Exhibit 10(ii)
NUTRAMAX PRODUCTS, INC.
0 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Dated as of: May 7, 1998
BankBoston, N.A.
Individually and as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fleet National Bank
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
National Bank of Canada
Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
The Sumitomo Bank, Limited
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Senior Debt Portfolio
c/o Xxxxx Xxxxx Management
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Re: Fifth Amendment to Revolving Credit and Term Loan Agreement
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Ladies and Gentlemen:
We refer to the Revolving Credit and Term Loan Agreement dated as of
December 30, 1996, as amended by a First Amendment to Revolving Credit and Term
Loan Agreement dated as of September 11, 1997, by a Second Amendment to
Revolving Credit and Term Loan Agreement dated as of November 26, 1997, by a
Third Amendment to Revolving Credit and Term Loan Agreement dated as of January
20, 1997
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(and effective as of September 28, 1997), and by a Fourth Amendment to
Revolving Credit and Term Loan Agreement dated as of March 31, 1998, (as so
amended, the "Loan Agreement"), among NutraMax Products, Inc. (the "Borrower"),
the banking institutions referred to therein as Banks (the "Banks") and The
First National Bank of Boston (now known as BankBoston, N.A.), as agent (the
"Agent"). Upon the terms and subject to the conditions contained in the Loan
Agreement, you agreed to make Revolving Loans and Term Loans to, and issue
Letters of Credit for the account of, the Borrower.
Terms used in this letter of agreement (the "Fifth Amendment") which are
not defined herein, but which are defined in the Loan Agreement, shall have the
same respective meanings herein as therein.
We have requested and you have agreed to make certain modifications of the
Loan Documents (collectively, the "Modifications"), and you have advised us that
you are prepared and would be pleased to make the Modifications so requested by
us on the condition that we join with you in this Fifth Amendment.
Accordingly, in consideration of these premises, the promises, mutual
covenants and agreements contained in this Fifth Amendment, and fully intending
to be legally bound by this Fifth Amendment, we hereby agree with you as
follows:
ARTICLE I
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AMENDMENTS TO LOAN AGREEMENT
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Effective as of May 7, 1998 (the "Fifth Amendment Date"), the Loan
Agreement is amended in each of the following respects:
(a) The terms "Loan Documents" and "Security Documents" shall,
wherever used in any of the Loan Documents or Security Documents, be deemed to
also mean and include this Fifth Amendment.
(b) The term "Subordinated Debt Documents" shall, whenever used in
any of the Loan Documents or Security Documents, be deemed to also mean and
include any required consents in form and substance reasonably satisfactory to
the Banks and the Agent, between the Borrower and ING, as referenced in Article
III(f)(ii) below.
(c) The term "Obligations" shall, whenever used in any of the Loan
Documents or Security Documents, be deemed to also mean and include any and all
Overadvances.
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(d) Section 2 of the Agreement is amended by inserting at the end
thereof the following a new Section 2.20:
"2.20 Notwithstanding the provisions of Sections 2.1(a), at the
Borrower's request, the Banks will make Revolving Loans to the Borrower at a
time when the debit balance in the Loan Account in respect of Revolving
Loans and Letters of Credit exceeds the Borrowing Base or which cause the
debit balance in the Loan Account in respect of Revolving Loans and Letters
of Credit to exceed the Borrowing Base (any such Loan or Loans being herein
referred to individually as an "Overadvance" and collectively as
"Overadvances"), provided that: (i)_the aggregate amount of the Overadvances
at any one time outstanding shall not exceed $2,000,000; (ii)_in no event
shall the debit balance in the Loan Account in respect of Revolving Loans
and Letters of Credit at any one time outstanding exceed the Revolving
Credit Commitments of all of the Banks; and (iii)_no Default or Event of
Default shall exist hereunder at the time any Overadvance is requested or
outstanding. Failure of the Borrower to maintain any of the foregoing
conditions (other than the condition under clause (iii) that no Default
shall exist) shall constitute an immediate Event of Default hereunder, and
shall be deemed to be a failure to perform an Obligation hereunder. The
Agent shall enter such Overadvances, along with all interest, expenses and
charges relating thereto, as debits in the Loan Account. Notwithstanding
anything contained in this Section_2 or otherwise, unless sooner demanded as
a result of the failure to meet any of the conditions set forth in
clauses_(i) through (iii) above, the Borrower shall pay all outstanding
Overadvances on or before August_31, 1998 (the "Overadvance Termination
Date").
Prior to the occurrence of an Event of Default, outstanding
Overadvances bearing interest with reference to the Base Rate shall bear
interest at the rate per annum equal to (i)_one percent (1%) plus (ii) the
rate then applicable to Base Rate Loans (e.g., the Base Rate plus the
Applicable Base Rate Margin then in effect), and outstanding Overadvances
bearing interest with reference to the Eurodollar Rate shall bear interest
at the rate per annum equal to (i)_one percent (1%) plus (ii)_ the rate then
applicable to Eurodollar Loans (e.g., the Adjusted Eurodollar Rate plus the
Applicable Eurodollar Margin). After the occurrence of any Default or Event
of Default, outstanding Overadvances shall bear interest at the default rate
otherwise applicable to the Loans pursuant to Section 2.15(a) plus one
percent (1%)."
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(e) Notwithstanding the provisions of Section 5.1(c) of the Loan
Agreement, it is agreed that during the period commencing on the Fifth Amendment
Date and ending on the Overadvance Termination Date, a Borrowing Base Report
shall be delivered to the Agent on the 15th and last day of each fiscal month
during such period, setting forth the Borrowing Base as of each such date.
