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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
February 4, 2000
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NUTRAMAX PRODUCTS, INC.
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(Exact name of registrant as specified in charter)
Delaware 0-18671 061200464
- ---------------------------- ---------------- ---------------
(State or other jurisdiction (Commission file number) (IRS employer
of incorporation) identification no.)
51 Blackburn Drive, Gloucester, Massachusetts 01930
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (978) 282-1800
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Item 5. Other Events.
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NutraMax Products, Inc. (the "Company") has entered into a Second
Forbearance Agreement and Amendment with its bank lenders and subordinated debt
holder, extending the forbearance period until April 30, 2000, subject to the
satisfaction of certain financial performance covenants.
The Company also announced the appointment of Richard G. Glass to the
position of Chief Executive Officer. In addition to his duties as Chief
Executive Officer, Mr. Glass will also serve on the Company's Board of
Directors.
Additionally, the Company announced the appointment of David J. Radeke to
the position of President and Chief Operating Officer.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
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(c) Exhibits
Exhibit Name
- ------- ----
10.1* Second Forbearance Agreement and Amendment dated February 4, 2000 by
and among NutraMax Products, Inc., its various subsidiaries signatory
thereto, the lenders signatory thereto (the "Lenders"), and
BankBoston, N.A. as agent for the Lenders.
10.2* Second Waiver Under the Note Purchase Agreement dated February 4, 2000
by and between ING (U.S.) Capital LLC and NutraMax Products, Inc.
99.1* Press Release issued for publication on February 14, 2000.
- ---------------------
* Filed herewith.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
NUTRAMAX PRODUCTS, INC.
Date: February 16, 2000
By: /s/ Dawn Larson
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Dawn Larson
Chief Financial Officer
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EXHIBIT INDEX
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Exhibit Name
- ------- ----
10.1* Second Forbearance Agreement and Amendment dated February 4, 2000 by
and among NutraMax Products, Inc., its various subsidiaries signatory
thereto, the lenders signatory thereto (the "Lenders"), and
BankBoston, N.A. as agent for the Lenders.
10.2* Second Waiver Under the Note Purchase Agreement dated February 4, 2000
by and between Ing (U.S.) Capital LLC and NutraMax Products, Inc.
99.1* Press Release issued for publication on February 14, 2000.
- ----------------------
* Filed herewith.
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Exhibit 10.1
SECOND FORBEARANCE AGREEMENT AND AMENDMENT
------------------------------------------
This Second Forbearance Agreement and Amendment (the "Agreement") is
entered into as of February 4, 2000 by and among:
Nutramax Products, Inc. (hereinafter, the "Borrower"), a Delaware
corporation with its principal executive offices at 9 Blackburn Drive,
Gloucester, Massachusetts;
Nutramax Holdings, Inc., Nutramax Holdings II, Inc, Nutramax Ophthalmics
Inc. (f/k/a Optopics Laboratories Corp.), Fairton Realty Holdings, Inc.,
Oral Care, Inc., Powers Pharmaceutical Corp., Florence Realty, Inc.,
Certified Corp., First Aid Products, Inc., Adhesive Coatings, Inc., Elmwood
Park Realty, Inc. and F.A. Products, L.P. (individually, a "Guarantor" and
collectively, the "Guarantors");
BankBoston, N.A., National Bank of Canada, Fleet National Bank, The
Sumitomo Bank Limited, and Senior Debt Portfolio (hereinafter collectively,
the "Banks")
BankBoston, N.A., as Agent for the Banks (hereinafter, in such capacity,
the "Agent"), having a principal place of business at 100 Federal Street,
Boston, Massachusetts 02110;
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
WITNESSETH:
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1. Background. On December 30, 1996, the Agent, certain of the Banks and the
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Borrower entered into a Revolving Credit and Term Loan Agreement, pursuant
to which the Banks established, subject to the terms therein contained,
revolving credit, letter of credit and term loan facilities in favor of the
Borrower. The Revolving Credit and Term Loan Agreement was thereafter
modified pursuant to the terms of eight amendments thereto (the Revolving
Credit and Term Loan Agreement as so amended shall hereinafter be referred
to as the "Loan Agreement").
