EXHIBIT 10.11
SIXTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
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SIXTH AMENDMENT entered into as of April 29, 1998 between HI-TECH PHARMACAL
CO., INC. (the "Company") and FLEET BANK, N.A., successor to NatWest Bank N.A.,
formerly known as National Westminster Bank USA (the "Bank").
WHEREAS, the Company and the Bank are parties to a Revolving Credit
Agreement dated as of January 23, 1992, as amended by a First Amendment dated as
of May 1, 1992, a Second Amendment dated December 6, 1993, a Third Amendment
dated as of October 31, 1994, a Fourth Amendment dated as of January 29, 1997
and a Fifth Amendment dated as of May 21, 1997 (collectively, the "Agreement");
and
WHEREAS, the Company has requested that the Bank extend the Credit Period
to June 1, 1999 and increase the Credit, and the Bank is willing to comply with
such requests but only upon and subject to the following terms and conditions.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. The Agreement is hereby amended as follows:
(A) Section 1 of the Agreement is hereby amended to read as follows:
"1. The Credit. From time to time after the execution of this
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Agreement to and including June 1, 1999 (the "Credit Period"), the Bank, in
reliance on the representations and warranties contained herein, agrees to
extend credit to the Company by making revolving credit loans to the
Company or issuing Letters of Credit, as hereinafter defined, for the
account of the Company, in the aggregate principal amount up to but not
exceeding the lesser of $5,000,000.00 or the Borrowing Base, as hereinafter
defined (the "Credit") and Letters of Credit at
any one time outstanding shall not exceed $100,000. The obligation of the
Bank to make the Credit available is hereinafter called the "Commitment".
During the Credit Period, the Company may use the Credit by (i) borrowing,
paying and prepaying in whole or in part and reborrowing and (ii) for the
issuance of Letters of Credit, all in accordance with the terms and
conditions hereof. The Commitment and the Credit are subject to the terms
and conditions of this Agreement and the Note (Note) which evidences the
Credit. The Credit is secured by any collateral specified in the schedule
hereto (Schedule) under the heading "Collateral" and any other collateral
granted to the Bank and is guaranteed by any parties specified in the
Schedule under the heading "Guaranties". The Credit is subject to the
following terms and conditions:"
(B) In order to conform to the amendment hereinabove set forth in
paragraph (A), the Note evidencing the Credit is hereby substituted for and
replaced with the Amended and Restated Note in the form of Exhibit 1 hereto.
(C) Section 5(c) of the Agreement is hereby amended to read as
follows:
"(c) Guaranties. Become a guarantor, surety or otherwise become
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liable for the debts or other obligations of any other person, firm or
corporation, whether by agreement to purchase indebtedness, or agreement
for furnishing funds through the purchase of goods, supplies or services
(or by way of stock purchase, capital contribution, advance or loan) for
the purpose of paying or discharging the indebtedness or obligation of any
other person, firm or corporation, or otherwise, except as (i) an indorser
of instruments for the payment of
money deposited to its bank accounts for collection; (ii) indemnities and
guaranties given in connection with Permitted Encumbrances and Permitted
Borrowings; (iii) indemnities given to the Bank in connection with
indebtedness incurred to the Bank; (iv) indemnities of officers and
directors pursuant to applicable certificates of incorporation, by-laws or
resolutions of the Company's Board of Directors; (v) guarantees and
indemnities existing on the date hereof as may specified in the Schedule
under the heading "Permitted Guaranties", all in the ordinary course of
business; and (vi) a guarantee limited to $1,500,000 of principal amount of
the obligations of Marco Hi-Tech JV Ltd. to Xxxxx Brothers Xxxxxxxx & Co.
or other institutional investor or lender."
2. The Company hereby represents and warrants to the Bank that:
(A) Each and every one 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.
(B) Except as disclosed in the undertaking letter of even date, 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.
3. All capitalized terms used herein, unless otherwise defined herein,
have the same meanings provided therefor in the Agreement.
4. It is expressly understood and agreed that all collateral security for
the Credit 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 Credit and other extensions of credit provided in the Agreement
as herein amended. Without
limiting the generality of the foregoing, the Company hereby absolutely and
unconditionally confirms that (i) each document and instrument executed by the
Company 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), and (ii) the Note is hereby ratified and
confirmed and shall remain in full force and effect in accordance with its
terms.
