EXHIBIT 10
AMENDMENT NO. 1
TO REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT NO. 1 TO REVOLVING CREDIT AND REIMBURSEMENT
AGREEMENT (this "Amendment Agreement") is made and entered into as
of the 14th day of November, 1996 among:
IVAX CORPORATION, a Florida corporation ("IVAX") and NORTON HEALTHCARE,
LIMITED, an organization formed under the laws of England ("NHL"; together with
IVAX, the "Old Borrowers");
IVAX INTERNATIONAL, BV, an organization formed under The Kingdom of the
Netherlands ("IVAX BV" or the "New Borrower"; together with the Old Borrowers,
the "Borrowers");
NATIONSBANK, NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States of America and having
its principal place of business in Charlotte, North Carolina ("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 (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 Old Borrowers, the Lenders and the Agents have entered
into a Revolving Credit and Reimbursement Agreement, dated as of May 14, 1996 as
amended hereby (the "Agreement") pursuant to which the Lenders agreed to make
Loans and to issue certain Letters of Credit on behalf of the Old Borrowers (the
"Loans");
WHEREAS, IVAX intends to transfer the stock of NHL to IVAX BV and
Norton (Waterford) Limited shall transfer substantially all of its assets to
IVAX BV;
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WHEREAS, the New Borrower desires to obtain working capital directly or
indirectly with the proceeds of the Loans under the Agreement, which will
materially and directly benefit the New Borrower;
WHEREAS, the Borrowers and their respective Subsidiaries, including but
not limited to the Significant Subsidiaries, acknowledge that the Obligations
outstanding under the Agreement have been, are and will be of direct interest,
benefit and advantage to each of them, and will enable them to achieve their
common goals and enterprise;
WHEREAS, IVAX and certain of its Subsidiaries have incurred significant
losses which has resulted in a failure to comply with various of the covenants
and conditions set forth in the Agreement;
WHEREAS, the Borrowers have requested that the Lenders waive such
non-compliance and amend certain provisions of the Agreement so that the
Borrowers will no longer be in violation of the Agreement and the Lenders and
the Agents have agreed to do so in the manner set forth in this Amendment
Agreement and upon the condition that the Borrowers and their Significant
Subsidiaries grant to the Agent for the benefit of the Lenders a security
interest in certain of their assets and effect the Guaranties as herein
provided;
WHEREAS, the Agreement requires that each Significant Subsidiary enter
into a Guaranty Agreement and as a condition precedent to this Amendment
Agreement, the Lenders and the Agents have required that such Subsidiaries
execute and deliver to the Administrative Agent certain Security Instruments
dated as of the date hereof;
NOW, THEREFORE, in consideration of the mutual covenants and the
fulfillment of the conditions set forth herein, the parties hereto do hereby
agree as follows:
1. DEFINITIONS. Any capitalized terms used herein without
definition shall have the meaning set forth in the Agreement.
Except as otherwise set forth herein, the term "Agreement" as used
herein and in the Agreement and other Loan Documents shall mean the
Agreement as hereby amended.
2. TEMPORARY AMENDMENTS. Notwithstanding the terms and
conditions of the Agreement, from the date hereof to (x) in the
case of clause (e) below through December 31, 1997 and (y) in the
case of the "Applicable Margin" and "Floating Rate" to the date
IVAX furnishes to the Administrative Agent a Compliance Certificate
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pursuant to Section 8.01(a) of the Agreement for the fiscal year ending December
31, 1997 demonstrating that it has complied with the financial covenants
contained in Sections 9.02 and 9.03 of the Agreement (before taking into effect
this Amendment Agreement) to the satisfaction of the Required Lenders the
following amendments to the Agreement shall apply:
(a) The definition of "Applicable Margin" is hereby
amended and restated in its entirety as follows:
"'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 Debt to Capital Ratio and the Consolidated Interest
Coverage Ratio for the quarter period most recently ended as specified
below:
CONSOLIDATED DEBT TO CAPITAL RATIO
EQUAL TO OR EQUAL TO OR
GREATER THAN GREATER THAN EQUAL TO OR
LESS THAN 30% BUT LESS 35% BUT LESS GREATER THAN
30% THAN 35% THAN 40% 40%
--- ---------- ---------- ----
LETTERS LETTERS LETTERS LETTERS
OF OF OF OF
CONSOLIDATED CREDIT CREDIT CREDIT CREDIT
INTEREST AND UNUSED AND UNUSED AND UNUSED AND UNUSED
COVERAGE RATIO LOANS FEE LOANS FEE LOANS FEE LOANS FEE
--------------- --------- ---------- ---------- --------- ---------- ---------- ---------- ----------
Greater than or
equal to 4.50 to 87.5 20 100 25 112.5 25 125 27.5
1.00
Greater than or
equal to 3.50 to
1.00 but less 100 25 112.5 25 125 27.5 150 31.25
than 4.50 to
1.00
Greater than or
equal to 2.50 to
1.00 but less 112.5 25 125 27.5 150 31.25 175 37.5
than 3.50 to
1.00
Less than 2.50 125 27.5 150 31.25 175 37.5 200 50
to 1.00
The Applicable Margin shall be established as at the end of each fiscal
quarter of IVAX (the "Ratio Determination Date"). Except as set forth
below, any change in the Applicable Margin following each Ratio
Determination Date shall be determined based upon the computations set
forth
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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, with
respect to the Letters of Credit and Loans shall be the Applicable
Margin then in effect plus 2% and with respect to the unused fee
payable in accordance with Section 2.10, plus .5% until the appropriate
certificate is so delivered. Notwithstanding the foregoing, from the
date of Amendment No. 1 to the Business Day next following receipt of
the Compliance Certificate for the fiscal year ending December 31,
1996, the Applicable Margin shall be 200 basis points for LIBOR Loans,
Alternative Currency Loans, Swing Line Loans and Letters of Credit and
the unused fee shall be 50 basis points."
