Exhibit 4.29
XXXXXX HEALTH PRODUCTS INC. VITA HEALTH PRODUCTS INC.
000 XXXX 000XX XXXXXX 000 XXXXXX XXXXXX
XXXXXX, XXXXXXXXXX 00000 WINNIPEG, MANITOBA
March 28, 0000
Xxx Xxxx Xx Xxxx Xxxxxx,
as the U.S. Agent
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Bank Of Nova Scotia,
as the Canadian Agent
00 Xxxx Xxxxxx Xxxx -- 00xx Xxxxx
Xxxxxxx, Xxxxxxx
Xxxxxx, X0X 0X0
Each of the Lenders party to the
Credit Agreement referred to below
SECOND AMENDMENT TO WAIVER LETTER
Gentlemen and Ladies:
We refer to (a) the Amended and Restated Credit Agreement, dated as of
May 15, 1998 (as further amended, supplemented, amended and restated or
otherwise modified prior to the date hereof, the "CREDIT AGREEMENT"), among
Xxxxxx Health Products Inc., a Delaware corporation (the "U.S. BORROWER"), Vita
Health Products Inc., a Manitoba corporation (the "CANADIAN BORROWER", and
together with the U.S. Borrower, the "BORROWERS"), the various financial
institutions as are or may become parties thereto which extend a Commitment
under the U.S. Facility (collectively, the "U.S. LENDERS"), the various
financial institutions as are or may become parties thereto which extend a
Commitment under the Canadian Facility (collectively, the "CANADIAN LENDERS",
and together with the U.S. Lenders, the "LENDERS"), The Bank of Nova Scotia
("SCOTIABANK") as agent for the U.S. Lenders under the U.S. Facility (in such
capacity, the "U.S. AGENT"), Scotiabank, as agent for the Canadian Lenders under
the Canadian Facility (in such capacity, the "CANADIAN AGENT", and together with
the U.S. Agent, collectively, the "AGENTS"), Xxxxxxx Xxxxx Capital Corporation,
as Documentation Agent, and Salomon Brothers Holding Company Inc., as
Syndication Agent, and (b) the Waiver Letter, dated February 13, 2001 (the
"WAIVER LETTER"), from the Borrowers to the Agents and the Lenders (as amended
by the Amendment to Waiver Letter, dated February 23, 2001). Unless otherwise
defined in this Second Amendment to Waiver Letter (this "AMENDMENT") or the
context otherwise requires, terms used in this Amendment have the meanings
provided in the Credit Agreement or the Waiver Letter, as applicable.
The Borrowers hereby request that the Required Lenders amend the Waiver
Letter as follows:
1. Extend the waiver termination date set forth in clause (x)
of the second paragraph of the Waiver Letter from March 30, 2001 to
April 12, 2001.
2. Extend the due date for the delivery of the Business Plan
referred to in number 3 of the third paragraph of the Waiver Letter
from 4:00 p.m. on March 23, 2001 to 4:00 p.m. on April 2, 2001 (and
grant the Borrowers a corresponding extension of the payment date from
March 23, 2001 to April 2, 2001 of the additional $375,000 waiver fee
referred to in the Waiver Letter should the Borrowers fail to deliver
the Business Plan on or prior to 4:00 p.m. on April 2, 2001).
3. Extend the date of the Borrowers' meeting with the Lenders
referred to in number 4 of the third paragraph of the Waiver Letter
from March 28, 2001 to either April 5 or April 6, 2001, with the
meeting to be held in New York City.
In addition, the Borrowers hereby request that the Required Lenders
agree to lift the suspension of the Commitments set forth in clause (b)(i) of
the fourth paragraph of the Waiver Letter solely for the purpose of allowing the
U.S. Borrower to request the issuance of a Letter of Credit in a Stated Amount
not to exceed $1,600,000 in favor of Transamerica Equipment Financial Services
Corporation; PROVIDED, that the Borrowers agree to provide cash collateral to
the U.S. Issuer in an amount equal to the Stated Amount of such Letter of Credit
on terms satisfactory to the U.S. Issuer.
In consideration of the Lenders delivery of this Amendment, the
Borrowers agree that (unless otherwise agreed to by the Required Lenders,
including as to amount and application), during the period from and after the
date of this Amendment to (and including) April 12, 2001, concurrently with the
receipt by either Borrower or any of their Affiliates of any judgement,
settlement or other proceeds or amounts, however characterized, arising from or
in connection with any anti-trust claims (including the Anti-trust Litigation,
with all of the foregoing collectively referred to as the "PROCEEDS"), the U.S.
Borrower shall make, or cause to be made, a mandatory prepayment of the Loans in
the amount of the Proceeds, to be applied PRO RATA to the outstanding principal
amount of all Loans (with the amount of such prepayment being applied to the
remaining Term Loan amortization payments PRO RATA in accordance with the amount
of each such remaining Term Loan amortization payment) and the cash
collateralization of all Letters of Credit and a corresponding reduction of each
Revolving Loan Commitment Amount. Furthermore, the Borrowers acknowledge and
agree that the covenants set forth in numbers 2 and 6 of the third paragraph of
the Waiver Letter and the increased interest accrual set forth in clause
(b)(iii) of the fourth paragraph of the Waiver Letter shall each continue to
(and including) April 12, 2001.
In order to induce the Lenders to enter into this Amendment, the
Borrowers hereby represent and warrant that, both before and after giving effect
to this Amendment, all of the statements set forth in Section 7.2.1 of the
Credit Agreement are true and correct.
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This Amendment shall become effective upon the receipt by the U.S.
Agent of executed counterparts hereof by the Borrowers and the Required Lenders.
This Amendment may be executed by the parties hereto in several counterparts,
each of which shall be an original and all of which shall constitute together
but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Amendment by facsimile shall be effective as delivery of
a manually executed counterpart of this Amendment.
THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK. Except as expressly modified by this
Amendment, all of the terms and provisions of the Waiver Letter (and the
amendment thereto, dated as of February 23, 2001), the Credit Agreement and the
other Loan Documents shall remain in full force and effect. This Amendment is a
Loan Document executed pursuant to the Credit Agreement and shall be construed
and administered in accordance with all of the terms and provisions of the
Credit Agreement.
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If you are in agreement with the foregoing terms, kindly execute this
Amendment in the space provided below and deliver to the Agents an executed
counterpart of this Amendment.
Very truly yours,
XXXXXX HEALTH PRODUCTS INC.
By:
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Title:
VITA HEALTH PRODUCTS INC.
By:
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Title:
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AGREED TO AND ACCEPTED
AS OF THE DATE FIRST
ABOVE WRITTEN:
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[NAME OF LENDER]
By:
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Title:
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