The Borrower's Obligations to the Agent and the Banks are secured by
perfected mortgage and security interests in and to all of the Borrower's
assets, including, without limitation, all of the Borrower's accounts,
inventory, equipment, general intangibles, trademarks, patents, and real
estate, (collectively, the "Collateral"). In addition,
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the Guarantors have unconditionally guarantied the payment and performance
of the Borrower's Obligations (the "Guaranties") and to secure their
respective guaranties have granted the Agent for the ratable benefit of the
Banks perfected mortgage and security interests in and to all of their
assets, including, without limitation, all of their accounts, inventory,
equipment, general intangibles, trademarks, patents, and real estate (the
"Guarantors' Collateral").
Various Events of Default have arisen under the Loan Agreement. On
December 1, 1999, the Borrower, the Guarantors, the Agent and the Banks
entered into a Forbearance Agreement and Amendment, pursuant to which the
Agent and the Banks agreed, subject to the terms thereof, to forbear from
exercising their rights and remedies upon default through February 5, 2000.
The Borrower and the Guarantors have failed to comply with the terms of the
Forbearance Agreement and Amendment and the Borrower and the Guarantors
have requested that, notwithstanding their defaults thereunder, the Agent
and the Banks continue to forbear from exercising their rights and remedies
upon default and enter into a new forbearance agreement on the terms set
forth herein.
2. Definitions.
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a. All capitalized terms used herein and not otherwise defined shall have
the same meaning herein as in the Loan Agreement.
b. "Collection Percentage": For any Bank, a fraction, the numerator of
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which is the said Bank's Deemed Commitment and the denominator of
which is the aggregate of all Deemed Commitments of all Banks.
c. "Deemed Commitment": As of any date, the then aggregate Commitments of
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each Bank, plus the following amounts for the following Banks:
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Bank Additional Amount
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BankBoston, N.A. $1,396,531.00
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Fleet National Bank $1,039,724.00
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The Sumitomo Bank Limited $ 644,013.00
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National Bank of Canada $ 919,732.00
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Senior Debt Portfolio 0
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d. "Excess Revolving Loans" means, at any time of calculation,
outstanding Revolving Loans plus the aggregate Stated Amount of
Letters of Credit (other than the Stock Purchase and IRB Letters of
Credit) outstanding at such time, plus the aggregate amount of any
unreimbursed draws under outstanding Letters of Credit to the extent
in excess of $19,000,000.00.
e. "Existing Defaults" means those Events of Defaults existing as of the
date hereof and described on Schedule 1 hereto.
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f. "Overadvance" shall mean a sum up to, but not to exceed, $3,000,000.00
unless and until all of the Banks otherwise agree to increase such
amount, in which event the Overadvance may be increased as agreed by
the Banks but in no event in excess of $4,000,000.00. To the extent
this definition conflicts with the first paragraph of (S)2.20 of the
Loan Agreement, the provisions of this definition shall control.
g. "Revolving Loan Ceiling" means $21,250,000.00 unless and until all of
the Banks otherwise agree to increase such amount, in which event the
Revolving Loan Ceiling may be increased as agreed by the Banks but in
no event in excess of $23,000,000.00.
3. Outstanding Obligations.
-----------------------
a. The Borrower and the Guarantors each acknowledge and agree that, as of
February 2, 2000, they are jointly and severally obligated to the
Agent and the Banks as follows:
Revolving Loans
Principal: $17,286,449.42
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Interest: $ 634,525.80
Term Loan A
Principal: $20,615,713.49
Interest: $ 684,100.17
Term Loan B
Principal: $25,698,919.04
Interest: $ 931,895.89
b. In addition, the Borrower acknowledges and agrees that the Borrower is
obligated to the Agent and the Banks for the IRB Letters of Credit,
other Letters of Credit, and any amounts due under the LC
Reimbursement Agreements relating thereto, for Agent's Fees,
Commitment Fees, interest, Letter of Credit fees. together with costs
and expenses, including, without limitation, attorneys' fees,
appraisal fees, and commercial finance examination fees, all whether
accrued or now due or hereafter accruing or becoming due.
