Confidential Treatment has been requested for portions of this
agreement. Those portions have been marked [Redacted].
EXHIBIT 10.8
FIRST AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT
FIRST AMENDMENT (the "First Amendment") entered into as of November 1,
2002 by and among HI-TECH PHARMACAL CO., INC. (the "Company") and [Redacted]
(the "Guarantor"), each a Delaware corporation, with its principal place of
business at 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxx 00000 and FLEET NATIONAL
BANK, a national banking association, having a place of business located at 000
Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 (the "Bank").
WHEREAS, the Borrower, the Guarantor and the Bank are parties to a
Revolving Credit and Term Loan Agreement dated as of October 23, 2002, as same
may be hereafter amended and modified (the "Agreement"); and
WHEREAS, the Borrower and the Guarantor have requested that the Bank
amend, and the Bank has agreed to amend a provision of the Agreement.
NOW, THEREFORE, the parties hereto hereby agree as folows:
1. All capitalized terms used herein, unless otherwise defined herein,
have the same meanings provided therefor in the Agreement.
2. The Agreement is hereby amended by deleting Section 5.9(c) and
substituting the following therefor:
"(c) A minimum Tangible Net Worth of at least $12,500,000.00 as at
July 31, 2002 ("Base TNW") and as at October 31, 2002 and as at the end
of each quarter thereafter an amount equal to the Base TNW increased by
an amount equal to 75% of the net income of the Company for the prior
fiscal quarter(s) since July 31, 2002."
3. The Borrower and the Guarantor hereby represent and warrant to the
Bank that:
(a) There are no defenses or offsets to their respective
obligations under the Agreement, the Notes, or the Loan Documents, and if any
such defenses or offsets exist, the same are hereby waived.
(b) Each and every of the representations and warranties set forth
in the Agreement is true as of the date hereof and with the same effect as
though made on the date hereof, and is hereby incorporated herein in full by
reference as if fully restated herein in its entirety.
(c) No Default or Event of Default and no event or condition
which, with the giving of notice or lapse of time or both, would constitute such
a Default or Event of Default, now exists or would exist after giving effect
hereto.
4. It is expressly understood and agreed that all collateral security
for the Loans and other extensions of credit set forth in the Agreement prior to
the amendment provided for herein is and shall continue to be collateral
security for the Loans and other extensions of credit provided in the Agreement
as herein amended. Without limiting the generality of the foregoing, the
Borrower and the Guarantor hereby absolutely and unconditionally confirm that
each document and instrument executed by them pursuant to the Agreement
continues in full force and effect, is ratified and confirmed and is and shall
continue to be applicable to the Agreement (as herein amended).
5. The amendments set forth herein are limited precisely as written
and shall not be deemed to (a) be a consent to or a waiver of any other term or
condition of the Agreement or any of the documents referred to therein, or (b)
prejudice any right or rights which the Bank may now have or may have in the
future under or in connection with the Agreement or any documents referred to
therein. Whenever the Agreement is referred to in the Agreement or any of the
instruments, agreements or other documents or papers executed and delivered in
connection therewith, it shall be deemed to mean the Agreement as modified by
this First Amendment.
6. The Borrower agrees to pay on demand, and the Bank may charge any
deposit or loan account(s) of the Borrower, for all reasonable expenses
(including reasonable attorneys fees) incurred by the Bank in connection with
the negotiation, preparation and administration of the Agreement as amended
hereby.
7. This First Amendment is dated as of November 1, 2002 and shall be
effective on the date of execution by the Bank retroactive to October 23, 2002.
8. This First Amendment may be executed in counterparts, each of which
shall constitute an original, and each of which taken together shall constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this First
Amendment the year and date first above written.
HI-TECH PHARMACAL CO., INC.
By: /s/ Xxxxx Xxxxxxx
--------------------
Xxxxx Xxxxxxx
President
[REDACTED]
By: /s/ Xxxxx Xxxxxxx
--------------------
Xxxxx Xxxxxxx
President
FLEET NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxx
--------------------
Xxxxxxx X. Xxxxxx
Vice President
State of New York, County of ,ss:
On the ____ day of November, in the year 2002, before me the
undersigned, personally appeared XXXXX XXXXXXX, personally known to me or proved
to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity, and that by his signature on the instrument, the
individual or the person upon behalf of which the individual acted, executed the
instrument.
/s/ Xxxxxxx X. Xxx
--------------------------
Notary Public
XXXXXXX X. XXX
Notary Public, State of New York
No. 02AS6031315
Qualified in Xxxxxx County
Commission Expires Sept. 27, 2005
2