(b) The definition of "Floating Rate" is hereby amended
and restated in its entirety as follows:
"'Floating Rate' means the sum of (a) the greater of (i) the
Prime Rate or (ii) the Federal Funds Effective Rate plus one-half of
one percent (1/2%) plus (b) 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."
(c) The following new definitions are inserted in
appropriate alphabetical order:
"'Consolidated Debt to Capital Ratio' means the ratio of (i)
Consolidated Funded Indebtedness to (ii) the sum of (A) Consolidated
Funded Indebtedness plus (B) Consolidated Shareholders' Equity.
'Consolidated Interest Coverage Ratio' means the ratio of (i)
Consolidated EBITDA for any period of determination to (ii)
Consolidated Interest Expense for such period."
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(d) "Consolidated EBITDA" and "Consolidated Interest Expense"
for the periods ending December 31, 1996, March 31, 1997 and June 30, 1997,
respectively, shall be calculated for the three, six and nine month periods then
ended, respectively; and for each quarterly period ended thereafter for a
Four-Quarter Period. For purposes of Section 9.18 and calculation of the
"Applicable Margin" only, the following shall be added back into Consolidated
Net Income to the extent actually deducted those amounts described in Schedule
1.02.
(e) Section 9.18, Section 9.19 and Section 9.20 are
hereby added to the end of Article IX:
"Section 9.18 MINIMUM CONSOLIDATED EBITDA. Permit Consolidated
EBITDA for the periods set forth on Schedule 9.18 to be less than the
amount set forth on such Schedule opposite such period.
Section 9.19 NET LOSS. Permit Consolidated Net Income for the
third fiscal quarter of 1996 to be less than a negative of
$180,000,000.
Section 9.20 CONSOLIDATED DEBT TO CAPITAL RATIO.
Permit the Consolidated Debt to Capital Ratio to be more
than 45%."
(f) During the period the above temporary amendments are
applicable, there shall be no Competitive Bid Loans made pursuant to Section
2.04 of the Agreement.
(g) After the temporary amendments are no longer applicable,
the provisions of the Agreement which were temporarily amended by the Amendment
Agreement shall be in effect as they were prior to the effectiveness of the
temporary amendments.
3. PERMANENT AMENDMENTS TO AGREEMENT. The following
amendments to the Agreement are permanent:
(a) The definition of "Available Revolving Credit
Commitment" is hereby amended and restated in its entirely as
follows:
"'Available Revolving Credit Commitment' means, as
of the effective date of Amendment No. 1, $375,000,000
(such amount to be reduced by the Xxxxxxxx Indebtedness,
if any)."
(b) The definition of "Consolidated Leverage Ratio" is
hereby amended and restated in its entirety as follows:
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"Consolidated Leverage Ratio" means the ratio of (a)
Consolidated Funded Indebtedness to (b) Consolidated EBITDA for the
Four-Quarter Period ended as of the date of determination;"
(c) The definition of "Guarantors" is hereby amended and
restated in its entirety as follows:
"'Guarantors' means (i) in the case of the Obligations of
IVAX, NHL and IVAX BV, all of the domestic Subsidiaries of IVAX (other
than IA Subsidiary, Inc., which shall at all times remain inactive),
and each additional domestic Subsidiary of IVAX which becomes a
Significant Subsidiary from time to time (ii) in the case of the
Obligations of NHL and IVAX BV, IVAX and the Significant Subsidiaries
of NHL and IVAX BV listed on Schedule 1.01 attached to Amendment No. 1
and each additional Subsidiary of NHL and IVAX BV which becomes a
Significant Subsidiary from time to time."
(d) The definition of "Guaranty" is hereby amended by
deleting the phrase "of even date herewith" therein.
(e) The definition of "Loan Documents" is hereby amended
and restated in its entirety as follows:
"'Loan Documents' means this Agreement, the Notes, the
Guaranty, the Guaranty Agreement of IVAX dated May 14, 1996,
Applications and Agreements for Letters of Credit, the LC Account
Agreement, the Security Instruments 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 under this Agreement
as the same may be amended, modified or supplemented from the time to
time".
(f) The definition of "NHL Guarantors" is hereby
deleted.
(g) The definition of "NHL Sublimit" is here amended and
restated in its entirety as follows:
"'NHL/IVAX BV Sublimit' means in the aggregate
$66,000,000."
(h) The definition of "Permitted Acquisition" is hereby
amended and restated in its entirety as follows:
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"'Permitted Acquisition' means (a) the Xxxxxxxx Acquisition
provided the aggregate purchase price for such acquisition does not
exceed $10,800,000, $2,000,000 payable in the third fiscal quarter of
1996 and approximately $8,800,000 payable during fiscal year 1997 and
(b) any other acquisitions approved by the Required Lenders."
(i) The definition of "Pledge Agreement" is hereby
amended and restated in its entirety as follows:
"'Pledge Agreements' means (i) the Pledge Agreements from IVAX
and certain of its domestic Subsidiaries to the Administrative Agent,
for the benefit of the Lenders, pursuant to which IVAX and such
Subsidiaries have pledged to the Administrative Agent as security for
the Obligations 100% of the issued and outstanding capital stock of
their domestic Significant Subsidiaries and 65% of the capital stock of
their first tier foreign Significant Subsidiaries and (ii) the Pledge
Agreements from IVAX BV and NHL to the Administrative Agent, for the
benefit of the Lenders, pursuant to which IVAX BV and NHL have pledged
to the Administrative Agent as security for the Obligations of IVAX BV
and NHL 100% of the issued and outstanding capital stock of their
Significant Subsidiaries other than Galena s.a."
(j) The definition of "Revolving Credit Termination Date" is
hereby amended by deleting the date "May 14, 2001" and inserting, in lieu
thereof, the date "November 14, 1999".