c. The Borrower and the Guarantors each further acknowledge and agree
that, as of the date hereof, they do not have any offsets, defenses,
or counterclaims against the Agent or the Banks with respect to the
Loan Agreement, the Guaranties, any other Loan Documents, or
otherwise, and to the extent that any such offsets, defenses or
counterclaims may exist, the Borrower and each Guarantor hereby WAIVES
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and RELEASES same. The Borrower and each Guarantor shall execute and
--------
deliver to the Agent and each Bank such releases as the Agent or any
Bank may request to confirm the foregoing.
d. The Borrower and each Guarantor hereby ratifies and confirms that the
Obligations (as modified hereby) are secured by the Collateral and the
Guarantor Collateral.
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4. Forbearance By Agent and the Banks. The Agent and the Banks will each
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forbear from terminating the Commitments, accelerating the time for payment
of the Obligations, and foreclosing upon the Collateral and the Guarantor
Collateral until the earlier of (i) April 30, 2000, or (ii) at the election
of the Majority Banks, until the occurrence of a Termination Event (as
defined herein) (the period commencing on the date hereof and ending on the
earlier of (i) or (ii) above shall hereinafter be referred to as the
"Forbearance Period"). Nothing contained herein shall limit any other
rights of the Agent and the Banks upon default, including, without
limitation, the right to impose the default rate of interest.
5. Terms of Extended Forbearance. The Agent's and the Banks' consent to the
-----------------------------
Forbearance Period is subject to the following terms and conditions:
a. Revolving Loans; Letters of Credit. The provisions of (S)(S) 2.1(a),
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2.18(d) and 6.16 of the Loan Agreement are hereby amended to provide
that the maximum aggregate principal amount of all Revolving Loans
outstanding (after giving effect to the amounts requested), plus the
aggregate Stated Amount of Letters of Credit (other than the Stock
Purchase and IRB Letters of Credit) outstanding at such time, plus the
aggregate amount of any unreimbursed draws under outstanding Letters
of Credit, shall not at any time exceed the least of (A) the aggregate
amount of the Revolving Credit Commitments of all of the Banks, or (B)
the sum of the Borrowing Base and the Overadvance, or (C) the
Revolving Loan Ceiling.
b. Interest; Letter of Credit Fees. The Loan Agreement is hereby amended
-------------------------------
to provide that from and after the date hereof interest shall accrue
on Revolving Loans, Term Loan A and Term Loan B at the aggregate of
the Base Rate plus 3.75% per annum and Letter of Credit fees shall
accrue at the rate of 3.75% per annum.
c. Loan Payments. The Borrower shall continue to maintain the lockbox
-------------
and Cash Management Agreements with the Agent. All amounts received
in the lockbox shall continue to be applied to the Revolving Loans in
accordance with current practices of the parties. In addition, the
Borrower shall make mandatory prepayments of the Loans at the times
and in the manner set forth in Section 2.13(f) of the Loan Agreement.
In that
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regard, the provisions of (S)2.13(f) of the Loan Agreement are hereby
amended to provide that, prior to the occurrence of a Termination
Event pursuant to which the Forbearance Period is terminated, the Net
Proceeds from each such event shall be applied as follows:
FIRST, an amount equal to the greater of (i) the then outstanding
Overadvance, or (ii) the Excess Revolving Loans shall be applied
to the principal of the Revolving Loans. Any amounts applied to
the principal of the Revolving Loans shall permanently reduce the
Revolving Credit Commitments by a like amount.
SECOND, an amount equal to the accrued and unpaid interest on the
greater of (i) the then outstanding Overadvance, or (ii) the
Excess Revolving Loans shall be paid to the Banks participating
therein.
