lender hereunder and a holder of such Notes and (y) the assignor thereunder
shall, to the extent that rights and obligations hereunder or under such Notes
have been assigned or negotiated by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under
this Agreement. No assignee shall have the right to further assign its rights
and obligations pursuant to this Section 12.01. Any Lender who makes an
assignment shall pay to the Administrative Agent a one-time administrative fee
of $4,000.00 which fee shall not be reimbursed by the Borrowers.
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) the assignment made
under such Assignment and Acceptance is made under such Assignment and
Acceptance without
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recourse; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrowers or any Subsidiary or the performance or observance by the Borrowers or
any Subsidiary of any of their obligations under any Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements delivered pursuant to Section 7.01 or Section 8.01, as the
case may be, and such other Loan Documents and other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee appoints and
authorizes the Administrative Agent to take such action as agents on its behalf
and to exercise such powers under this Agreement, the Notes and the other Loan
Documents as are delegated to the Administrative Agent by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto; and
(vi) such assignee agrees that it will perform in accordance with their terms
all of the obligations which by the terms of this Agreement are required to be
performed by it as a Lender and a holder of such Notes.
(c) The Administrative Agent shall maintain at its address referred to
herein a copy of each Assignment and Acceptance delivered to and accepted by it.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender, the Administrative Agent shall give prompt notice thereof to
Borrowers.
(e) Each Lender may sell participations at its expense, and subject to
the prior written approval by Borrowers of such participant, which approval
shall not be unreasonably withheld, to one or more banks or other entities as to
all or a portion of its rights and obligations under this Agreement; PROVIDED,
that (i) such Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall remain the holder
of any Note issued to it for the purpose of this Agreement, (iv) such
participations shall be in a minimum amount of $5,000,000 and shall include an
allocable portion of such Lender's Participation, and (v) Borrowers, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and with regard to any and all payments to be
made under this Agreement; PROVIDED, that the participation agreement between a
Lender and its participants may provide that such Lender will obtain the
approval
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of such participant prior to such Lender's agreeing to any amendment or waiver
of any provisions of this Agreement which would (A) extend the maturity of any
scheduled payment of the Obligations, (B) reduce the interest rates, unused fee
or Letter of Credit fee hereunder, (C) increase or extend the Revolving Credit
Termination Date or the Revolving Credit Commitment of the Lender granting the
participation or (D) release any Guarantor, and (vi) the sale of any such
participations which require Borrowers to file a registration statement with the
United States Securities and Exchange Commission or under the securities
regulations or laws of any state shall not be permitted.
(f) So long as no Default or Event of Default exist hereunder, the
Borrowers may, with the prior written consent of the Administrative Agent, cause
any Lender to be replaced by a financial institution not a party to this
Agreement by (i) delivering to the Administrative Agent an Assignment and
Acceptance executed by such financial institution whereby such financial
institution accepts assignment of the Revolving Credit Commitment of the Lender
to be replaced and (ii) causing there to be delivered to the Lender an amount
equal to the Applicable Commitment Percentage of the Revolving Credit Debit
Balance of the Lender to be replaced. Upon receipt by the Lender to be replaced
of notice from the Administrative Agent of fulfillment of the conditions set
forth above, the Lender to be replaced agrees to execute the Assignment and
Acceptance and upon receipt of payment of all Obligations owing to it, together
with any amounts payable pursuant to Section 4.04 as a result of such required
assignment shall deliver to the Administrative Agent its Notes marked paid all
in the manner set forth in Section 12.01(a); provided, however, that the
Borrowers shall be responsible for the payment of the administrative fee
described therein.
(g) Notwithstanding anything to the contrary contained herein or in any
of the other Loan Documents, any Lender may assign all or any portion of its
rights and obligations under the Loan Documents and the Notes to any affiliate
of such Lender, and any Lender may pledge all or any portion of its interest
under the Loan Documents and the Notes to any Federal Reserve Bank as security
for obligations of such Lender to the Board, without the consent of the
Borrower, the Agent or any other Lender and without the payment of the
administrative fee referred to in Section 12.01(a). Any Lender making an
assignment pursuant to this subsection shall give notice of such assignment to
the Borrowers and the Administrative Agent.
12.02 NOTICES. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective on the day on which delivered to
such party (against receipt therefor) at the address set forth below or such
other address as such party shall specify to the other parties in writing (or,
in the case of notice by telecopy, telegram or telex (where the receipt of such
message is verified by return), when received at such telecopy or telex number
as may from time to time be specified in written or verbal
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notice to the other parties hereto or otherwise received), or if sent prepaid by
certified or registered mail return receipt requested on the third Business Day
after the day on which mailed, addressed to such party at said address:
(a) if to the Borrowers:
IVAX Corporation
4400 Biscayne Boulevard, 12th Floor
Miami, Florida 33137-3227
Attention: General Counsel
Telephone: (305) 575-6037
Telefacsimile: (305) 575-6048
(b) if to the Administrative Agent:
NationsBank, N.A.