(k) The definition of "Significant Subsidiary" is hereby
amended and restated in its entirety as follows:
"'Significant Subsidiaries' means (a) in the case of IVAX,
each Subsidiary of IVAX which (i) represents more than 5% of the
consolidated total assets of IVAX and its Subsidiaries or (ii)
contributes more than 5% of the Consolidated Net Income of IVAX and its
Subsidiaries the timing of determination to be made by the
Administrative Agent, (b) in the case of NHL and IVAX BV, each
Subsidiary of NHL or IVAX BV, respectively, which (i) represents more
than 5% of the consolidated total assets of NHL and its Subsidiaries or
IVAX BV and its Subsidiaries, respectively, or (ii) contributes more
than 5% of the net income of NHL and its Subsidiaries or IVAX BV and
its Subsidiaries, the timing of determination to be made by the
Administrative Agent and (c) such other Subsidiaries as agreed to by
IVAX and the Administrative
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Agent. The Significant Subsidiaries at September 30, 1996
are set forth on Schedule 7.01(d)."
(l) The definition of "Total Revolving Credit Commitment" is
hereby amended by deleting the amount "$425,000,000" and inserting, in lieu
thereof, the phrase "$375,000,000 (such amount to be reduced by the Xxxxxxxx
Indebtedness, if any)."
(m) The following new definitions are inserted in the
appropriate alphabetical order:
"'Amendment No. 1' means Amendment No. 1 to this
Agreement dated as of November 14, 1996;
'Assignment of Patents, Trademarks, Service Marks and
Copyrights' means, the Assignment of Patents, Trademarks, Service Marks
and Copyrights dated as of the date of Amendment No. 1 made by the
Borrowers and the Guarantors in favor of the Administrative Agent for
the benefit of the Lenders;
'Collateral' means, collectively, all property of the
Borrowers and any Guarantor in which the Administrative Agent, for the
benefit of the Lenders, or any Lender is granted a Lien as security for
all or any portion of the Obligations under any Security Instrument or
other Loan Document;
'Debenture' means collectively those Debentures
given by certain foreign Subsidiaries to secure
Obligations of the Borrowers and Guarantors;
'Xxxxxxxx Acquisition' means the acquisition by IVAX
of a manufacturing facility located in Xxxxxxxx, Canada
pursuant to the terms of the Facility Purchase Agreement,
dated August 22, 1996, between Glaxo Wellcome Inc. and
IVAX;
'Xxxxxxxx Indebtedness' means, the amount of Indebtedness
incurred in connection with the Xxxxxxxx Acquisition from a third party
creditor; provided, however, such Indebtedness shall not exceed
$10,000,000 nor be less than 75% of the amount paid for property, plant
and equipment in connection with the Xxxxxxxx Acquisition;
'Mortgages' means collectively (i) the Mortgages
executed by IVAX, XxXxx, Inc., Xxxxxxx Products Co., Inc.
and Zenith Laboratories, Inc. and (ii) in the event
Indebtedness is incurred hereunder to make the Xxxxxxxx
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Acquisition, the Mortgage granted by the IVAX Subsidiary consummating
the Xxxxxxxx Acquisition or refinancing of the Xxxxxxxx Acquisition, to
the Administrative Agent, for the benefit of the Lenders, pursuant to
which such Borrower and Guarantors have granted or will grant, as the
case may be, to the Administrative Agent a first priority security
interest in certain real property;
'NHL Transfer Event' means the transfer by IVAX of the stock
of NHL to IVAX BV and the transfer by Norton (Waterford) Limited of
substantially all of its assets to IVAX BV.
'Security Agreements' means collectively the Security
Agreements and Debentures, as the case may be, executed by the
Borrowers and certain of the Guarantors of even date with Amendment No.
1 to the Administrative Agent, for the benefit of the Lenders, pursuant
to which the Borrowers and such Guarantors have granted to the
Administrative Agent, for the benefit of the Lenders, a security
interest in the property described therein;
'Security Instruments' means, collectively, the Pledge
Agreements, the Security Agreements, the Mortgages, the Assignment of
Patents, Trademarks, Service Marks and Copyrights and all other
agreements, instruments and other documents, whether now existing or
hereafter in effect, pursuant to which the Borrowers or any Guarantor
shall grant or convey to the Administrative Agent or the Lenders a Lien
in property as security for all or any portion of the Obligations, as
any of them may be amended, modified or supplemented from time to
time;"
(n) Schedules 1.01, 7.01(d), 7.01(e), 7.01(g) 9.04 and
9.07(iii) to the Agreement are hereby deleted and replaced by new Schedules
1.01, 7.01(d), 7.01(e), 7.01(g), 9.04 and 9.07(ii) attached hereto and new
Schedules 9.02, 9.18 and 9.19 in forms attached hereto or added to the
Agreement.
(o) Exhibit A and Exhibit F to the Agreement are hereby
deleted and replaced by Exhibit A and Exhibit F hereto.
(p) Section 8.01 is hereby amended by (i) deleting the phrase
"Sections 9.01 through 9.03" in (a)(iii) thereof and inserting, in lieu thereof,
the phrase "Sections 9.16 through 9.18", (ii) deleting the first parenthetical
phrase in paragraph (b) thereof and inserting, in lieu thereof, the following
phrase "(except the last reporting period of the Fiscal Year, provided that for
Fiscal Year 1996 the following is required within 75 days after the end of such
period), (iii) deleting the word "and" at the
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end of subsection (d), (iv) deleting the period at the end of subsection (e) and
inserting in lieu thereof a semi-colon and the word "and" and (v) adding the
following additional subsection (f) thereto:
"(f) (i) not later than the last day of each month (unless
such preceding month is the end of a fiscal quarter), deliver to the
Administrative Agent (together with copies for each Lender), an
unaudited consolidated and consolidating balance sheet of IVAX and its
Subsidiaries as at the end of the immediately preceding month and the
related consolidated and consolidating statement of operations for such
month 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 for such reporting period, in conformity with
Generally Accepted Accounting Principles, subject, however, to quarter
and year end adjustments with respect to interim financials; and (ii)
not later than five (5) Business Days before the first day of each
month, a projection of cash needs for such month in form and content
acceptable to the Administrative Agent."
