Exhibit 10.2
SIXTH AMENDMENT TO CREDIT AGREEMENT
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:
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 1.1 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;
Fiscal Year Amount
----------- ------
1998 $3,800,000
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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. Continuinig 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 negotiations 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 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: /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
--------------------------
Michael P. Garvin, Jr.
Vice President