exv10w1



 






Exhibit 10.1




THIRD AMENDMENT TO CREDIT AND SECURITY AGREEMENT




     This Amendment, dated as of October 27, 2005, is made by and between ZILA NUTRACEUTICALS,
INC., an Arizona corporation (“ZN”), ZILA BIOTECHNOLOGY, INC., an Arizona corporation (“ZB”), ZILA
PHARMACEUTICALS, INC., a Nevada corporation (“ZP”), ZILA SWAB TECHNOLOGIES, INC., an Arizona
corporation (“ZS”), (collectively, jointly and severally the “Borrower”), and WELLS FARGO BANK,
NATIONAL ASSOCIATION, acting through its WELLS FARGO BUSINESS CREDIT operating division (the
“Lender”).



Recitals




     The Borrower and the Lender are parties to a Credit and Security Agreement dated as of
February 6, 2004, as amended from time to time (the “Credit Agreement”). Capitalized terms used in
these recitals have the meanings given to them in the Credit Agreement unless otherwise specified.



     The Borrower has requested that certain amendments be made to the Credit Agreement, which the
Lender is willing to make pursuant to the terms and conditions set forth herein.



     NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements
herein contained, it is agreed as follows:



     1. Amendments. The Credit Agreement is hereby amended as follows:




	 	(a)	 	Sections 6.2(a) through 6.2(c) are hereby deleted and replaced as follows:
	 
	 	 	 	(a) Quarterly Net Worth. The Borrower covenants that as of
July 31, 2005, the Guarantor had a Book Net Worth of not less
than $51,721,950.00. The Borrower covenants that, commencing
with the fiscal quarter ending October 31, 2005 and
continuing each quarter thereafter, the Guarantor shall not
achieve a Book Net Worth decrease of more than the amounts
set forth below as measured from the last day of the
immediately preceding fiscal year.





	 	 	 	 	 
	Quarter Ending	 	Maximum Net Worth Decrease	 
	October 31, 2005
	 	 	($7,820,000.00	)
	January 31, 2006
	 	 	($11,820,000.00	)
	April 30, 2006
	 	 	($11,820,000.00	)
	July 31, 2006
	 	 	($14,570,000.00	)







	 	 	 	(b) Monthly Net Worth. The Borrower covenants that
commencing with the month ending July 31, 2005 and continuing
on the last day of each month thereafter, the Guarantor’s
Book Net Worth as of the last day of each such month shall
not be less than the amounts set forth below:





	 	 	 	 	 
	July, 2005
	 	$	39,000,000.00	 
	August, 2005 through October, 2005
	 	$	44,000,000.00	 
	November, 2005 through January, 2006
	 	$	40,000,000.00	 






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	February, 2006 through April, 2006
	 	$	40,000,000.00	 
	May, 2006 through July, 2006
	 	$	37,250,000.00	 







	 	 	 	(c) Capital Expenditures. The Borrower and the Guarantor
together will not incur or contract to incur Capital
Expenditures of more than $3,500,000.00 in the aggregate
during 2006 fiscal year.






     (b) Exhibit B of the Credit Agreement is hereby deleted and replaced with Exhibit B
attached hereto.



     2. No Other Changes. Except as explicitly amended by this Amendment, all of
the terms and conditions of the Credit Agreement shall remain in full force and effect and shall
apply to any advance or letter of credit thereunder.



     3. Conditions Precedent. This Amendment shall be effective when the Lender
shall have received an executed original hereof, together with each of the following, each in
substance and form acceptable to the Lender in its sole discretion:




     (a) The Acknowledgment and Agreement of Guarantor set forth at the end of this
Amendment, duly executed by the Guarantor and Subordinated Creditor.