(q) Section 8.19 is hereby amended by (i) amending clause (a)
in its entirety so that as amended it shall read as follows:
"(a) a Guaranty and Security Agreement executed by such
Subsidiary and a Pledge Agreement executed by the owner of the
capital stock of such Significant Subsidiary;"
(ii) clause (b) is amended to provide for the delivery of an opinion or opinions
as to the Security Agreement and Pledge Agreement similar to that required with
respect to the Guaranty, (iii) deleting the period at the end of clause (c) and
inserting a semi-colon in lieu thereof and (iv) adding a new clause (d) thereto
reading as follows:
"(d) certificates representing 100% of the issued and
outstanding capital stock of any new domestic Significant Subsidiary
and 65% of the issued and outstanding capital stock of any foreign
Significant Subsidiary of IVAX, and 100% of the issued and outstanding
capital stock of any Significant Subsidiary of NHL or IVAX B.V.,
together with stock powers or other evidence of pledge that the
Administrative Agent may reasonably request."
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(r) The first sentence of Article IX is hereby amended by
deleting the phrase "Significant Subsidiary" and inserting in lieu thereof the
word "Subsidiaries". For the purposes of Sections 9.04 through 9.15 the terms
Subsidiary and Significant Subsidiary shall exclude Galena s.a.
(s) Section 9.01 is hereby amended by deleting the phrase
"$480,000,000 at December 31, 1995" and inserting, in lieu thereof, the phrase
"$525,000,000 at September 30, 1996".
(t) Section 9.04 is hereby amended and restated in its
entirety as follows:
"9.04 INDEBTEDNESS OR GUARANTEED OBLIGATIONS. Incur, create,
assume or permit to exist any Indebtedness or Guaranteed Obligations ,
howsoever evidenced, except for (i) Indebtedness or Guaranteed
Obligations incurred hereunder, (ii) additional Indebtedness or
Guaranteed Obligations, without duplication, of foreign Subsidiaries
incurred after the date of Amendment No. 1 in the aggregate outstanding
amount, when combined with what such Subsidiaries have incurred
pursuant to Section 9.07 (v), not to exceed $25,000,000, provided that
such Indebtedness shall not contain terms or covenants more restrictive
than those contained in this Agreement, (iii) Indebtedness and
Guaranteed Obligations existing on the date of Amendment No. 1 and
listed in Schedule 9.04 and 9.07(ii) attached to Amendment No.1., (iv)
additional Indebtedness incurred by IVAX and its domestic Subsidiaries
after the date of Amendment No. 1 with respect to Capital Leases not to
exceed $25,000,000 in the aggregate, (v) Indebtedness or Guaranteed
Obligations, without duplication, of the Borrowers in excess of that
permitted under clauses (ii), (iv) and (vi) of this Section 9.04 so
long as (x) the Required Lenders shall consent to incurring such
Indebtedness and the terms thereof, and (y) 100% of the net proceeds of
such Indebtedness are applied to permanently reduce the Total Revolving
Credit Commitment pursuant to Section 2.07 and (vi) the Xxxxxxxx
Indebtedness, provided that such Indebtedness shall not contain terms
or covenants more restrictive than those contained in this Agreement."
(u) Section 9.05 is hereby amended by (i) deleting the phrase
"Significant Subsidiary" everywhere it appears therein and inserting in lieu
thereof the word "Subsidiary", (ii) deleting the phrase "attached hereto" in
clause (i) thereof and inserting in lieu thereof the phrase "attached to
Amendment No. 1" and deleting the phrase "existing as of the date hereof and
as", (iii) deleting clause (vi) in its entirety, and (iv) renumbering clause
(vii) as
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clause (vi) and amending and restating clause (vi) to read as
follows:
"(vi) purchase money liens to secure Indebtedness permitted
under Section 9.04(ii),(iv) and (vi) 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 incurred after the date of Amendment No. 1
secured by purchase money Liens at no time exceeds $10,000,000, plus
the amount of the Xxxxxxxx Indebtedness or $10,000,000 if the Xxxxxxxx
Indebtedness is not outstanding."
(v) Section 9.06 is hereby amended and restated in its
entirety as follows:
"9.06 TRANSFER OF ASSETS. Sell, lease, transfer or otherwise
dispose of any asset of Borrowers or their Subsidiaries other than,
from the date of Amendment No. 1 until payment in full of the
Obligations, termination of all commitments to make Loans and such
times as there are no Letters of Credit outstanding, (i) assets (but
not including accounts receivable) having fair market value of less
than $25,000,000 in the aggregate for all assets sold hereunder
provided that 75% of the net proceeds of such disposition are used to
permanently reduce the Revolving Credit Loans in accordance with
Section 2.07 and (ii) inventory, intellectual property, worn-out or
obsolete assets, all in the ordinary course of business."
(w) Section 9.07 is hereby amended and restated in its
entirety as follows:
"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
Subsidiaries may make loans or advances to, maintain investments or
invest in or acquire, without duplication or aggregation
(i) Eligible Securities;
(ii) loans, investments and advances
outstanding on the date of Amendment No. 1 listed
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on SCHEDULE 9.07(II) and SCHEDULE 7.01(E) attached
to Amendment No. 1;
(iii) 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;
(iv) investments in securities rated BBB+ and
Baa1 or better by S&P and Xxxxx'x, respectively;
(v) additional loans and advances to and investments
in foreign Subsidiaries made subsequent to the date of
Amendment No. 1 in an aggregate outstanding amount not to
exceed, when aggregated with Indebtedness of such Subsidiaries
permitted pursuant to Section 9.04(ii), $25,000,000;
(vi) loans, advances and investments in
domestic Guarantors; and
(vii) Permitted Acquisitions."
