EXHIBIT 10.95
SECOND AMENDMENT TO CREDIT AGREEMENT
This Second Amendment to Credit Agreement, dated as of
December 31, 2004, (this "AMENDMENT") among the financial institutions from time
to time parties hereto (such financial institutions, together with their
respective successors and assigns, are referred to hereinafter each individually
as a "LENDER" and collectively as the "LENDERS"), Bank of America, N.A. with an
office at 000 Xxxxxxxx Xxxxxxx, X.X., Xxxxx 000, Xxxxxxx, XX 00000, as agent for
the Lenders (in its capacity as agent, the "AGENT"), Andrx Corporation, a
Delaware corporation, with offices 0000 Xxxxxx Xxxx, 0xx Xxxxx, Xxxxxxxxxx, XX
00000 (the "PARENT GUARANTOR"), and each of the Parent Guarantor's Subsidiaries
identified on the signature pages hereof as the Borrowers and each of the Parent
Guarantor's other Subsidiaries identified on the signature pages hereof as the
Guarantors.
RECITALS:
WHEREAS, the Agent, the Lenders, the Borrowers, and the
Guarantors are parties to that certain Credit Agreement dated as of December 30,
2002, as amended by that certain First Amendment and Waiver dated February 24,
2003 (as amended, restated, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT"; capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the Credit
Agreement); and
WHEREAS, the Borrowers have requested that the Credit
Agreement be amended and modified, all as set forth herein; and
WHEREAS, the Agent and the Lenders have agreed to such
amendment of the Credit Agreement pursuant to the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. AMENDMENT TO SECTION 7.23 OF THE CREDIT AGREEMENT.
SECTION 7.23 of the Credit Agreement, CAPITAL EXPENDITURES, is
hereby amended and modified by deleting the reference to "$92,000,000" in the
first line of the second column for the 2004 Fiscal Year in the table set forth
in such Section and by substituting "$97,000,000" in lieu thereof.
SECTION 2. NO OTHER AMENDMENT OR WAIVER.
The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided in Section 1 of this Amendment, operate
as an amendment to or waiver of any right, power or remedy of the Agent or the
Lenders under the Credit Agreement or any of the other Loan Documents, nor
constitute a waiver of any provision of the Credit Agreement or any of the other
Loan Documents. Except for the amendments expressly set forth in Section 1 of
this Amendment, the text of the Credit Agreement and all other Loan Documents
shall remain unchanged and in full force and effect and each Borrower Party
hereby ratifies and confirms its respective obligations thereunder. This
Amendment shall not constitute a modification of the Credit Agreement or a
course of dealing with the Agent or the Lenders at variance with the Credit
Agreement such as to require further notice by the Agent or the Lenders to
require strict compliance with the terms of the Credit Agreement and the other
Loan Documents in the future, except as expressly set forth herein. Each
Borrower Party acknowledges and expressly agrees that the Agent and the Lenders
reserve the right to, and do in fact, require strict compliance with all terms
and provisions of the Credit Agreement and the other Loan Documents. The
Borrower Parties have no knowledge of any challenge to the Agent's or the
Lenders' claims arising under the Loan Documents or the effectiveness of the
Loan Documents.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
In consideration of the agreement of the Agent and the Lenders
to amend the Loan Agreement, each Borrower Party hereby represents and warrants
to the Agent and the Lenders as of the date hereof as follows:
3.1 DUE AUTHORIZATION; ENFORCEABILITY. Each Borrower Party has the
power and authority to execute, deliver and perform this Amendment. Each
Borrower Party has taken all necessary action (including obtaining approval of
its stockholders if necessary) to authorize its execution, delivery, and
performance of this Amendment. This Amendment has been duly executed and
delivered by each Borrower Party, and constitutes the legal, valid and binding
obligations of such Borrower Party, enforceable against it in accordance with
its terms.
3.2 AFFIRMATION OF BINDING OBLIGATIONS. All Loan Documents (as the same
may be amended, restated, supplemented or otherwise modified from time to time)
including, without limitation, the Credit Agreement, the Revolving Loan Note,
the Security Agreement, the Parent Guaranty, the Subsidiary Guaranty, the
Mortgages, the Patent and Trademark Security Agreement, the Pledge Agreement and
each of the other Loan Documents constitute valid and legally binding
obligations of the Borrower Parties, as applicable, enforceable against the
Borrower Parties in accordance with the terms thereof and as heretofore amended
and as amended by Section 1 hereof.
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3.3 NO DEFAULT OR EVENT OF DEFAULT. No Default or Event of Default
exists.
SECTION 4. COVENANTS AND AGREEMENTS.
In order to induce the Agent and the Lenders to amend the
Credit Agreement, each Borrower Party hereby covenants and agrees with the Agent
and the Lenders as follows, and, unless otherwise indicated, such covenants and
agreements shall expressly survive the Termination Date hereof:
4.1 EXPENSES. The Borrower Parties agree to pay on demand all
reasonable costs and expenses in connection with the preparation, execution,
delivery, administration, modification and amendment of this Amendment and the
other instruments and documents to be delivered hereunder, including, without
limitation, the reasonable fees and expenses of counsel for the Agent with
respect thereto and with respect to advising the Agent as to its rights and
responsibilities hereunder and thereunder.
SECTION 5. MISCELLANEOUS.
5.1 ACKNOWLEDGMENT OF VALIDITY AND ENFORCEABILITY OF LOAN DOCUMENTS.
Each Borrower Party expressly acknowledges and agrees that the Credit Agreement
and other Loan Documents are valid and enforceable by the Agent and the Lenders,
and expressly confirms, ratifies and reaffirms that the respective Loan
Documents to which each is a party, secure the full amount of the Obligations of
the Borrowers under the Credit Agreement and other Loan Documents, free and
clear of all defenses, offsets and counterclaims of any kind or nature.