     (b) A Certificate of the Secretary of the Borrower certifying as to (i) the
resolutions of the board of directors of the Borrower approving the execution and delivery of this
Amendment, (ii) the fact that the articles of incorporation and bylaws of the Borrower, which were
certified and delivered to the Lender pursuant to the Certificate of Authority of the Borrower’s
secretary or assistant secretary dated as of February 6, 2004 continue in full force and effect and
have not been amended or otherwise modified except as set forth in the Certificate to be delivered,
and (iii) certifying that the officers and agents of the Borrower who have been certified to the
Lender, pursuant to the Certificate of Authority of the Borrower’s secretary or assistant secretary
dated as of February 6, 2004, as being authorized to sign and to act on behalf of the Borrower
continue to be so authorized or setting forth the sample signatures of each of the officers and
agents of the Borrower authorized to execute and deliver this Amendment and all other documents,
agreements and certificates on behalf of the Borrower.




     (c) Such other matters as the Lender may require.



     4. Representations and Warranties. The Borrower hereby represents and
warrants to the Lender as follows:




     (a) The Borrower has all requisite power and authority to execute this Amendment and
to perform all of its obligations hereunder, and this Amendment has been duly executed and
delivered by the Borrower and constitutes the legal, valid and binding obligation of the Borrower,
enforceable in accordance with its terms.




     (b) The execution, delivery and performance by the Borrower of this Amendment has
been duly authorized by all necessary corporate action and do not (i) require any authorization,
consent or approval by any governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (ii) violate any provision of any law, rule or regulation or
of any order, writ, injunction or decree presently in effect, having applicability to the Borrower,
or the articles of incorporation or by-laws of the Borrower, or (iii) result in a breach of or
constitute a default under any indenture or loan or credit agreement or any other agreement, lease
or instrument to which the Borrower is a party or by which it or its properties may be bound or
affected.



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     (c) All of the representations and warranties contained in Article V of the Credit
Agreement are correct on and as of the date hereof as though made on and as of such date, except to
the extent that such representations and warranties relate solely to an earlier date.



     5. References. All references in the Credit Agreement to “this Agreement”
shall be deemed to refer to the Credit Agreement as amended hereby; and any and all references in
the Security Documents to the Credit Agreement shall be deemed to refer to the Credit Agreement as
amended hereby.



     6. No Waiver. The execution of this Amendment and acceptance of any
documents related hereto shall not be deemed to be a waiver of any Default or Event of Default or
Default Period under the Credit Agreement or breach, default or event of default under any Security
Document or other document held by the Lender, whether or not known to the Lender and whether or
not existing on the date of this Amendment.



     7. Release. The Borrower and each Guarantor by signing the Acknowledgment
and Agreement of Guarantor each hereby absolutely and unconditionally releases and forever
discharges the Lender, and any and all participants, parent corporations, subsidiary corporations,
affiliated corporations, insurers, indemnitors, successors and assigns thereof, together with all
of the present and former directors, officers, agents and employees of any of the foregoing, from
any and all claims, demands or causes of action of any kind, nature or description, whether arising
in law or equity or upon contract or tort or under any state or federal law or otherwise, which the
Borrower or such Guarantor has had, now has or has made claim to have against any such person for
or by reason of any act, omission, matter, cause or thing whatsoever arising from the beginning of
time to and including the date of this Amendment, whether such claims, demands and causes of action
are matured or unmatured or known or unknown.



     8. Costs and Expenses. The Borrower hereby reaffirms its agreement under
the Credit Agreement to pay or reimburse the Lender on demand for all costs and expenses incurred
by the Lender in connection with the Loan Documents, including without limitation all reasonable
fees and disbursements of legal counsel. Without limiting the generality of the foregoing, the
Borrower specifically agrees to pay all fees and disbursements of counsel to the Lender for the
services performed by such counsel in connection with the preparation of this Amendment and the
documents and instruments incidental hereto. The Borrower hereby agrees that the Lender may, at
any time or from time to time in its sole discretion and without further authorization by the
Borrower, make a loan to the Borrower under the Credit Agreement, or apply the proceeds of any
loan, for the purpose of paying any such fees, disbursements, costs and expenses.