100 S.E. Second Street, 14th Floor
Miami, Florida 33131
Attention: Corporate Finance
Telephone: 305-533-2421
Telefacsimile: 305-533-2437
with a copy to:
NationsBank, N.A.
Independence Center, 15th Floor
Charlotte, North Carolina 28255
Attention: Tonya Sloan,
Corporate Credit Support - Agency
Services
Telephone: 704-388-3916
Telefacsimile: 704-386-9923
(c) if to the Syndication Agent:
BA Securities, Inc.
335 Madison Avenue, 5th Floor
New York, New York 10017
Attention: Robert Karen
Telephone: (212) 503-7945
Telefacsimile: (212) 503-7355
(d) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance.
12.03 SETOFF. The Borrowers agrees that the Administrative Agent and
each Lender shall have a lien for all the Obligations of the Borrowers upon all
deposits or deposit accounts, of any kind, or any interest in any deposits or
deposit accounts thereof, now or
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hereafter pledged, mortgaged, transferred or assigned to the Administrative
Agent or such Lender or otherwise in the possession or control of the
Administrative Agent or such Lender (other than for safekeeping) for any purpose
for the account or benefit of the Borrowers and including any balance of any
deposit account or of any credit of the Borrowers with the Administrative Agent
or such Lender, whether now existing or hereafter established, hereby
authorizing the Administrative Agent and each Lender at any time or times with
or without prior notice to apply such balances or any part thereof to such of
the Obligations of the Borrowers to the Lenders then past due and in such
amounts as they may elect, and whether or not the collateral or the
responsibility of other Persons primarily, secondarily or otherwise liable may
be deemed adequate. For the purposes of this paragraph, all remittances and
property shall be deemed to be in the possession of the Administrative Agent or
such Lender as soon as the same may be put in transit to it by mail or carrier
or by other bailee. Notwithstanding the foregoing, the amount of set off with
respect to deposits of NHL shall be limited to the amount set forth in Section
5.01.
12.04 SURVIVAL. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the expiration of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any of Obligations remain outstanding or any Lender has any
commitment hereunder or the Borrowers have continuing obligations hereunder
unless otherwise provided herein. Whenever in this Agreement, any of the parties
hereto is referred to, such reference shall be deemed to include the successors
and permitted assigns of such party and all covenants, provisions and agreements
by or on behalf of the Borrowers which are contained in this Agreement, the
Notes and the other Loan Documents shall inure to the benefit of the successors
and permitted assigns of the Lenders or any of them. Neither Borrower shall
assign any of its rights or obligations hereunder without the consent of all
Lenders.
12.05 EXPENSES. The Borrowers agree (a) to pay or reimburse the
Administrative Agent for all of its reasonable and customary out-of-pocket costs
and expenses incurred in connection with the preparation, negotiation and
execution of, and any amendment, supplement or modification to, this Agreement
or any of the other Loan Documents (including travel expenses relating to
closing), and the consummation of the transactions contemplated hereby and
thereby up to the amount previously agreed to, including, without limitation,
(x) the reasonable and customary fees and disbursements of counsel to the
Administrative Agent, which shall not exceed the amount previously agreed to,
(y) the reasonable costs of in-house legal services incurred by the Syndication
Agent and (z) the reasonable out-of-pocket fees and expenses relating to
syndication and closing of the transaction provided herein of up to the amount
previously agreed to; (b) to pay or reimburse the Administrative
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Agent and the Lenders for all their reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement and the other Loan Documents, including without limitation, the
reasonable fees and disbursements of their counsel and any payments in
indemnification or otherwise payable by the Lenders to the Administrative Agent
pursuant to the Loan Documents, (c) to pay, indemnify and hold the
Administrative Agent and the Lenders harmless from any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
failure to pay or delay in paying, documentary, stamp, excise and other similar
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of this Agreement or any other Loan Documents,
or consummation of any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement or any other Loan Documents,
and (d) to pay, indemnify, and hold the Administrative Agent and the Lenders
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement and the other Loan
Documents or in any respect relating to the transactions contemplated hereby or
thereby, (all the foregoing, collectively, the "indemnified liabilities");
PROVIDED, HOWEVER, that the Borrowers shall have no obligation hereunder with
respect to indemnified liabilities arising from (i) the willful misconduct or
gross negligence of or the willful breach of the Loan Documents by the party
seeking indemnification, (ii) legal proceedings commenced against the
Administrative Agent or any Lender by any security holder or creditor thereof
arising out of and based upon rights afforded any such security holder or
creditor solely in its capacity as such, (iii) any taxes imposed upon the
Administrative Agent or any Lender other than the documentary, stamp, excise and
similar taxes described in clause (c) above or any tax resulting from any
Regulatory Change, which tax would be payable to Lenders by Borrowers pursuant
to Article IV hereof, (iv) taxes imposed and costs and expenses incurred as a
result of a transfer or assignment of any Note, participation or assignment of a
portion of its rights or (v) any taxes imposed upon or any costs or expenses
incurred by any transferee of any Note. The agreements in this subsection shall
survive repayment of the Notes and all other Obligations hereunder.