(x) The proviso contained in Section 9.08 is hereby amended by
deleting the word "Significant" wherever it appears in clauses (i) and (ii).
(y) Section 9.09 is hereby amended and restated in its
entirety as follows:
"9.09 RESTRICTED PAYMENTS. In respect of IVAX, declare or pay
any dividends (other than those payable solely in capital stock or in
rights to purchase 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 (other than the
redemption of rights to purchase capital stock of IVAX for an aggregate
purchase price of not to exceed $1,500,000)."
(z) Sections 9.16 and 9.17 are hereby added to the end
of Article IX:
"9.16 CAPITAL EXPENDITURES. Make or become
committed to make Consolidated Capital Expenditures,
which exceed in the aggregate amounts set forth on
Schedule 9.16 in the periods set forth on Schedule 9.16
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(on a noncumulative basis, with the effect that amounts not expended in
any Fiscal Year may not be carried forward to a subsequent Fiscal Year
provided, however, that amounts not expended in any Fiscal Quarter of
1997 may be carried forward to the subsequent 1997 Fiscal Quarter
only).
9.17 REDEMPTION OF INDEBTEDNESS. (a) Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in
any manner, or make any payment in violation of any subordination terms
of, any Indebtedness, other than (i) Indebtedness incurred hereunder,
(ii) scheduled amortization payments of Indebtedness permitted under
Section 9.04, provided that in no event shall such payments include
payments due to acceleration of Indebtedness in an aggregate amount of
$10,000,000 or more, (iii) the payment in full of overdraft facilities
and (iv) refinancing of existing Indebtedness of foreign Subsidiaries
which Indebtedness is described on Schedule 9.04 and Section 9.04(ii)
so long as any such Indebtedness (x) shall not contain terms or
covenants more restrictive than those contained in this Agreement and
(y) shall not exceed the amount of the Indebtedness being refinanced
plus the reasonable costs and expenses of such refinancing or (b)
amend, modify or change in any manner any term or condition of any
Capital Lease having a present value greater than $2,500,000 or any
Indebtedness so that the terms and covenants thereof are less favorable
to the Agents and the Lenders than the terms of such Capital Lease or
Indebtedness as of the date of Amendment No. 1 and the present value of
such Capital Lease is not increased."
(aa) Clause (c) of Section 10.01 is hereby amended and
restated in its entirety as follows:
"(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 or 8.19 or Article IX hereof;"
(bb) Clause (e) of Section 10.01 is hereby amended by adding
the phrase "or Guaranteed Obligations" after the word "Indebtedness" wherever it
appears therein.
14
(cc) Section 10.01(C) is hereby amended by deleting the phrase
"20 basis points" and inserting, in lieu thereof, the phrase "50 basis points".
(dd) Section 11.12 is hereby added to the end of
Article XI:
"11.12 SECURITY TRUSTEE. The Administrative Agent shall be the
"Security Trustee" under any of those Security Instruments which are
expressed to be governed by English or Irish law and shall accept
without investigation, requisition or objection such title as any
person may have to the assets which are subject to the English Security
Instruments and shall not (a) be bound or concerned to examine or
inquire into the title of any person; (b) be liable for any defect or
failure in the title of any person, whether such defect or failure was
known to it or might have been discovered upon examination or inquiry
and whether capable of remedy or not; (c) be liable for any failure on
its part to give notice of such Security Instruments to any third party
or otherwise perfect or register the security created by such Security
Documents.
The Security Trustee shall hold the benefit of the English
Security Instruments upon trust for itself, the Lenders and the
Administrative Agent. Upon the appointment of any successor Security
Trustee, the resigning Security Trustee shall execute and deliver such
documents and do such other acts and things as may be necessary to vest
in the successor Security Trustee all the rights, title and interests
vested in the resigning Security Trustee.
The Administrative Agent and each Lender confirm that they do
not wish to be registered in accordance with Rule 146 of the English
Land Registration Rules 1925 as the joint proprietor of any mortgage or
charge created pursuant to any Loan Document and accordingly authorizes
the Security Trustee to hold such mortgage or charge in its sole name
as agent and trustee for the Administrative Agent and the Lenders and
requests H.M. Land Registry to register the Security Trustee as the
sole proprietor of any such mortgage or charge."
4. UNIVERSAL AMENDMENTS TO LOAN DOCUMENTS.
(a) All references in the Loan Documents to the
"Borrowers" in the Agreement and in each exhibit thereto is hereby
amended to mean, collectively, the Old Borrowers (as defined in
15
this Amendment Agreement) and the New Borrower (as defined in this Amendment
Agreement). Whenever the terms "either Borrower" or "any Borrower" are used in
the Agreement or other Loan Documents such terms shall be amended to mean "any
of the Borrowers".
(b) All references to "IVAX or NHL" are hereby amended
to be "IVAX, NHL or IVAX BV."
(c) All references to "NHL" are hereby amended to mean "NHL
and IVAX BV" and in each place where the singular form of a verb or possessive
adjective follows such reference, it is hereby pluralized.
(d) IVAX agrees that its guaranty of NHL's Obligations under
the Agreement and other Loan Documents and its Guaranty will, from the date
hereof until the payment in full of the obligations (including the expiration of
all Letters of Credit issued for the benefit of NHL or IVAX BV) of NHL and IVAX
BV and termination of all commitments to make Loans to NHL and IVAX BV, be an
irrevocable, absolute and unconditional guarantee of both NHL's and IVAX BV's
Indebtedness under the Agreement.
(e) Everywhere the term "NHL Sublimit" appears in the
Agreement or the Loan Documents it is hereby replaced with the term "NHL/IVAX BV
Sublimit".