(f) Section 5.5 of the Loan Agreement is amended by inserting the
following new sentence at the end thereof:
"Without limitation of the foregoing, it is agreed that the Borrower
shall meet with the Agent on at least a monthly basis, upon the Agent's request,
to discuss the financial condition of the Borrower and such other matters as the
Agent may deem pertinent."
ARTICLE II
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REPRESENTATIONS, WARRANTIES AND COVENANTS
-----------------------------------------
The Borrower hereby represents, warrants and covenants to you as follows:
(a) Representations in Loan Agreement. Each of the representations and
---------------------------------
warranties made by the Borrower to you in the Loan Agreement was true, correct
and complete when made and is true, correct and complete in all material
respects on and as of the date hereof with the same full force and effect as if
each of such representations and warranties had been made by the Borrower on the
date hereof and in this Fifth Amendment.
(b) No Defaults or Events of Default. No Default or Event of Default
--------------------------------
exists on the date of this Fourth Amendment (after giving effect to all of the
arrangements and transactions contemplated by this Fifth Amendment).
(c) Binding Effect of Documents. This Fifth Amendment has been duly
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executed and delivered to you by the Borrower and the Subsidiaries (as the case
may be) and is in full force and effect as of the date hereof, and the
agreements and obligations of the Borrower and the Subsidiaries (as the case may
be) contained herein constitute legal, valid and binding obligations of the
Borrower and the Subsidiaries (as the case may be) enforceable against them in
accordance with their terms.
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ARTICLE III
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PROVISIONS OF GENERAL APPLICATION
---------------------------------
(a) No Other Changes. Except to the extent specifically amended and
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supplemented hereby, all of the terms, conditions and the provisions of the Loan
Agreement, the Notes and each of the other Loan Documents shall remain
unmodified, and the Loan Agreement, the Notes and each of the other Loan
Documents, as amended and supplemented by this Fifth Amendment, are confirmed as
being in full force and effect.
(b) Governing Law. This Fifth Amendment is intended to take effect as a
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sealed instrument and shall be deemed to be a contract under the laws of The
Commonwealth of Massachusetts. This Fifth Amendment and the rights and
obligations of each of the parties hereto shall be governed by and interpreted
and determined in accordance with the laws of the Commonwealth of Massachusetts.
(c) Binding Effect; Assignment. This Fifth Amendment shall be binding
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upon and inure to the benefit of each of the parties hereto and their respective
successors in title and assigns.
(d) Counterparts. This Fifth Amendment may be executed in any number of
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counterparts, each of which when executed and delivered shall be deemed an
original, but all of which together shall constitute one instrument. In making
proof of this Fifth Amendment, it shall not be necessary to produce or account
for more than one counterpart hereof signed by each of the parties hereto.
(e) Conflict with Loan Agreement. If any of the terms of this Fifth
----------------------------
Amendment shall conflict in any respect with any of the terms of the Loan
Agreement or any other Loan Document, the terms of this Fifth Amendment shall be
controlling.
(f) Conditions Precedent. This Fifth Amendment shall become and be
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effective as of the Fifth Amendment Date, but only if:
(i) the form of acceptance at the end of this Fifth Amendment shall
be signed by the Borrower, each Subsidiary, the Agent and the
Majority Banks; and
(ii) the Banks and the Agent shall have received satisfactory
evidence that Internationale Nederlanden (U.S.) Capital Corporation
("ING") has provided any and all required consents to the
Modifications and, to the extent necessary, has entered into
modifications to the Subordinated Debt
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Documents in form and substance satisfactory to the Banks and the
Agent in connection therewith.
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this Fifth Amendment and return such
counterpart to the undersigned, whereupon this Fifth Amendment, as so accepted
by you, shall become a binding agreement among you and the undersigned.
Very truly yours,
The Borrower:
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NUTRAMAX PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Title: Vice President
(reminder of page intentionally left blank)
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The foregoing Fifth Amendment is hereby accepted by the undersigned
effective as of May __, 1998.
The Agent:
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BANKBOSTON, N.A. (f/k/a The First National Bank of Boston),
individually and as Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: Director
FLEET NATIONAL BANK
By: /s/ Xxx X. Xxxxx
---------------------------------
Title: Vice President
NATIONAL BANK OF CANADA
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Title: Vice President
THE SUMITOMO BANK, LIMITED
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Title: Vice President
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Title: Senior Vice President
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SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as investment advisor
By: /s/ Xxxxx X. Page
----------------------------
Title: Vice President
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CONSENT OF GUARANTORS
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Each of the undersigned has guaranteed the Obligations under (and as
defined in) the Agreement by executing separate Guaranties, each dated as of
December 30, 1996 (or, in the case of the last three signatories listed below,
as of September 11, 1997). By executing this letter, each of the Subsidiaries
hereby absolutely and unconditionally reaffirms the Guaranty to which it is a
party, and acknowledges and agrees to the terms and conditions of this letter
agreement and the Loan Agreement and the other Loan Documents as amended hereby
(including, without limitation, the making of the representations and warranties
and the performance of the covenants applicable to it herein or therein).
NUTRAMAX HOLDINGS, Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Title: Vice President
NUTRAMAX HOLDINGS II, Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Title: Vice President
OPTOPICS LABORATORIES, INC., Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Title: Vice President
FAIRTON REALTY, INC., Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Title: Vice President
ORAL CARE, INC., Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Title: Vice President
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XXXXXXXX REALTY, INC., Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Title: Vice President
POWERS PHARMACEUTICAL CORP.,
Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Title: Vice President
CERTIFIED CORP., Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Title: Vice President
ADHESIVE COATINGS, INC.,
Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Title: Vice President
ELMWOOD PARK REALTY, INC.,
Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Title: Vice President
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FIRST AID PRODUCTS, INC., Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Title: Vice President
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