Exhibit 10.35
SIXTH AMENDMENT TO CREDIT AGREEMENT
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THIS SIXTH AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of
November 6, 1998, among, MERIDIAN MEDICAL TECHNOLOGIES, INC. (as successor by
merger to Brunswick Biomedical Corporation) a Delaware corporation (the
"Borrower"), and ING (U.S.) CAPITAL CORPORATION, a Delaware corporation ("ING"),
constituting, the sole Lender under the Credit Agreement referenced below
(together with its successors and assigns, the "Lenders"), and ING in its
capacity as Agent for the Lenders.
WITNESSETH:
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RECITALS:
A. The Borrower, the Lenders and the Agent have entered into a certain
Credit Agreement, dated as of April 15, 1996 (as amended prior to the date
hereof, the "Credit Agreement"); capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in the Credit Agreement.
B. The Borrower has requested an amendment to the Credit Agreement to
increase the Revolving Credit Commitment from $6,500,000 to $8,500,000 and to
reflect a change in the financial covenants, and the Lenders have agreed to so
amend the Credit Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendment to Section 1.1. Section 1.1 of the Credit
Agreement is hereby amended by replacing the definition of "Revolving Loan
Commitment Amount" in its entirety with the following:
"Revolving, Loan Commitment Amount" means (i) for the period
commencing November 6,1998 and ending, October 31, 1999, $8,500,000,
and (ii) for the period commencing November 1, 1999 and ending on the
Revolving Loan Commitment Termination Date, $6,500,000.
SECTION 2. Amendment to Section 1.1. Section 1.1I of the Credit
Agreement is hereby amended by replacing the definition of "Eligible Inventory"
in its entirety with the following:
"Eligible Inventory" means the lower of cost or market value of the
Inventory of the Borrower and its Subsidiaries, provided that no
Inventory shall be deemed eligible if:
(a) any warranty or representation contained in this Agreement
or any of the other Loan Documents applicable either to Inventory in
general or to any specific Inventory has been breached in any material
respect with respect to such Inventory;
(b) it is neither (i) located at one of the places of business
of the Borrower or its Subsidiary listed in the Perfection Certificate
delivered to the Agent on November 20, 1996 by the Borrower in
connection with the Security Agreement or in a jurisdiction where, if
such location is in the United States, all necessary UCC filings have
been made to perfect the security interest of the Agent under the
Security Agreement in such Inventory and, if located in the United
Kingdom or the Republic of Ireland, all actions and filings shall have
been taken or made such that the Agent and the Lenders shall have a
perfected, first-priority security interest (or the equivalent thereof)
in such Inventory under the laws of such jurisdiction, nor (ii) located
at such other place of business which is reported to the Agent pursuant
to Section 4(a) of the Security Agreement, which the Agent agrees in
writing is an acceptable location for Eligible Inventory and which is
located in a jurisdiction where, if such location is in the United
States, all necessary UCC filings have been made to perfect the
security interest of the Agent under the Security Agreement in such
Inventory and, if located in the United Kingdom or the Republic of
Ireland, all actions and filings shall have been taken or made such
that the Agent and the Lenders shall have a perfected, first-priority
security interest (or the equivalent thereof) in such Inventory under
the laws of such jurisdiction, nor (iii) in transit from one place of
business to another;
(c) with respect to Inventory located in a public warehouse or
at a leased location, the Agent has not received a bailee letter or
landlord's lien waiver, in form and substance reasonably satisfactory
to the Agent;
(d) it is located at any outside processing location;
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(e) [intentionally omitted];
(f) it consists of returned goods;
(g) it is under consignment to or from any Person;
(h) it is not of good and merchantable quality, free from
defects which would materially and adversely affect the market value
thereof;
(i) it does not meet in all material respects all standards in
all material respects imposed by any governmental authority, or any
agency, department or division thereof, having regulatory authority
over such Inventory;
(j) it is obsolete or is otherwise currently not usable or
saleable in the ordinary course of business of the Borrower and its
Subsidiaries; or
(k) it consists of Inventory located outside of the United
States, the United Kingdom or the Republic of Ireland.