5. NEW BORROWER UNDERTAKINGS. The New Borrower acknowledges and agrees
that it is a party to and bound by, and shall observe, perform and fulfill all
of the obligations, undertakings and liabilities of NHL under the Agreement, the
Notes, the LC Account Agreement and each other Loan Document to the same extent
as if it were an original signatory thereto. The New Borrower acknowledges and
agrees to the provisions of Section 12.10 of the Agreement with respect to
itself.
6. REPRESENTATIONS AND WARRANTIES. In order to induce the
Agent and the Lender to enter into this Agreement, the Borrowers
(including the New Borrower) represent and warrant to the Agents
and the Lenders as follows:
(a) The representations and warranties made by Borrowers in
Article VII of the Agreement are true in all material respects on and as of the
date hereof, except to the extent (i) previously disclosed in writing to the
Agents and the Lenders and (ii) such representation and warranty expressly
relates to an earlier date and for changes therein permitted by the Agreement;
(b) There has been no material adverse change in the
condition, financial or otherwise, of the Borrowers and their Subsidiaries,
taken as a whole, since June 30, 1996, other than
16
changes in the ordinary course of business and changes which have been
previously disclosed in writing to the Lenders and the Agents by that certain
"Revised Financial Projections and Supplemental Information" dated October 30,
1996;
(c) The business and properties of the Borrowers and their
Subsidiaries, taken as a whole, are not, and since the date of the most recent
financial report of the Borrowers and their Subsidiaries received by the Agents
and the Lenders under Section 6.01(f) of the Agreement or otherwise, have not
been adversely affected in any substantial way as the result of any fire,
explosion, earthquake, accident, strike, lockout, combination of workers, flood,
embargo, riot, activities of armed forces, war or acts of God or the public
enemy, or cancellation or loss of any major contracts; and
(d) No event has occurred and no condition exists which, upon
the consummation of the transaction contemplated hereby, constituted a Default
or an Event of Default on the part of the Borrowers under the Agreement either
immediately or with the lapse of time or the giving of notice, or both, which
has not been previously disclosed in writing to the Agents and the Lenders.
7. SECURITY.
(a) As security for the full and timely payment and
performance of all Obligations, the Borrowers shall, and shall cause certain of
the Guarantors to, do or cause to be done all things necessary in the opinion of
the Administrative Agent and its counsel to grant to the Administrative Agent
for the benefit of the Lenders a duly perfected security interest in all
Collateral subject to no prior Lien or other encumbrance or restriction on
transfer (other than (1) those permitted under the Loan Documents and (ii)
restrictions on transfer imposed by applicable securities laws).
(b) At the request of the Administrative Agent, the Borrowers
will and will cause the Guarantors, as the case may be, to execute, by its duly
authorized officers, alone or with the Administrative Agent, any certificate,
instrument, statement or documents, or to procure any such certificate,
instrument, statement or document, or to take such other action (and pay all
connected costs) which the Administrative Agent reasonably deems necessary from
time to time to create, continue or preserve the liens and security interests in
Collateral (and the perfection and priority thereof) of the Administrative Agent
contemplated hereby and by the other Loan Documents.
(c) Each Borrower represents, warrants (to the best of
its knowledge, after due inquiry) and covenants that (i) the chief
17
executive office of the Borrower and each other Person providing Collateral
pursuant to a Security Instrument (each, a "Grantor") is located at the address
or addresses specified on SCHEDULE 7, and (ii) SCHEDULE 7 contains a true and
complete list of (a) the name and address of each Grantor and of each other
Person that has effected any merger or consolidation with a Grantor or
contributed or transferred to a Grantor any property constituting Collateral at
any time since January 1, 1991 (excluding Persons making sales in the ordinary
course of their businesses to a Grantor of property constituting inventory in
the hands of such seller), (b) each location of the chief executive office of
each Grantor at any time since January 1, 1991, (c) each location in which goods
constituting Collateral are or have been located since January 1, 1991 (together
with the name of each owner of the property located at such address if not the
applicable Grantor, and a summary description of the relationship between the
applicable Grantor and such Person), and (d) each trade style used by any
Grantor since January 1, 1991 and the purposes for which it was used. Each
Borrower shall not change, and shall not permit any other Grantor to change, the
location of its chief executive office or any location specified in clause (c)
of the immediately preceding sentence, or use or permit any other Grantor to
use, any additional trade style, except upon giving not less than thirty (30)
days' prior written notice to the Administrative Agent and taking or causing to
be taken all such action at Borrower's or such other Grantor's expense as may be
reasonably requested by the Administrative Agent to perfect or maintain the
perfection of the Lien of the Administrative Agent in Collateral.
(d) The Administrative Agent shall engage for the benefit of
the Lenders, at the expense of IVAX, at or prior to November 30, 1996, an
independent consultant acceptable to IVAX and IVAX shall use its best efforts to
cooperate with such consultant to make by December 31, 1996,(i) an on-site
evaluation and physical audit of the receivables, and inventory of Zenith
Goldline Pharmaceuticals, Inc. and its Subsidiaries (collectively
"Pharmaceuticals") (ii) an evaluation of the adequacy of reserves established by
Pharmaceuticals for returns of inventory sold, bad debts and disallowances and
(iii) an evaluation of the "Revised Financial Projections and Supplemental
Information" dated October 30, 1996 and the means for achieving such projections
all in scope and form satisfactory to the Administrative Agent. The
Administrative Agent, the Lenders and IVAX shall have free and full access to
the consultant and the consultant's report.
The failure of IVAX to pay for or approve the consultant or
intentional interference by IVAX or its Subsidiaries with such consultant's
efforts to perform such evaluation shall constitute an Event of Default under
the Agreement.