12.06 AMENDMENTS. No amendment, modification or waiver of any provision
of this Agreement or any of the Loan Documents and no consent by the Lenders to
any departure therefrom by the Borrowers shall be effective unless such
amendment, modification or waiver shall be in writing and signed by the Required
Lenders or by the Administrative Agent with the written consent of the Required
Lenders, and the same shall then be effective only for the period and on the
conditions and for the specific instances and purposes specified in such
writing; PROVIDED, however, that, no such amendment, modification or waiver
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(i) which changes, extends or waives any provision of Section
11.10 or this Section 12.06, the amount of or the due date of any
scheduled installment of or the rate of interest payable on any
Obligation, changes the definition of Required Lenders, which permits
an assignment by Borrowers of their Obligations hereunder, which
reduces the required consent of Lenders provided hereunder (other than
as provided in Section 4.05 hereof), which increases, decreases or
extends the Revolving Credit Commitment of any Lender or which
increases or extends the Letter of Credit Facility or which waives any
condition to the making of any Loan or issuing any Letter of Credit
shall be effective unless in writing and signed by each of the Lenders;
PROVIDED, however, the Required Lenders may in their sole discretion
waive any Default or Event of Default (other than any Default or Event
of Default under Section 10.01(a), (b), (g) or (h));
(ii) which releases a Guarantor shall be effective unless with the
written consent of each of the Lenders; or
(iii) which affects the rights, privileges, immunities or
indemnities of the Administrative Agent shall be effective unless in
writing and signed by the Administrative Agent.
Notwithstanding any provision of the other Loan Documents to the contrary, as
between the Administrative Agent and the Lenders, execution by the
Administrative Agent shall not be deemed conclusive evidence that the
Administrative Agent has obtained the written consent of the Required Lenders.
No notice to or demand on the Borrowers in any case shall entitle the Borrowers
to any other or further notice or demand in similar or other circumstances,
except as otherwise expressly provided herein. No delay or omission on any
Lender's or either Agent's part in exercising any right, remedy or option shall
operate as a waiver of such or any other right, remedy or option or of any
Default or Event of Default.
12.07 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart.
12.08 WAIVERS BY BORROWERS. In any litigation in any court with respect
to, in connection with, or arising out of this Agreement, the Loans, any of the
Notes, any of the other Loan Documents, the Obligations, or any instrument or
document delivered pursuant to this Agreement or the other Loan Documents, or
the validity, protection, interpretation, collection or enforcement thereof, or
any other claim or dispute howsoever arising between the Borrowers and the
Lenders or the Administrative Agent, the Borrowers and each Lender and the
Administrative Agent hereby
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waives, to the extent permitted by applicable law, trial by jury in connection
with any such litigation.
12.09 TERMINATION. The termination of this Agreement shall not affect
any rights of the Borrowers, the Lenders or the Agents or any obligation of the
Borrowers, the Lenders or the Agents, arising prior to the effective date of
such termination, and the provisions hereof shall continue to be fully operative
until all transactions entered into or rights created or obligations incurred
prior to such termination have been fully disposed of, concluded or liquidated
and the Obligations arising prior to or after such termination have been
irrevocably paid in full. The rights granted to the Administrative Agent for the
benefit of the Lenders hereunder and under the other Loan Documents shall
continue in full force and effect, notwithstanding the termination of this
Agreement, until all of the Obligations have been paid in full after the
termination hereof (other than Obligations in the nature of continuing
indemnities or expense reimbursement obligations not yet due and payable) or the
Borrowers have furnished the Lenders and the Administrative Agent with an
indemnification satisfactory to the Administrative Agent and each Lender with
respect thereto. All representations, warranties, covenants, waivers and
agreements contained herein shall survive termination hereof until payment in
full of the Obligations unless otherwise provided herein. Notwithstanding the
foregoing, if after receipt of any payment of all or any part of the
Obligations, any Lender is for any reason compelled to surrender such payment to
any Person because such payment is determined to be void or voidable as a
preference, impermissible setoff, a diversion of trust funds or for any other
reason, this Agreement shall continue in full force and the Borrowers shall be
liable to, and shall indemnify and hold such Lender harmless for, the amount of
such payment surrendered until such Lender shall have been finally and
irrevocably paid in full. The provisions of the foregoing sentence shall be and
remain effective notwithstanding any contrary action which may have been taken
by the Lenders in reliance upon such payment, and any such contrary action so
taken shall be without prejudice to the Lenders' rights under this Agreement and
shall be deemed to have been conditioned upon such payment having become final
and irrevocable.
12.10 GOVERNING LAW. (A) ALL DOCUMENTS EXECUTED PURSUANT TO THE
TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING, WITHOUT LIMITATION, THIS AGREEMENT
AND EACH OF THE LOAN DOCUMENTS SHALL BE DEEMED TO BE CONTRACTS MADE UNDER, AND
FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS AND
JUDICIAL DECISIONS OF THE STATE OF FLORIDA. THE BORROWERS HEREBY SUBMIT TO THE
JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF FLORIDA FOR THE
PURPOSES OF RESOLVING DISPUTES HEREUNDER OR FOR THE PURPOSES OF COLLECTION.