THIRD, the balance of the Net Proceeds shall be paid to the Banks
(based upon the Collection Percentages of each Bank). The amount
of Net Proceeds allocated to any Bank having a commitment in more
than one of the facilities provided under the Loan Documents
(i.e. a Revolving Credit Commitment, a Term Loan A Commitment, a
Term Loan B Commitment, a Stock Purchase LC Commitment, or an IRB
LC Commitment) shall be applied to the outstanding Obligations of
such Bank, and reduce the applicable commitments of such Bank, in
such proportions and manner as the Agent in its discretion
determines. Without limiting the foregoing, any amounts applied
to the Revolving Loans shall permanently reduce the Revolving
Credit Commitments by a like amount. Any amounts applied to the
Term Loans shall be applied in inverse order of maturity.
All other payments of principal, interest, Commitment Fees, Letter of
Credit Fees and Agent's Fees shall be deferred and shall be paid at
the end of the Forbearance Period.
d. Reporting Requirements. In addition to any other information required
----------------------
to be furnished by the Borrower to the Agent or any Bank, the Borrower
shall furnish the Agent with the following:
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i. Weekly, on Tuesday of each week as of the immediately preceding
Friday, a Borrowing Base Report signed by the chief financial
officer of the Borrower in the form and containing the
information set forth in (S)5.1(c) of the Loan Agreement,
provided that the inventory designation included as a part
thereof shall be required to be updated only as of the last day
of each month. In any event, the Borrowing Base Report shall
incorporate the adjustments to the Borrower's Inventory and
Accounts recommended by Arthur Anderson and previously furnished
to the Banks.
ii. Weekly, on Tuesday of each week, (A) an accounts receivable
aging, and (B) a variance report reflecting deviations from the
Six Month Plan (defined below) for the subject month and year to
date.
iii Monthly, on or before the seventh day of each month commencing
March 7, 2000, pro forma financial statements (including the
reports and information set forth in the Six Month Plan) for the
subsequent six month period .
iv. Monthly, on or before the twentieth day of each month, a
Consolidated balance sheet as of the end of, and a related
Consolidated statement of income for the portion of the fiscal
year then ended and for the immediately preceding fiscal month,
prepared in accordance with GAAP (but subject to normal year end
adjustments which shall not be material in amount) and excluding
footnotes, accompanied by a signed statement, commencing with the
financial statements to be delivered on March 20, 2000, that the
statements are a fair representation of the results of operation
based upon the financial records and information available to the
chief financial officer of the Borrower at that time.
v. On or before March 15, 2000, the audited balance sheet of the
Borrower and its Subsidiaries as of September 30, 1999, certified
by Arthur Andersen, LLP.
vi. On or before April 20, 2000, updated projected
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financial statements for the fiscal year ending September, 2000,
including, without limitation, a balance sheet, an income
statement, and a statement of cash flow, each prepared on a
monthly basis, together with the assumptions upon which the
financial statements were prepared.
e. Subordinated Indebtedness. Contemporaneously with the execution
-------------------------
hereof, the Borrower shall cause to be delivered to the Agent an
agreement with ING pursuant to which ING consents to the terms of this
Agreement, defers payment of all amounts due or to become due on
account of the ING Subordinated Debt from October 15, 1999 through May
15, 2000 and modifies such other terms of the ING Subordinated
Agreement and ING Subordinated Note as the Agent and the Banks may
reasonably require.
f. Chief Executive Officer. On or before February 29, 2000, the Borrower
-----------------------
and the Guarantors shall engage a chief executive officer, reasonably
acceptable to the Agent and the Majority Banks.
g. Financial Performance Covenants.