     9. Miscellaneous. This Amendment and the Acknowledgment and Agreement of
Guarantor may be executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original and all of which counterparts, taken together, shall
constitute one and the same instrument.



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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the date first written above.



	 	 	 	 	 
	 	ZILA NUTRACEUTICALS, INC., an Arizona corporation

 	 
	 	By  	/s/    Andrew A. Stevens
 	 
	 	 	 	 
	 	 	Its Vice President and Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	ZILA BIOTECHNOLOGY, INC., an Arizona corporation

 	 
	 	By  	/s/    Andrew A. Stevens
 	 
	 	 	 	 
	 	 	Its Vice President and Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	ZILA PHARMACEUTICALS, INC., a Nevada corporation

 	 
	 	By  	/s/    Andrew A. Stevens
 	 
	 	 	 	 
	 	 	Its Vice President and Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	ZILA SWAB TECHNOLOGIES, INC., an Arizona corporation

 	 
	 	By  	/s/    Andrew A. Stevens
 	 
	 	 	 	 
	 	 	Its Vice President and Chief Financial Officer 	 



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	 	WELLS FARGO BANK, NATIONAL
ASSOCIATION, acting through its

Wells Fargo Business Credit operating division

 	 
	 	By  	/s/  Darcy Della Flora
 	 
	 	 	 	 
	 	 	Its Vice President 	 



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ACKNOWLEDGMENT AND AGREEMENT OF GUARANTORS





     The undersigned, a guarantor of the indebtedness of the Borrower, as defined above (the
“Borrower”) to Wells Fargo Business Credit, Inc. (the “Lender”) pursuant to a Guaranty dated as of
February 6, 2004 (the “Guaranty”), hereby (i) acknowledges receipt of the foregoing Amendment; (ii)
consents to the terms (including without limitation the release set forth in paragraph 7 of the
Amendment) and execution thereof; (iii) reaffirms his or its obligations to the Lender pursuant to
the terms of his or its Guaranty; and (iv) acknowledges that the Lender may amend, restate, extend,
renew or otherwise modify the Credit Agreement and any indebtedness or agreement of the Borrower,
or enter into any agreement or extend additional or other credit accommodations, without notifying
or obtaining the consent of the undersigned and without impairing the liability of the undersigned
under the Guaranty for all of the Borrower’s present and future indebtedness to the Lender.



	 	 	 	 	 
	 	ZILA, INC., a Delaware corporation

 	 
	 	By  	/s/    Andrew A. Stevens
 	 
	 	 	 	 
	 	 	Its Vice President and Chief Financial Officer 	 



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Exhibit B to Credit and Security Agreement




Compliance Certificate




	 	 	 
	To:
	 	 
	 

	 	 
	 

	 	WELLS FARGO BANK, NATIONAL
ASSOCIATION, acting through its

Wells Fargo Business Credit operating division
	 

	 	 
	Date:

	 	_________, 2005
	 

	 	 
	Subject:

	 	ZILA NUTRACEUTICALS, INC., an
Arizona corporation,

ZILA BIOTECHNOLOGY, INC., an Arizona corporation,

ZILA PHARMACEUTICALS, INC., a Nevada corporation,

ZILA SWAB TECHNOLOGIES, INC., an Arizona corporation



Financial Statements





In accordance with our Credit and Security Agreement dated as of February 6, 2004 (the “Credit
Agreement”), attached are the financial statements of ZILA NUTRACEUTICALS, INC., an Arizona
corporation, ZILA BIOTECHNOLOGY, INC., an Arizona corporation, ZILA PHARMACEUTICALS, INC., a Nevada
corporation, ZILA SWAB TECHNOLOGIES, INC., an Arizona corporation (collectively, jointly and
severally the “Borrower”), as of and for ___, ___(the “Reporting Date”) and the
year-to-date period then ended (the “Current Financials”). All terms used in this certificate have
the meanings given in the Credit Agreement.