(B) PURSUANT TO THE ABOVE SUBMISSION TO JURISDICTION, NHL AGREES
THAT SERVICE OF ALL PLEADINGS, COMPLAINTS, WRITS, PROCESS OR SUMMONSES IN ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH
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FORUM MAY BE MADE UPON ARMANDO TABERNILLA, THE GENERAL COUNSEL OF IVAX
("TABERNILLA") AT THE ADDRESS PROVIDED FOR NOTICES TO IVAX HEREUNDER (THE
"PROCESS AGENT"), AND NHL HEREBY IRREVOCABLY APPOINTS THE PROCESS AGENT ITS
AGENT AND TRUE AND LAWFUL ATTORNEY- IN-FACT IN ITS NAME, PLACE AND STEAD TO
ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SUCH SERVICE BROUGHT IN ANY SUCH COURT. NHL
AGREES AND CONSENTS THAT ANY SUCH SERVICE UPON NHL SHALL BE TAKEN AND HELD TO BE
VALID PERSONAL SERVICE UPON NHL WHETHER NHL SHALL THEN BE DOING, OR ANY TIME
SHALL HAVE DONE, BUSINESS WITHIN THE STATE OF FLORIDA, THAT THE FAILURE OF THE
PROCESS AGENT TO ACTUALLY GIVE NOTICE OF ANY SUCH SERVICE TO NHL SHALL NOT
IMPAIR OR AFFECT THE VALIDITY OF SUCH SERVICE OR OF ANY JUDGMENT BASED THEREON,
AND NHL WAIVES ALL CLAIM OF ERROR BY REASON OF ANY SUCH SERVICE. ANY NOTICE,
PROCESS, PLEADINGS OR OTHER PAPERS SERVED UPON THE PROCESS AGENT FOR NHL SHALL,
AT THE SAME TIME, BE SENT BY AN AUTHORIZED METHOD DESCRIBED ABOVE FOR THE GIVING
OF NOTICE HEREUNDER TO NHL AT ITS ADDRESS SET FORTH ABOVE. NHL HEREBY FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS IN ANY SUIT, ACTION OR PROCEEDING
IN SAID COURTS BY THE MAILING THEREOF BY THE AGENT BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO NHL AT THE ADDRESS FOR GUARANTOR SPECIFIED IN SECTION
12.02. NHL ACKNOWLEDGES THAT, IN APPOINTING SAID AGENT, IT IS ITS INTENTION THAT
SUCH SERVICE SHALL BE DEEMED TO SATISFY THE REQUIREMENTS OF ALL LAWS AND RULES
OF THE CHIEF EXECUTIVE OFFICE GOVERNING SERVICE OF PROCESS, WHETHER NOW OR
HEREAFTER IN EFFECT. NHL FURTHER AGREES THAT IN THE EVENT TABERNILLA IS NO
LONGER GENERAL COUNSEL OF IVAX, THEN IVAX SHALL PROMPTLY DESIGNATE A REPLACEMENT
PROCESS AGENT FOR ALL PURPOSES OF THIS AGREEMENT.
12.11 INDEMNIFICATION. (a) In consideration of the execution and
delivery of this Agreement by the Administrative Agent and each Lender and the
extension of the Revolving Credit Commitments, the Borrowers hereby indemnify,
exonerate and hold each Agent and each Lender and each of their respective
officers, directors, employees and agents (collectively, the "Indemnified
Parties") free and harmless from and against any and all actions, causes of
action, suits, losses, costs, liabilities and damages, and expenses incurred in
connection therewith (irrespective of whether any such Indemnified Party is a
party to the action for which indemnification hereunder is sought), including
reasonable attorneys' fees and disbursements (collectively, the "Indemnified
Liabilities"), incurred by the Indemnified Parties or any of them as a result
of, or arising out of, or relating to any transaction financed or to be financed
in whole or in part, directly or indirectly, with the proceeds of any Loan or
supported by any Letter of Credit, except for any such Indemnified Liabilities
arising for the account of a particular Indemnified Party by reason of the bad
faith, gross negligence or willful misconduct of, or willful breach of the Loan
Documents by, such Indemnified Party or an officer, co-officer, director,
co-director, employee, co- employee, agent or co-agent of such Indemnified Party
or a transfer or disposition of a Note by an Indemnified Party, and if and to
the extent that the foregoing undertaking may be unenforceable for any
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reason, the Borrowers hereby agree to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
(b) If a claim is to be made by a party entitled to indemnification under this
Section 12.11 or Section 8.13 against the indemnifying party, the party entitled
to such indemnification shall give written notice to the indemnifying party
promptly after the party entitled to indemnification receives actual notice of
any claim, action, suit, loss, cost, liability, damage or expense incurred or
instituted for which the indemnification is sought. If requested by either of
the Borrowers in writing, and so long as no Default or Event of Default shall
have occurred and be continuing, such indemnitee shall contest the validity,
applicability and/or amount of such suit, action, or cause of action to the
extent such contest may be conducted in good faith on legally supportable
grounds. If any lawsuit or enforcement action is filed against any party
entitled to the benefit of indemnity under this Section 12.11, written notice
thereof shall be given to the indemnifying party as soon as practicable (and in
any event within 15 days after the service of the citation or summons).