5.2 CONDITIONS PRECEDENT. This Amendment shall become effective and be
deemed effective as of the date hereof, upon the occurrence of each of the
following, to the satisfaction of the Agent and the Required Lenders:
(a) This Amendment shall have been duly executed and delivered
by each Borrower Party and the Required Lenders; and
(b) The Agent shall have received such other documents as the
Agent may request.
5.3 SECTION TITLES. The section titles contained in this Amendment are
included for the sake of convenience only, shall be without substantive meaning
or content of any kind whatsoever, and are not a part of the agreement between
the parties.
5.4 SEVERABILITY. The illegality or unenforceability of any provision
of this Amendment or any instrument or agreement required hereunder shall not in
any way
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affect or impair the legality or enforceability of the remaining provisions of
this Amendment or any instrument or agreement required hereunder.
5.5 ENTIRE AGREEMENT. This Amendment constitutes the entire agreement
and understanding between the parties hereto with respect to the transactions
contemplated hereby and supersedes all prior negotiations, understandings and
agreements between such parties with respect to such transactions. This
Amendment shall constitute a Loan Document for all purposes.
5.6 APPLICABLE LAW. This Amendment shall be interpreted and the rights
and liabilities of the parties hereto determined in accordance with the internal
laws (as opposed to the conflict of laws provisions provided that perfection
issues with respect to Article 9 of the UCC may give effect to applicable choice
or conflict of law rules set forth in Article 9 of the UCC) of the State of
Georgia; PROVIDED that the Agent and the Lenders shall retain all rights arising
under federal law.
5.7 CONSULTATION WITH COUNSEL. Each Borrower Party represents to the
Agent and the Lenders that it has discussed this Amendment with its counsel.
5.8 REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. Upon the
effectiveness of this Amendment, on and after the date hereof each reference in
the Credit Agreement to "this Agreement," "hereunder," "hereof" or words of like
import referring to the Credit Agreement, and each reference in the other Loan
Documents to "the Credit Agreement," "thereunder," "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as heretofore amended and as amended by Section 1 hereof.
5.9 COUNTERPARTS. This Amendment may be executed in any number of
counterparts, and by the Agent, each Lender, and each Borrower Party in separate
counterparts, each of which shall be an original, but all of which shall
together constitute one and the same agreement; signature pages may be detached
from multiple separate counterparts and attached to a single counterpart so that
all signature pages are physically attached to the same document.
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IN WITNESS WHEREOF, the parties have entered into this
Amendment on the date first above written.
BORROWERS:
ANDA, INC., a Florida corporation
By:
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Title:
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ANDA PHARMACEUTICALS, INC., a Florida
corporation
By:
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Title:
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ANDRX LABORATORIES, INC., a Mississippi
corporation
By:
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Title:
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ANDRX LABS, LLC, a Delaware limited
liability company
By:
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Title:
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ANDRX MANAGEMENT CORPORATION, formerly
known as Anda Sales, Inc., a Florida
corporation
By:
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Title:
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SECOND AMENDMENT TO CREDIT AGREEMENT
S-1
ANDRX PHARMACEUTICALS EQUIPMENT #1, LLC,
a Florida limited liability company
By:
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Title:
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ANDRX PHARMACEUTICALS, INC., a Florida
corporation
By:
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Title:
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ANDRX PHARMACEUTICALS, LLC, a Delaware
limited liability company
By:
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Title:
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ANDRX PHARMACEUTICALS (NC), INC., a
Florida corporation
By:
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Title:
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VALMED PHARMACEUTICAL, INC., a New York
corporation
By:
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Title:
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GUARANTORS:
ANDA PUERTO RICO, INC., a Puerto Rico
corporation
By:
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Title:
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ANDRX CORPORATION, a Delaware corporation
By:
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Title:
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ANDRX LABORATORIES (NJ), INC., a Delaware
corporation
By:
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Title:
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ANDRX PHARMACEUTICALS SALES AND
MARKETING, INC., a Florida corporation
By:
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Title:
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CARAN PHARMACEUTICALS, INC., a Nevada
corporation
By:
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Title:
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CYBEAR, LLC, a Delaware limited liability
company
By:
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Title:
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S-3
SR SIX, INC., a Florida corporation
By:
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Title:
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ANDRX PHARMACEUTICALS (MASS), INC., a
Florida corporation
By:
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Title:
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ANDRX SOUTH CAROLINA I, INC. a South
Carolina corporation
By:
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Title:
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ANDRX PHARMACEUTICALS (NC), LLC, a
Delaware limited liability company
By: Andrx Pharmaceuticals (NC), Inc.,
member
By:
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Title:
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RXAPS, INC., a Florida corporation
By:
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Title:
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AGENT AND LENDERS:
BANK OF AMERICA, N.A., as the Agent and a
Lender
By:
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Title:
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CONGRESS FINANCIAL CORPORATION (CENTRAL),
as a Lender
By:
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Title:
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STANDARD FEDERAL BANK NATIONAL
ASSOCIATION, acting by and through its
agent, LaSalle Business Credit, LLC, a
Delaware limited liability company,
successor by merger to LaSalle Business
Credit, Inc., a Delaware corporation, as
a Lender
By:
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Title:
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S-7
GENERAL ELECTRIC CAPITAL CORPORATION, as
a Lender
By:
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Title:
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S-8
PNC BANK, NATIONAL ASSOCIATION as a
Lender
By:
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Title:
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S-9
THE CIT GROUP/BUSINESS CREDIT, INC., as a
Lender
By:
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Title:
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