     I certify (as an officer of the Borrower, but not in my personal capacity) that the Current
Financials have been prepared in accordance with GAAP, subject to year-end audit adjustments, and
fairly present the Borrower’s financial condition and the results of its operations as of the date
thereof.


Events of Default. (Check one):



o       The undersigned does not have knowledge of the
occurrence of a Default or Event of Default under
the Credit Agreement except as previously reported
in writing to the Lender.



o       The undersigned has knowledge of the occurrence of a
Default or Event of Default under the Credit
Agreement not previously reported in writing to the
Lender and attached hereto is a statement of the
facts with respect to thereto. The Borrower
acknowledges that pursuant to Section 2.10(d) of the
Credit Agreement, the Lender may impose the Default
Rate at any time during the resulting Default
Period.



I hereby certify to the Lender as follows:



o       The Reporting Date does not mark the end of one of
the Borrower’s fiscal quarters, hence I am
completing only paragraph ___below.



o      The Reporting Date marks the end of one of the Borrower’s fiscal quarters,
hence I am completing all paragraphs below except paragraph _.



o      The Reporting Date marks the end of the Borrower’s fiscal year, hence I am
completing all paragraphs below.



Financial Covenants. I further hereby certify that (as an officer of the Borrower, but not
in my personal capacity) the Borrower is in compliance with the covenants set forth in Section 6(a)
through (c) of the Agreement, except as indicated below. The calculations made to determine
compliance are as follows:




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Covenant 6.2(a) Quarterly Net Worth




	 	 	 	 	 	 	 	 	 
	Quarter Ending	 	Maximum Net Worth Decrease	 	 	Actual	 
	October 31, 2005
	 	 	($7,820,000.00	)	 	 	 	 
	January 31, 2006
	 	 	($11,820,000.00	)	 	 	 	 
	April 30, 2006
	 	 	($11,820,000.00	)	 	 	 	 
	July 31, 2006
	 	 	($14,570,000.00	)	 	 	 	 






Covenant 6.2(b) Monthly Net Worth




	 	 	 	 	 	 	 	 	 
	Month Ending	 	Minimum Net Worth Required	 	 	Actual	 
	July, 2005
	 	 	$39,000,000.00	 	 	 	 	 
	August, 2005 through October,
2005
	 	 	$44,000,000.00	 	 	 	 	 
	November, 2005 through
January, 2006
	 	 	$40,000,000.00	 	 	 	 	 
	February, 2006 through April,
2006
	 	 	$40,000,000.00	 	 	 	 	 
	May, 2006 through July, 2006
	 	 	$37,250,000.00	 	 	 	 	 






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Covenant 6.2(c) Capital Expenditures




	 	 	 	 	 	 	 	 	 
	Year	 	Maximum Allowable Capital Expenditures	 	 	Actual	 
	2006
	 	$3,500,000.00	 	 	 	 	 






     Attached hereto are all relevant facts in reasonable detail to evidence, and the computations
of the financial covenants referred to above.



	 	 	 	 	 
	 	ZILA NUTRACEUTICALS, INC., an Arizona corporation

 	 
	 	By  	 	 
	 	 	 	 
	 	 	Its 	 
	 



	 	 	 	 	 
	 	ZILA BIOTECHNOLOGY, INC., an Arizona corporation

 	 
	 	By  	 	 
	 	 	 	 
	 	 	Its 	 
	 



	 	 	 	 	 
	 	ZILA PHARMACEUTICALS, INC., a Nevada corporation

 	 
	 	By  	 	 
	 	 	 	 
	 	 	Its 	 
	 



	 	 	 	 	 
	 	ZILA SWAB TECHNOLOGIES, INC., an Arizona corporation

 	 
	 	By  	 	 
	 	 	 	 
	 	 	Its 	 
	 




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