18
8. CONDITIONS PRECEDENT. This Amendment Agreement shall
become effective upon the delivery by the Borrowers to the
Administrative Agent, of the following:
(i) twenty executed counterparts of this
Amendment Agreement;
(ii) Resolutions of the Board of Directors of
Borrowers and each Guarantor existing prior to the date hereof with
respect to the approval of this Amendment Agreement and the
transactions contemplated hereby and, with respect to the Borrowers and
the Significant Subsidiaries who are assignors or pledgors, the Notes,
the Pledge Agreements and the Security Instruments;
(iii) a certificate of the Secretary or Assistant
Secretary of the Borrowers and each Guarantor existing prior to the
date hereof as to Charter, Bylaws, Resolutions and incumbency of
officers executing this Amendment Agreement, and, with respect to the
Borrowers, the Notes, the Pledge Agreements and the Security
Instruments;
(iv) Notes executed by the Borrowers in the
form of Exhibit E to the Agreement;
(v) Executed Pledge Agreements from the
Borrowers and any domestic Subsidiaries in form acceptable to the
Lenders;
(vi) Executed Security Instruments from the Borrowers
and certain of the Guarantors in the form acceptable to the Lenders and
UCC-1 financing statements and other foreign security filings, if any,
executed in connection therewith;
(vii) 100% of all the capital stock of all
domestic Significant Subsidiaries, along with executed stock powers;
(viii) 65% of all the capital stock of all first tier
foreign Significant Subsidiaries, along with executed stock powers, in
the case of IVAX's foreign Significant Subsidiaries and 100% of all the
capital stock of all foreign Significant Subsidiaries, along with
executed stock powers, in the case of IVAX BV and NHL's foreign
Significant Subsidiaries, other than Galena s.a.;
(ix) Executed Guarantees by all Guarantors in the
forms of Exhibit G to the Agreement;
19
(x) Resolutions of the Board of Directors of each
Guarantor with respect to the approval of the Security Instruments,
and, in the case of additional Guarantors, the Guarantees and the
transactions contemplated thereby;
(xi) a certificate of the Secretary or Assistant
Secretary of the each Guarantor as to Charter, Bylaws,
Resolutions and incumbency of officers executing Guarantees or
Security Instruments;
(xii) opinions of domestic and foreign counsel
(including English, Irish and Dutch counsel) to the Borrowers and the
Guarantors in forms reasonably acceptable to counsel for the
Administrative Agent;
(xiii) payment of an amendment fee to each of the
Lenders in the amount of 30 basis points of the Total
Revolving Credit Commitment;
(xiv) a new Schedule 7.01(d) (Significant
Subsidiaries), Schedule 1.01 (Guarantors), Schedule 9.04
(Indebtedness), 9.07(ii)(Loans and Advances), 7.01(g)(Liens) and
7.01(e)(Investments) each of which shall be satisfactory to the
Lenders;
(xv) Notice of Appointment of Authorized
Officers by IVAX BV;
(xvi) payment of fees to the Agents;
(xvii) copies of the Management Letter dated
December 31, 1995; and
(xviii) such other instruments and documents as the
Administrative Agent or any Lender may reasonably request.
9. CONDITIONS SUBSEQUENT.
(a) Not later than 45 days after the date hereof, the
Borrowers shall cause to be delivered to the Administrative Agent such
instruments and documents as may be necessary to perfect in the Administrative
Agent for the benefit of the Lenders a valid first Lien on the following real
property together with such other instruments and documents as the
Administrative Agent may require:
Zenith Laboratories Northvale, New Jersey
XxXxx Industries, Inc. Irvine, California
Xxxxxxx Products Chicago, Illinois
IVAX Corporation Miami, Florida
20
(b) The Administrative Agent shall receive not later than 45
days after the date hereof UCC-11 lien search results, foreign lien search
results and intellectual property search results on the Borrowers and all
Guarantors confirming the absence of Liens other than as permitted by the
Agreement and Security Instruments.
10. WAIVER OF DEFAULTS. The Lenders hereby waive the occurrence of an
Event of Default under (i) Sections 9.02 and 9.03 of the Agreement so long as
the temporary amendments set forth in clause (e) of paragraph 2 hereof are in
effect and (ii) Section 9.05 of the Agreement through the date hereof with
respect to the existence of a lien on personal property of Xxxxx Xxxxxx
Pharmaceuticals, Inc. Except as specifically waived, by execution of this
Amendment Agreement neither the Administrative Agent nor the Lenders shall be
deemed to have waived any other Default or Event of Default. This Amendment
Agreement shall not be deemed or construed to limit or impair any rights or
remedies of the Administrative Agent and the Lenders under the Agreement or any
of the other Loan Documents.
11. MISCELLANEOUS.
(a) All instruments and documents incident to the consummation
of the transactions contemplated hereby shall be satisfactory in form and
substance to the Administrative Agent and its counsel.
(b) This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition, represen
tation or warranty. Each of the parties hereto acknowledges that, except as in
this Agreement otherwise expressly stated, no representations, warranties or
commitments, express or implied, have been made by any other party to the other.
None of the terms or conditions of this Amendment Agreement may be changed,
modified, waived or canceled orally or otherwise, except by writing, signed by
all the parties hereto, specifying such change, modification, waiver or
cancellation of such terms or conditions, or of any preceding or succeeding
breach thereof. The Borrowers acknowledge that time is of the essence insofar as
fulfillment of their obligations hereunder.
(c) Except as hereby specifically amended, modified or
supplemented, the terms of the Agreement and all of the other Loan
Documents are hereby confirmed and ratified in all respects and
21
shall remain in full force and effect according to their respective
terms.
(d) This Amendment 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 Amendment
Agreement to produce or account for more than one fully-executed counterpart.
(e) The Administrative Agent shall receive not later
than ten (10) Business Days following the transfer of the assets of
Norton (Waterford) Limited to IVAX B.V. a security interest from
IVAX B.V. in all of such assets that were formerly owned by Norton
(Waterford) Limited together with a pledge of all of the
outstanding equity interest of IVAX B.V. in Norton Healthcare Ltd.
(f) This Amendment Agreement shall be construed in
accordance with the internal laws and judicial decisions of the
State of Florida.
