Exhibit 10.32
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of
October 15, 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.
W I T N E S S E T H:
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
reflect changes 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 "EBITDA" with the
following:
"EBITDA" means, for any period, an amount equal to Net Income
plus (to the extent deducted in determining Net Income) interest
expense, provisions for income taxes, depreciation, amortization of
intangible assets and the right-off of in-process research and
development expense, in each case for the Borrower and its Subsidiaries
on consolidated basis; provided, that (a) any calculation of EBITDA
that takes into account the fourth quarter of the Borrower's 1997
Fiscal Year shall exclude from such calculation the $1,539,400 pre-tax
charge incurred during the fourth quarter of the Borrower's 1997 Fiscal
Year, which charge is related to the voluntary product exchange program
instituted during such period, (b) any calculation of EBITDA shall
exclude any extraordinary item associated with the extinguishment of
Indebtedness as a result of any refinancing of all or any part of the
Indebtedness evidenced by the Estate Subordinated Note or the Junior
Subordinated Note or the Obligations, (c) any calculation of EBITDA
that takes into account the third quarter of the Borrower's 1998 Fiscal
Year shall exclude from such calculation the $2,244,000 pre-tax charge
incurred during such third quarter of the Borrower's 1998 Fiscal Year,
which charge is related to the EpiPen(R) product recall announced in
May 1998, (d) any calculation of EBITDA that takes into account the
fourth quarter of the Borrower's 1998 Fiscal Year shall exclude from
such calculation the $500,000 pre-tax charge incurred during such
fourth quarter of the Borrower's 1998 Fiscal Year, which charge is
related to the revision of the estimated costs of the EpiPen(R) product
recall, and (e) any calculation of EBITDA that takes into account the
fourth quarter of the Borrower's 1998 Fiscal Year shall exclude from
such calculation the $166,000 pre-tax charge incurred during such
fourth quarter of the Borrower's 1998 Fiscal Year, which charge is
related to the amendment to the Senior Subordinated Note Warrants
amending the exercise price thereunder from $11.988 to $7.50 per share
of Common Stock that may be purchased under the Senior Subordinated
Note Warrants.
SECTION 2. Amendment to Section 1.1. Section 1.1 of the Credit
Agreement is hereby further amended by replacing subsection (p) of the
definition of "Eligible Account" with the following subsection (p):
(p) on and after October 31, 1998, the Account Debtor with
respect to such Account is the United States Government or an agency or
instrumentality of the United States, unless the Borrower or its
Subsidiary has complied with the requirements of the Federal Assignment
of Claims Act (32 U.S.C. 3727), or the government of any state of the
United States or agency or instrumentality of such state, unless the
Borrower or its Subsidiary has complied with any state assignment of
claims or similar laws relative to the assignment of such Account and
the right to receive payment thereof by the Agent for its benefit and
the benefit of the Lenders;
SECTION 3. 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 4. 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 5. Effectiveness. This Amenchnent 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) a copy of an amendment to the Note Purchase Agreement duly
executed and delivered by each of the Borrower and the holders of the
Senior Subordinated notes, in the form of Exhibit A hereto;
(c) 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.
SECTION 6. 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 7. 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 8. 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 9. 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.
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: /S/ JAMES H. MILLER
--------------------------------
James H. Miller
President
[CORPORATE SEAL]
ING (U.S.) CAPITAL CORPORATION, in its
capacity as Agent and Lender
By: /S/ MICHAEL P. GARVIN, JR.
--------------------------------
Michael P. Garvin, Jr.
Vice President