Notwithstanding the foregoing, the failure so to notify the indemnifying party
as provided in this Section 12.11 will relieve indemnifying party from liability
hereunder only if and to the extent that such failure results in the forfeiture
by the indemnifying party of substantive rights and defenses. After such notice,
if the indemnifying party shall acknowledge in writing to the indemnified party
that the indemnifying party shall be obligated under the terms of its indemnity
hereunder in connection with such lawsuit or action, then, so long as no Default
or Event of Default shall occur and be continuing, the indemnifying party shall
be entitled, if it so elects, to take control of the defense and investigation
of such lawsuit or action and to employ and engage counsel of its own choice
reasonably acceptable to the indemnified party to handle and defend the same, at
the indemnifying party's cost, risk and expense, PROVIDED, HOWEVER, that the
indemnifying party and its counsel shall proceed with diligence and in good
faith with respect thereto and the indemnifying party shall not enter into any
settlement of any claim without the consent of the party entitled to
indemnification if such settlement shall admit liability by the indemnified
party. If (i) the engagement of such counsel by the indemnifying party would
present a conflict of interest which would prevent such counsel from effectively
defending such action on behalf of the indemnified party, (ii) the defendants
in, or targets of, any such lawsuit or action include both the indemnified party
and indemnifying party, and the indemnified party reasonably concludes that
there may be legal defenses available to it that are different from or in
addition to those available to the indemnifying party, (iii) the indemnifying
party fails to assume the defense of the lawsuit or action or to employ counsel
reasonably satisfactory to such indemnified party, in either case in a timely
manner, or (iv) a Default or Event of Default shall occur and be continuing,
then such indemnified party may employ
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separate counsel to represent or defend it in any such action or proceeding and
the indemnifying party will pay the fees and disbursements of such counsel,
provided, however, that each indemnitee shall endeavor, but shall not be
obligated, in connection with any matter covered by this Section 12.11 which
also involves other indemnities, to use reasonable efforts to avoid unnecessary
duplication of efforts by counsel for all indemnities and provided further, that
in no event shall the Borrowers be liable for the fees and expenses of more than
one separate firm for the indemnified parties. The indemnified party shall
cooperate (with all out of pocket costs and expenses associated therewith to be
paid by the indemnifying party) in all reasonable respects with the indemnifying
party and such attorneys in the investigation, trial and defense of such lawsuit
or action and any appeal arising therefrom; provided, however, that the
indemnified party may, at its own cost (except as set forth in, and in
accordance with, the foregoing sentence), participate in the investigation,
trial and defense of such lawsuit or action and any appeal arising therefrom. If
the indemnifying party has acknowledged to the indemnified party its obligation
to indemnify hereunder, the indemnified party, so long as no Default or Event of
Default shall have occurred and be continuing, shall not settle such lawsuit or
enforcement action without the prior written consent of the indemnifying party
and, if the indemnifying party has not so acknowledged its obligation, the
indemnified party shall not settle such lawsuit or enforcement action within 20
days' prior written notice to the indemnifying party.
12.12 HEADINGS AND REFERENCES. The headings of the Articles and
Sections of this Agreement are inserted for convenience of reference only and
are not intended to be a part of, or to affect the meaning or interpretation of
this Agreement. Words such as "hereof", "hereunder", "herein" and words of
similar import shall refer to this Agreement in its entirety and not to any
particular Section or provisions hereof, unless so expressly specified. As used
herein, the singular shall include the plural, and the masculine shall include
the feminine or a neutral gender, and vice versa, whenever the context requires.
12.13 SEVERABILITY. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
12.14 ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto.
100
12.15 AGREEMENT CONTROLS. In the event that any term of any of the Loan
Documents other than this Agreement conflicts with any term of this Agreement,
the terms and provisions of this Agreement shall control.
12.16 USURY SAVINGS CLAUSE. Notwithstanding any other provision herein,
the aggregate interest rate charged under any of the Notes, including all
charges or fees in connection therewith deemed in the nature of interest under
Florida law, shall not exceed the Highest Lawful Rate (as such term is defined
below). If the rate of interest (determined without regard to the preceding
sentence) under this Agreement at any time exceeds the Highest Lawful Rate (as
defined below), the outstanding amount of the Loans made hereunder shall bear
interest at the Highest Lawful Rate until the total amount of interest due
hereunder equals the amount of interest which would have been due hereunder if
the stated rates of interest set forth in this Agreement had at all times been
in effect. In addition, if when the Loans made hereunder are repaid in full the
total interest due hereunder (taking into account the increase provided for
above) is less than the total amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect, then to the extent permitted by law, the Borrowers shall
pay to the Administrative Agent an amount equal to the difference between the
amount of interest paid and the amount of interest which would have been paid if
the Highest Lawful rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Borrowers to conform
strictly to any applicable usury laws. Accordingly, if any lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful rate, then any such excess shall be cancelled automatically
and, if previously paid, shall at such Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to the Borrowers.