[Signature pages follow]
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers, all as of the day and year
first above written.
WITNESS: IVAX CORPORATION
Xxxxx X. Xxxxxx
____________________________________
By: /s/ Xxxxxx Xxxxx
_______________________
Name: XXXXXX XXXXX
_____________________
Title: Treasurer
____________________
WITNESS: NORTON HEALTHCARE LIMITED
Xxxxx X. Xxxxxx
____________________________________
By: /s/ Xxxxxxx X. Xxxxxxxxx
_______________________
Name: Xxxxxxx X. Xxxxxxxxx
_____________________
Title: Attorney-in-fact
_____________________
WITNESS: IVAX INTERNATIONAL, BV
Xxxxx X. Xxxxxx
____________________________________
By: /s/ Xxxxxx Xxxxx
_______________________
Name: Xxxxxx Xxxxx
_____________________
Title: Attorney-in-fact
____________________
NATIONSBANK, National Association
as Administrative Agent for the Lenders
By: /s/ Xxxxxx X. Xxxxxxxx
______________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
NATIONSBANK, National Association
By: /s/ Xxxxxx X. Xxxxxxxx
_______________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
BANK OF AMERICA ILLINOIS, as Lender
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
____________________________________
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Vice President
ABN AMRO BANK N.V.
By: ABN AMRO NORTH AMERICAN, INC.,
as Co-Agent
By: /s/ Xxxx Xxxxxx
__________________________________
Name: Xxxx Xxxxxx
_______________________________
Title: Group Vice President
By: /s/ Xxxxxxx Xxx Xxxxxx
__________________________________
Name: Xxxxxxx Xxx Xxxxxx
_______________________________
Title: Vice President
CITICORP USA, as Co-Agent
By: /s/ Xxxxxx Xxxxxx
_______________________________
Name: Xxxxxx Xxxxxx
__________________________
Title: Vice President
_________________________
XXXXXXX BANK OF SOUTH FLORIDA, N.A.
By: /s/ Xxxxxxxxx Xxxxxxxx
_______________________________
Name: Xxxxxxxxx Xxxxxxxx
__________________________
Title: Vice President
_________________________
THE BANK OF NEW YORK
By: /s/ Xxxxx X. Xxxxxx
_______________________________
Name: Xxxxx X. Xxxxxx
__________________________
Title: Assistant Vice President
_________________________
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxx X. Xxxxxxx
_______________________________
Name: Xxxxx X. Xxxxxxx
__________________________
Title: Relationship Manager
_________________________
SCOTIABANK (U.K.) LIMITED
By: /s/ X.X. Xxxxxxx
_______________________________
Name: X.X. Xxxxxxx
__________________________
Title: Relationship Manager
_________________________
THE BANK OF TOKYO-MITSUBISHI TRUST CO.
By: /s/ Xxxxxxxx Xxxxxx
_______________________________
Name: Xxxxxxxx Xxxxxx
__________________________
Title: Vice President and Manager
_________________________
XXXXXXXXXXX XX, XXXXXXX AGENCY
By: /s/ Xxxxx X. Xxxxxx
_______________________________
Name: Xxxxx X. Xxxxxx
__________________________
Title: Vice President
_________________________
By: /s/ Xxxx X. Xxxxx
_______________________________
Name: Xxxx X. Xxxxx
__________________________
Title: Assistant Vice President
_________________________
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxxxxxx
_______________________________
Name: Xxxxxx Xxxxxxxxx
__________________________
Title: Senior Vice President
_________________________
CREDIT LYONNAIS ATLANTA AGENCY
By: /s/ Xxxxxx Xxxxxxxxx
_______________________________
Name: Xxxxxx Xxxxxxxxx
__________________________
Title: Senior Vice President
_________________________
DEUTSCHE BANK AG NEW YORK BRANCH
and/or CAYMAN ISLANDS BRANCH
By: /s/ Xxxx Xxxxxxx
_______________________________
Name: Xxxx Xxxxxxx
__________________________
Title: Assistant Vice President
_________________________
By: /s/ Xxxxxxx X. Xxxxxxxxx
_______________________________
Name: Xxxxxxx X. Xxxxxxxxx
__________________________
Title: Vice President
_________________________
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxxx X. Xxxxxxx
_______________________________
Name: Xxxxxx X. Xxxxxxx
__________________________
Title: Corporate Banking Officer
_________________________
THE INDUSTRIAL BANK OF JAPAN, LTD.,
ATLANTA AGENCY
By: /s/ Xxxxx Xxxx
_______________________________
Name: Xxxxx Xxxx
__________________________
Title: General Manager
_________________________
THE SAKURA BANK, LIMITED
ATLANTA AGENCY
By: /s/ Xxxxxxxx Xxxxxxxx
_______________________________
Name: Xxxxxxxx Xxxxxxxx
__________________________
Title: V.P. & Senior Manager
_________________________
THE SUMITOMO BANK, LIMITED, ATLANTA
AGENCY
By: /s/ Xxxxxxxx Xxxxxxxxx
_______________________________
Name: Xxxxxxxx Xxxxxxxxx
__________________________
Title: Joint General Manager
_________________________
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By: /s/ Xxxxxx X. Xxxxxx
_______________________________
Name: Xxxxxx X. Xxxxxx
__________________________
Title: Vice President
_________________________
By: /s/ Xxx Xxxxx
_______________________________
Name: Xxx Xxxxx
__________________________
Title: Vice President & Manager
_________________________
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxxx X. Xxxxxxx
_______________________________
Name: Xxxx X. Xxxxxxx
__________________________
Title: Director
_________________________
NATIONAL WESTMINSTER BANK PLC,
By: /s/ J. Brett
_______________________________
Name: J. Brett
__________________________
Title: Senior Corporate Manager
_________________________
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
_______________________________
Name: Xxxxxxx X. Xxxxxx
__________________________
Title: Assistant Vice President
_________________________