5. By its execution of this amendment in the space provided below, the
guarantor indicated below hereby consents to this Amendment and reaffirms its
continuing liability under its guarantee, in respect of the Agreement as amended
hereby and all the documents, instruments and agreements executed pursuant
thereto or in connection therewith, without offset, defense or counterclaim (any
such offset, defense or counterclaim as may exist being hereby irrevocably
waived by such guarantor).
6. This Sixth Amendment shall become effective on such date as all of the
following conditions shall be satisfied:
(A) The Bank shall have received the Amended and Restated Note duly
executed by the Company.
(B) The Bank shall have received an officers' certificate together
with board of directors resolutions authorizing the execution and delivery of
this amendment and the Note and the borrowings thereunder.
(C) The Bank shall have received an opinion of Company counsel in form
and substance acceptable to the Bank's counsel.
(D) All legal matters incident to this Sixth Amendment shall be
satisfactory to counsel to the Bank.
7. This Sixth Amendment is dated for convenience as of April 29, 1998 and
shall be effective on the date of satisfaction of the conditions precedent
contained in paragraph 7 hereof and delivery by the Bank of an executed
counterpart hereof to the Company. This Sixth Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
8. 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 Sixth Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Sixth Amendment to
be duly executed and delivered by their respective duly authorized officers as
of the date first above written.
HI-TECH PHARMACAL CO., INC.
/s/ Xxxxxxx Xxxxxxx
By:_____________________
Xxxxxxx Xxxxxxx
President
FLEET BANK, N.A.
/s/ Xxxxxxxx X. Xxxxxxx
By:_______________________
Xxxxxxxx X. Xxxxxxx
Vice President
The guarantor indicated below hereby consents to this Sixth Amendment and
reaffirms its continuing liability under its guarantee in respect of the
Agreement as amended hereby and all the documents, instruments and agreements
executed pursuant thereto or in connection therewith, without offset, defense or
counterclaim (any such offset, defense or counterclaim as may exist being hereby
irrevocably waived by such guarantor).
ROSE LABORATORIES, INC.,
formerly known as H-T Acquisition Corp.
/s/ Xxxxxxx Xxxxxxx
By:______________________
Xxxxxxx Xxxxxxx
President
STATE OF NEW YORK )
) ss:
COUNTY OF SUFFOLK )
On the 29th day of April, 1998, before me personally came XXXXXXX XXXXXXX,
to me known, who, being by me duly sworn, did depose and say that he resides at
000 Xxxxxxxx Xxxxxx, Xxx Xxxxxxxx, Xxx Xxxx 00000; that he is the President of
HI-TECH PHARMACAL CO., INC., the corporation described in and which executed the
foregoing instrument; and that he signed his name thereto by order of the board
of directors of said corporation.
/s/ Xxxxxx X. Xxxxxxx
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Notary Public
STATE OF NEW YORK )
) ss:
COUNTY OF SUFFOLK )
On the 29th day of April, 1998, before me personally came XXXXXXXX X.
XXXXXXX, to me known, who, being by me duly sworn, did depose and say that she
resides at c/o 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx; that she is a Vice
President of FLEET BANK, N.A., the banking institution described in and which
executed the foregoing instrument; and that she signed her name thereto by order
of the board of directors of said corporation.
/s/ Xxxxxx X. Xxxxxxx
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Notary Public
STATE OF NEW YORK )
) ss:
COUNTY OF SUFFOLK)
On the 29th day of April, 1998, before me personally came XXXXXXX XXXXXXX,
to me known, who, being by me duly sworn, did depose and say that he resides at
000 Xxxxxxxx Xxxxxx, Xxx Xxxxxxxx, Xxx Xxxx 00000; that he is the President of
ROSE LABORATORIES, INC., formerly known as H-T Acquisition Corp., the
corporation described in and which executed the foregoing instrument; and that
he signed his name thereto
by order of the board of directors of said corporation.
/s/ Xxxxxx X. Xxxxxxx
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Notary Public