As used in this paragraph, the term "Highest Lawful Rate" means the maximum
lawful interest rate, if any, that at any time or from time to time may be
contracted for, charged, or received under the laws applicable to such Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
12.17 CONFIDENTIALITY. Except as provided in Section 8.01(e) hereof,
the Lenders shall hold all non-public information obtained pursuant to the
requirements of this Agreement in accordance with their customary procedures for
handling confidential information of this nature but may, in any event, make
disclosures reasonably required in connection with the contemplated transfer or
assignment of any of the Loans or participations or as required or requested by
any legal process; PROVIDED that, unless specifically prohibited by applicable
law or court order, each Lender shall endeavor in good faith to notify the
Borrowers of any request under legal process by any governmental agency or
representative thereof for
101
disclosure of such information; however, failure to give notice in good faith
shall not give rise to liability.
12.18 ACCOUNTS RECEIVABLE. Notwithstanding any provision contained in
this Agreement, to the extent not otherwise prohibited by law, the IVAX and its
Subsidiaries (individually a "Transferor" and collectively the "Transferors")
may transfer to D&N Holding Company, a wholly-owned Subsidiary of IVAX (herein
called "D&N"), all or substantially all of Transferors' respective accounts
receivable (the "Transferred Property") provided (i) such transfer to D&N shall
occur not earlier than the third Business Day preceding December 31 of each
calendar year, (ii) the Transferor shall reacquire title to the Transferred
Property free of all Liens (other than any permitted under this Agreement) not
later than the third Business Day following such December 31, (iii) there shall
be delivered to an office of the Administrative Agent outside the State of
Florida and endorsed in favor of the Administrative Agent as security for the
Obligations a promissory note of D&N evidencing its obligation to pay for the
accounts receivable transferred to D&N, which note shall be promptly returned to
D&N upon the transfer by D&N of such Transferred Property to the Transferor of
such property, (iv) IVAX shall deliver to the Administrative Agent a written
statement of an Authorized Representative to the effect that, to the best of his
knowledge, no Liens, judgments or encumbrances exist against D&N Holding that
would attach to any of the Transferred Property in favor of any Person, and (v)
in calculating all financial covenants contained in Article VIII hereof, the
transfer of such accounts receivable shall be disregarded.
102
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
IVAX CORPORATION
WITNESS: BY: /s/ MICHAEL W. FIPPS
----------------------------------
Name: Michael W. Fipps
Title: Senior Vice President
/s/ JEFFREY EISENBERG and Chief Financial Officer
- ------------------------
/s/ SUGEET MACHANDA
- ------------------------
NORTON HEALTHCARE, LIMITED
WITNESS: BY: /s/ MICHAEL W. FIPPS
----------------------------------
Name: Michael W. Fipps
/s/ JEFFREY EISENBERG Title: Attorney-In-Fact
- ------------------------
/s/ SUGEET MACHANDA
- ------------------------
103
COMMITMENT: NATIONSBANK, National Association
$38,000,000 as Administrative Agent for the Lenders
By: /s/ ASHLEY M. CRABTREE
----------------------------------
Name: Ashley M. Crabtree
Title: Vice President
NATIONSBANK, National Association
By:/s/ ASHLEY M. CRABTREE
--------------------------------
Name: Ashley M. Crabtree
Title: Vice President
Lending Office:
101 N. Tryon Street, 15th Floor
Independence Center
Charlotte, North Carolina 28255
Wire Transfer Instructions:
NationsBank, National Association
Charlotte, North Carolina
ABA# 053000196
Corporate Credit Support
Reference: IVAX Corporation
Attention: Corporate Credit Support
Account No.: #1366212163
REF. IVAX CORPORATION
104
Commitment BANK OF AMERICA ILLINOIS, as Lender
$38,000,000
By:/s/ LAURENS F. SCHAAD, JR.
---------------------------------
Name: Laurens F. Schaad, Jr.
Title: Vice President
Lending Office:
231 S. LaSalle Street
Chicago, Illinois 60697
Wire Transfer Instructions:
Bank of America Illinois
Chicago, Illinois 60697
ABA# 0710 00039
Reference: IVAX Corporation
Attention: Fred Fischer
Account No.: 47-03421
105
Commitment ABN AMRO BANK N.V., Co-Agent
$30,000,000
By: ABN AMRO NORTH AMERICAN, INC.,
as Agent
By:/s/ RICHARD LAVINA
--------------------------------
Name: Richard Lavina
-----------------------------
Title: Group Vice President
By:/s/ DEBORAH DAY OROZCO
---------------------------------
Name:Deborah Day Orozco
Title: Vice President
Lending Office:
200 S. Biscayne Boulevard, 22nd Floor
Miami, Florida 33131
Wire Transfer Instructions:
ABN AMRO Bank Miami
Miami, Florida 33131
ABA# 066010869
Reference: IVAX Corporation
Account No.: 511180636610 Loan Adm.