-------------------------------
i. During the Forbearance Period only, the provisions of (S) 5,7 and
(S)(S)6.7 through and including 6.9 of the Loan Agreement shall
be inapplicable for purposes of determining whether a Termination
Event has occurred. Nothing contained herein, however, shall be
deemed to constitute a waiver of any Events of Default now
existing or hereafter arising under those sections of the Loan
Agreement.
ii. During the Forbearance Period, the Borrower shall not permit the
consolidated net sales of the Borrower and its Subsidiaries,
calculated on a cumulative basis from January 1, 2000, to be less
than the following amounts for the following periods:
--------------------------------------
Month Ending Cumulative net sales
--------------------------------------
January, 2000 $ 8,226,000.00
--------------------------------------
February, 2000 $16,452,000.00
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--------------------------------------
March, 2000 $26,735,000.00
--------------------------------------
April, 2000 $34,776,000.00
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iii During the Forbearance Period, the Borrower shall not permit its
EBITDA (exclusive of forbearance fees, appraisal fees, and the
fees and expenses of the Banks' consultants and counsel),
calculated on a cumulative basis from January 1, 2000, to be less
than the following amounts for the following periods:
-----------------------------------
Month Ending Cumulative EBITDA
-----------------------------------
January, 2000 $ 833,000.00
-----------------------------------
February, 2000 $1,667,000.00
-----------------------------------
March, 2000 $2,709,000.00
-----------------------------------
April, 2000 $3,431,000.00
-----------------------------------
iv. During the Forbearance Period, the Borrower and its Subsidiaries
shall operate their business in accordance with, and achieve the
results projected in, the cash flow with detail furnished the
Agent and the Banks dated January 4, 2000, a copy of which is
annexed hereto (the "Six Month Plan"). In that regard, the
Borrower shall not permit any Unacceptable Deviation by more than
ten percent (10%) on a cumulative basis at the end of any week,
beginning with the week ending January 8, 2000. As used herein,
an "Unacceptable Deviation" shall mean any variance from any of
the following line items in the Six Month Plan as a result of
either cash receipts being less than projected or cash
disbursements being greater than projected: "Collections";
"Payroll"; "CapX"; or "Restructuring Expense" (each on an
individual basis) or "Supplier Disbursements" and "Other" on a
cumulative basis.
h. Compliance with Loan Documents. During the Forbearance Period, except
------------------------------
as otherwise specifically provided herein, the Borrower and each
Guarantor shall continue
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to comply with all of the other terms and conditions of the Loan
Agreement and other Loan Documents, as modified hereby.
i. Banks Consultant. The Borrower shall cooperate with Policano & Manzo,
----------------
LLP (the "Banks Consultant"), who have been engaged as consultants to
the Agent and the Banks to review and advise the Agent and the Banks
with respect to the Borrower's business, results of operation,
financial condition, the Collateral and such other matters as the
Agent and the Banks may request. The Borrower shall furnish such
consultants with such information at such times as the consultants may
reasonably request. All reasonable costs and expenses of the
consultant shall be borne by the Borrower and shall be paid on demand.
j. Reimbursement of Expenses. Upon the execution hereof, the Borrower
-------------------------
shall pay all reasonable costs and expenses, including, without
limitation, attorneys' fees, appraisal fees, Banks Consultant fees and
commercial finance examination fees, which have been incurred by the
Agent or any Bank in connection with its relationship with the
Borrower and the Guarantors. Without limiting the foregoing, upon the
execution hereof, the Borrower authorizes and directs the Agent and
the Banks to make a Revolving Loan in the sum of $100,000.00 to
reimburse the Agent and the Banks for the retainers required to be
furnished by the Agent and the Banks to (A) the Banks Consultant, in
the sum of $50,000.00, and (B) Riemer & Braunstein, LLP (the
"Attorneys"), in the sum of $50,000.00. The Borrower shall reimburse
the Agent and the Banks for all such reasonable costs and expenses
hereafter incurred by the Agent and the Banks promptly upon the
Borrower's receipt of an invoice therefor, without regard to the
retainers then held by the Banks Consultant and the Attorneys.
