Exhibit 10(hh)
NUTRAMAX PRODUCTS, INC.
0 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Dated as of: March 31, 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: Fourth 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
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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, and by a
Third Amendment to Revolving Credit and Term Loan Agreement dated as of January
20, 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 "Fourth 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 Fourth Amendment.
Accordingly, in consideration of these premises, the promises, mutual
covenants and agreements contained in this Fourth Amendment, and fully intending
to be legally bound by this Fourth 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 March 31, 1998 (the "Fourth 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 Fourth 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(g)(iii) below.
(c) The last line of Section 2.13(f)(iii) of the Loan Agreement is
amended to read in its entirety as follows:
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"statements required to be delivered pursuant to Section 5.1(a), provided
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that for the fiscal year ending September 30, 1997, there shall only be due
and payable 75% of the Excess Cash Flow of the Borrower for the immediately
preceding three fiscal quarters (the "Stub Period"), and provided, further,
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that of the $930,750 of Excess Cash Flow owing for the Stub Period, (x)
$100,000 thereof shall be deferred and become due on June 30, 1998, (y)
$100,000 thereof shall be deferred and become due on October 5, 1998, and
(z) the remaining balance thereof shall be deferred and become due 10 days
after the date on which the financial statements are required to be
delivered pursuant to Section 5.1(a) for the fiscal year ending September
30, 1998, it being understood and agreed, however, that the foregoing
deferrals shall not in any way limit the Borrower's obligations to make
Mandatory Prepayments under clause (ii) above.
(d) Section 6.6 of the Loan Agreement is amended: (i) by deleting
the reference to "4.25 to 1" specified opposite the test for the fiscal quarter
ending March 31, 1998 (but not the fiscal quarter ending June 30, 1998), and
(ii) by inserting in place thereof the following: "4.50 to 1."
(e) Section 6.9 of the Loan Agreement is amended: (i) by deleting
the reference to "2.75 to 1" specified opposite the test for the fiscal quarters
ending March 31, 1998 and June 30, 1998 (but not the fiscal quarter ending
December 31, 1997), and (ii) by inserting in place thereof the following: "2.50
to 1."
ARTICLE II
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REPRESENTATIONS, WARRANTIES AND COVENANTS
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The Borrower hereby represents, warrants and covenants to you as follows:
(a) Representations in Loan Agreement. Each of the representations and
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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 Fourth Amendment.
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(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 Fourth Amendment).
(c) Binding Effect of Documents. This Fourth 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.
ARTICLE III
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PROVISIONS OF GENERAL APPLICATION
---------------------------------
(a) Waiver. The Borrower has informed the Banks and the Agent that it has
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failed to comply with the provisions of Sections 2.13(f) and 6.6 of the Loan
Agreement for the fiscal year ending September 30, 1997 and the fiscal quarter
ending December 31, 1997, respectively, which such failure constitutes Events of
Default thereunder. The Borrower has requested that the Banks waive such Events
of Default, and by their countersignatures below, the Banks hereby waive such
Events of Default under Sections 2.13(f) and 6.6 of the Loan Agreement insofar
as (and only to the extent that) such Events of Default relate to the fiscal
year ending September 30, 1997 and the fiscal quarter ending December 31, 1997,
respectively. This waiver is a one-time waiver only, and does not constitute a
waiver of (i) any other Default or Event of Default under the Loan Agreement,
whether existing prior to, on or arising after December 31, 1997, including
without limitation, any breach arising after such date of the same type or
nature or (ii) any of the Banks' or Agent's rights or remedies with respect to
any such other or subsequent Defaults or Events of Default.
(b) 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 Fourth Amendment, are confirmed
as being in full force and effect.
(c) Governing Law. This Fourth 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 Fourth 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.
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(d) Binding Effect; Assignment. This Fourth 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.
(e) Counterparts. This Fourth 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 Fourth Amendment, it shall not be necessary to produce or account
for more than one counterpart hereof signed by each of the parties hereto.
(f) Conflict with Loan Agreement. If any of the terms of this Fourth
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Amendment shall conflict in any respect with any of the terms of the Loan
Agreement or any other Loan Document, the terms of this Fourth Amendment shall
be controlling.
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(g) Conditions Precedent. This Fourth Amendment shall become and be
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effective as of the Fourth Amendment Date, but only if:
(i) the form of acceptance at the end of this Fourth Amendment
shall be signed by the Borrower, each Subsidiary, the Agent and
the Banks;
(ii) the Agent shall have received, for the ratable benefit of
those Banks who are signatories to this Fourth Amendment, an
amendment fee from the Borrower in the amount of $90,000 (which
represents approximately 10 basis points of the current Total
Commitment); and
(iii) 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 has entered into modifications to the
Subordinated Debt Documents in form and substance satisfactory to
the Banks and the Agent in connection therewith (including,
without limitation, modifications to certain of the financial
covenants contained therein so as to make them less restrictive
than those which are contained in the Loan Agreement).
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this Fourth Amendment and return such
counterpart to the undersigned, whereupon this Fourth 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
(remainder of page intentionally left blank)
The foregoing Fourth Amendment is hereby accepted by the undersigned
effective as of March 31, 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: Vice President
FLEET NATIONAL BANK
By: /s/ Xxx X. Xxxxx
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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/ Xxxxx X. Xxxxx
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Title: Senior Vice President
By: /s/ Xxxxxxx Xxxxx
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Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as investment advisor
By: /s/ Xxxxx X. Page
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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
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
FIRST AID PRODUCTS, INC., Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Title: Vice President