106
Commitment CITICORP, USA, Co-Agent
$30,000,000
By: /s/ THOMAS D. STOTT
------------------------------
Name: Thomas D. Stott
Title: Vice President
Lending Office:
399 Park Avenue
New York, New York 10043
Wire Transfer Instructions:
Citibank, N.A.
New York, New York 11120
ABA# 021-0000-89
Reference: IVAX Corporation
Attention: Ronald Shamah
Account No.: 40548046
107
Commitment BARNETT BANK OF SOUTH FLORIDA, N.A.
$26,000,000
By:/s/ GUILLERMO G. CASTILLO
-------------------------------
Name: Guillermo G. Castillo
Title: Vice President
Lending Office:
701 Brickell Avenue
Miami, Florida 33131
Wire Transfer Instructions:
Barnett Bank of Jacksonville
Jacksonville, Florida
ABA# 063-000047
Reference: IVAX Corporation
Attention: Commercial Loan Operations
108
Commitment THE BANK OF NEW YORK
$20,000,000
By:/s/ H. STEPHEN GRIFFITH
------------------------------
Name:H. Stephen Griffith
Title:Senior Vice President
Lending Office:
One Wall Street
New York, New York 10286
Wire Transfer Instructions:
The Bank of New York
New York, New York 10286
ABA# 021000018
Reference: IVAX Corporation
Attention: Commercial Loan Dept.,
Lorna O. Alleyne
Account No.: GLA #111556
109
Commitment THE BANK OF NOVA SCOTIA
$20,000,000
By: /s/ FRANK F. SANDLER
---------------------------------
Name: Frank F. Sandler
Title:Relationship Manager
Lending Office:
600 Peachtree Street, N.E.
Suite 2700
Atlanta, Georgia 30308
Wire Transfer Instructions:
The Bank of Nova Scotia, New York Agency
New York, New York 10006
ABA# 026002532
Reference: IVAX Corporation
For further credit to: Atlanta Agency
Attention: Jefrey Jones
Account No.: 0606634
SCOTIABANK (U.K.) LIMITED
By: /s/ P.D. GIRLING
----------------------------------
Name: P.D. Girling
Title: Manager
Lending Office:
33 Finsbury Square
London, England EC2A 18B
Wire Transfer Instructions:
The Bank of Nova Scotia
New York, USA - Swift: N0SCU533
ABA# 026002532
Favour of: ScotiaBank (U.K.) Limited
Attention: David Sparkes
Account No.: 7294-34
110
Commitment THE BANK OF TOKYO-MITSUBISHI TRUST CO.
$20,000,000
By: /s/ M. SHERIDAN SUNIER
-----------------------------------
Name: M. Sheridan Sunier
Title: Vice President
Lending Office:
1251 Avenue of the Americas
12th Floor
New York, New York 10020-1104
Wire Transfer Instructions:
The Bank of Tokyo-Mitsubishi Trust Company
New York, New York 10020-1104
ABA# 0260-0968-7
Reference: IVAX Corporation
Attention: Loan Operations Dept.
Account No.: 97770477
111
Commitment COMMERZBANK AG, ATLANTA AGENCY
$20,000,000
By: /s/ HARRY P. YERGEY /s/ MARK WORTMAN
------------------------------------
Name: Harry P. Yergey Mark Wortman
Title:Vice President AVP
Lending Office:
1230 Peachtree Street
Suite 3500
Atlanta, Georgia 30309
Wire Transfer Instructions:
Commerzbank AG
New York, New York
ABA# 026008044
Reference: IVAX Corporation, #2004182
Account No.: F/C Atlanta Agency
112
Commitment CREDIT LYONNAIS NEW YORK BRANCH
$20,000,000
By: /s/ ROBERT IVOSEVICH
------------------------------
Name: Robert Ivosevich
Title:Senior Vice President
CREDIT LYONNAIS ATLANTA AGENCY
By:/s/ ROBERT IVOSEVICH
Name: Robert Ivosevich
Title: Senior Vice President
Lending Office:
1301 Avenue of the Americas
New York, New York 10019
Wire Transfer Instructions:
Credit Lyonnais New York
New York, New York 10019
ABA# 0260-0807-3
Account #01.24173.0001.00
For further credit to:
Credit Lyonnais Atlanta Agency
Reference: IVAX Corporation
Attention: Loan Servicing
113
Commitment DEUTSCHE BANK AG NEW YORK BRANCH
$20,000,000 and/or CAYMAN ISLANDS BRANCH
By: /s/ STEPHAN A. WIEDEMANN /s/ IAIN STEWART
-------------------------------------------
Name: Stephan A. Wiedemann Iain Stewart
Title: Vice President Assistant Vice President
Lending Office:
31 W. 52nd Street
New York, New York 10019
Wire Transfer Instructions:
Deutsche Bank AG New York Branch
New York, New York
ABA# 026003780
Reference: IVAX Corporation
Attention: ______________________
Account No.: ____________________
114
Commitment THE FIRST NATIONAL BANK OF CHICAGO
$20,000,000
By:/s/ ROBERT H. WOLOHAN
------------------------------
Name:Robert H. Wolohan
Title:Corporate Banking Officer
Lending Office:
The First National Bank of Chicago
One First National Plaza
Suite 0167, 1-10
Chicago, Illinois 60670
Wire Transfer Instructions:
The First National Bank of Chicago
Chicago, Illinois 60670
ABA# 071000013
Reference: IVAX Corporation
Attention: DES Incoming Clearing
Account
Account No.: 7521-7653
115
Commitment THE INDUSTRIAL BANK OF JAPAN, LIMITED
$20,000,000
By:/s/ JUNYA FUJIWARA
--------------------------------
Name: Junya Fujiwara
Title: Senior Vice President and
Deputy General Manager
Lending Office:
The Industrial Bank of Japan, Ltd.