SECTION 3. Amendment to Section 6.2.5. Section 6.2.5 of the Credit
Agreement is hereby amended by replacing said Section in its entirety with the
following:
SECTION 6.2.5 Capital Expenditures. The Borrower will not, and
will not permit any Subsidiary to, make or commit to make any
Consolidated Capital Expenditures, except the Borrower and its
Subsidiaries may make Consolidated Capital Expenditures during any
fiscal year provided (x) no Default or Event of Default has occurred
and is continuing, and (y) the aggregate amount of Consolidated Capital
Expenditures made during such fiscal year (including the amount of
Capital Lease Liabilities incurred during such Fiscal Year that in
accordance to GAAP is attributable to principal) does not exceed the
amount set forth below opposite such fiscal year;
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Fiscal Year Amount
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1998 $3,800,000
1999 $3,000,000
2000 $5,000,000
2001 $5,000,000
2002 $5,000,000
2003 $5,000,000
provided further, however, that expenditures from insurance proceeds
received upon the occurrence of a Loss which are made to replace or
repair damaged or destroyed assets will not be included in the
foregoing calculation.
SECTION 4. Continuing Effectiveness of Credit Agreement. The Credit
Agreement and each of the other Loan Documents shall remain in full force and
effect in accordance with their respective terms, except as expressly amended or
modified by this Amendment.
SECTION 5. Cost and Expenses. The Borrower agrees to pay all
out-of-pocket expenses of the Agent for the negotiation, preparation, execution
and delivery of this Amendment (including fees and expenses of counsel to the
Agent).
SECTION 6. Effectiveness. This Amendment shall become effective upon
the prior or concurrent receipt by the Agent of each of the following:
(a) a copy of this Amendment, duly executed by each of the
Borrower, the Agent and the Lenders;
(b) an original Revolving Note, dated as of the date of this
Amendment, in the principal amount of $8,500,000 (the "New Revolving
Note"), issued as a substitution for the existing Revolving Note in the
principal amount of $6,500,000 (the "Old Revolving Note"). Upon receipt
of the New Revolving Note, Lender agrees to promptly return the Old
Revolving Note to the Borrower for cancellation;
(c) a certificate, dated as of the date of this Amendment, of
the Secretary of the Borrower as of such date as to:
(i) resolutions of its Board of Directors, then in
full force and effect authorizing the execution, delivery and
performance of this Amendment and the other documents
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referenced in Section 6 of this Amendment and the related
transactions contemplated hereby and thereby, and
(ii) the incumbency and signatures of those of its
officers authorized to act with respect to such documents,
upon which certificate each Lender may conclusively rely until
it shall have received further certificates of the Secretary
of the Borrower canceling or amending such prior certificate;
(iii) absence of changes to the Organic Documents of
the Borrower since April 30, 1998;
(d) a so-called "good standing" certificate with respect to
the Borrower as of a recent date from the appropriate Governmental
Authority of the State of its incorporation;
(e) evidence of qualification of the Borrower as of a recent
date to do business in each other jurisdiction in which the failure to
so qualify could result in a Material Adverse Change;
(f) an opinion letter, dated as of the date of this Amendment,
addressed to the Agent and all Lenders, from counsel to the Borrower
and its Subsidiaries in form and substance reasonably satisfactory to
the Agent covering such matters as the Agent may reasonably request
regarding this Amendment and the transactions contemplated hereby;
(g) such other documents (certified if requested) as the Agent
or the Required Lenders may reasonably request with respect to this
Amendment and the other documents referenced in Section 6 of this
Amendment, the transactions contemplated hereby or thereby, or any
Organic Document, Contractual Obligation or Regulatory Approval; and
(h) payment of the amount of all costs and expenses which have
been invoiced and are payable on or prior to the date of this Amendment
pursuant to Section 9.3 of the Credit Agreement.
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SECTION 7. Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or any provision hereof.
SECTION 8. Counterparts. This Amendment may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement. This
Amendment shall become effective when counterparts hereof executed on behalf of
the Borrower and each Lender (or notice thereof satisfactory to the Agent) shall
have been received by the Agent and notice thereof shall have been given by the
Agent to the Borrower and each Lender.
SECTION 9. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 10. Successors and Assigns. This Amendment shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that the Borrower may not assign or
transfer its rights or obligations hereunder or under the Credit Agreement
except in accordance with the terms of the Credit Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
MERIDIAN MEDICAL TECHNOLOGIES, INC.
By:
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Xxxxx X. Xxxxxx
President
[CORPORATE SEAL]
ING (U.S.) CAPITAL CORPORATION, in
its capacity as Agent and Lender
By:
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Xxxxxxx Xxxxxx
Vice President
[SIGNATURE PAGE TO SIXTH AMENDMENT]