191 Peachtree Street, N.E.
Suite 3600
Atlanta, Georgia 30303-1757
Wire Transfer Instructions:
The Industrial Bank of Japan, Ltd.,
New York Branch
New York, New York
ABA# 026008345
Reference: IVAX Corporation
For further credit to: IBJ Atlanta
Agency
Account No.: 2601-21014
116
Commitment THE SAKURA BANK, LIMITED
$20,000,000 ATLANTA AGENCY
By:/s/ HIROYASU IMANISHI
--------------------------------
Name: Hiroyasu Imanishi
Title:Vice President and Sr. Manager
Lending Office:
245 Peachtree Center Avenue, N.E.
Suite 2703
Atlanta, Georgia 30303
Wire Transfer Instructions:
Morgan Guaranty Trust Co. of New York
New York, New York
ABA# 021 000 238
Reference: IVAX Corporation
Account Name: The Sakura Bank, Ltd.,
New York
Account No.: 631-22-624
In favor of: MTKB, Atlanta,
A/C 8000100-1
117
Commitment THE SUMITOMO BANK, LIMITED, ATLANTA AGENCY
$20,000,000
By: /s/ MASAYUKI FUKUSHIMA
----------------------------------
Name: Masayuki Fukushima
Title: Joint General Manager
Lending Office:
The Sumitomo Bank, Limited
133 Peachtree Street
Suite 3210
Atlanta, Georgia 30303
Wire Transfer Instructions:
Morgan Guaranty Trust Co. of New York
New York, New York
ABA# 021 000 238
Attention: The Sumitomo Bank, New York
For further credit to: The Sumitomo
Bank, Atlanta Agency
Account No.: 819008
118
Commitment COOPERATIEVE CENTRALE
18,000,000 RAIFFEISEN-BOERENLEENBANK,
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By:/s/ ANGELA R. REILLY
------------------------------
Name: Angela R. Reilly
Title:Vice President
By: /s/ W. JEFFREY VOLLACK
------------------------------
Name: W. Jeffrey Vollack
Title Vice President, Manager
Lending Office:
245 Park Avenue
New York, New York 10167
Attn: Corporate Services Department
Tel: 212-916-7800
Fax: 212-818-0233
Wire Transfer Instructions:
Bank of New York
ABA# 021000018
A/C Rabobank New York
A/C #802 6002533
Reference: IVAX Corporation
119
Commitment THE FIRST NATIONAL BANK OF BOSTON
$15,000,000
By: /s/ CORNELIA W. NEWELL
------------------------------
Name:Cornelia W. Newell
Title: Director
Lending Office:
100 Federal Street
MS 01-10-01
Boston, Massachusetts 02110
Wire Transfer Instructions:
The First National Bank of Boston
Boston, Massachusetts 02110
ABA# 011-000-390
Attention: Commercial Loan Services
Samuel Zuvekas
Reference: IVAX Corporation
120
Commitment NATIONAL WESTMINSTER BANK PLC,
$15,000,000 NEW YORK BRANCH AND
NATIONAL WESTMINSTER
BANK PLC, NASSAU BRANCH
By:/s/ PETER STRINGER
-------------------------------
Name: Peter Stringer
Title: Senior Vice President
Lending Office:
NATIONAL WESTMINISTER BANK PLC-
NASSAU BRANCH
175 WATER STREET
NEW YORK, NY 10038 19TH FLOOR
---------------------------------
Wire Transfer Instructions:
NATWEST BANK PLC
NEW YORK, NY
ABA# 026002749
Reference: IVAX Corporation
Attention: Margaret Beardsley
Account No.: 8906815
121
Commitment WACHOVIA BANK OF GEORGIA, N.A.
$15,000,000
By: /s/ LEO L. BALTZ
--------------------------------
Name: Leo L. Baltz
Title: Vice President
Lending Office:
191 Peachtree Street
Atlanta, Georgia 30303
Wire Transfer Instructions:
Wachovia Bank of Georgia, N.A.
Atlanta, Georgia 30303
ABA# 061000010
Reference: IVAX Corporation
Attention: Karen Mathews
Account No.: 18 800 621
122