6. Conditions to Effectiveness. This Agreement and the Agent's and the Banks'
---------------------------
forbearance hereunder shall not be effective until each of the following
conditions precedent have been fulfilled to the satisfaction of the Agent
and the Banks:
a. This Agreement shall have been duly executed and delivered by the
respective parties hereto and, shall be in full force and effect and
shall be in form and substance satisfactory to each of the Banks.
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b. All action on the part of the Borrower and each Guarantor necessary
for the valid execution, delivery and performance by the Borrower and
each Guarantor of this Agreement shall have been duly and effectively
taken and evidence thereof satisfactory to the Banks shall have been
provided to each of the Banks.
c. The Borrower shall have paid to the Agent and Banks all fees, expenses
and other amounts then due and owing pursuant to this Agreement.
d. The Agent shall have received the agreement from ING described in
(S)5(e) hereof.
e. Except for the Existing Defaults, no Default or Event of Default (and
after taking into account the provisions of Paragraph 5(g)(i) hereof)
shall have occurred and be continuing.
f. The Borrower and the Guarantors shall have provided such additional
instruments and documents to the Agent and the Banks as the Agent and
the Agent's counsel may have reasonably requested.
7. Termination Events. The occurrence of any of the following events shall
------------------
constitute a "Termination Event" within the meaning of this Agreement:
a. The failure by the Borrower or any Guarantor to satisfy all of the
terms and conditions of this Agreement as and when due.
b. The occurrence of any Event of Default (other than Existing Defaults
and after taking into account the provisions of Paragraph 5(g)(i)
hereof).
c. There shall occur any material adverse change in the business,
financial condition, assets or operations of the Borrower and its
Subsidiaries, taken as a whole, after the date hereof, as determined
by the Agent and the Banks acting in good faith and in a commercially
reasonable manner.
The occurrence of a Termination Event shall also constitute an immediate
Event of Default under the Loan Agreement, without additional notice or grace.
Upon the occurrence of a Termination Event, the Majority Banks may, at their
option, terminate the
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Forbearance Period and may exercise any or all of their rights and remedies on
default to which the Agent or any Bank is, or to which the Agent or any Bank
would be entitled against the Borrower or any Guarantor. Without limiting the
foregoing, at the election of the Majority Banks, (a) the Commitments may be
terminated and the Banks shall be relieved of all obligations to make Loans and
of all further obligations to cause Letters of Credit to be issued, and (b) the
Agent and the Banks may exercise all rights and remedies against the Collateral
and the Guarantors' Collateral, provided that the foregoing shall not be deemed
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to modify the automatic termination of the Commitments and acceleration of the
Obligations upon the occurrence of an Event of Default under (S)(S)7.1(g) and
(h) of the Loan Agreement. Any notice required by this provision shall be given
in accordance with Section 9.1 of the Loan Agreement and such notice shall be
deemed received as provided for in said provision.
Notwithstanding anything to the contrary contained in the Credit Agreement
or any other Loan Document, any amounts received from or on behalf of the
Borrower or Guarantors (including from any realization upon any Collateral or
Guarantor Collateral) after the occurrence of a Termination Event under the
Second Forbearance pursuant to which the Forbearance Period is terminated shall
be first applied to the payment of any costs and expenses of the Agent, and to
the extent provided in the Loan Documents, the Banks and thereafter shall be
paid as follows:
FIRST: To each Bank participating in the Overadvance and the Excess
Revolving Loans, an amount equal to the greater of (i) the then
outstanding Overadvance, or (ii) the Excess Revolving Loans for
application to the principal of the Revolving Loans (including
the outstanding Overadvance and Letters of Credit), to the
extent of their respective Revolving Credit Commitment
Percentages.
SECOND: To each Bank participating in the Overadvance and the Excess
Revolving Loans, an amount equal to the accrued and unpaid
interest on the greater of (i) the then outstanding Overadvance,
or (ii) the Excess Revolving Loans, to the extent of their
respective Revolving Credit Commitment Percentages.
THIRD: To the Banks, pro rata based upon their respective Collection
Percentages until all Obligations have been paid in full.
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8. General.
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a. This Agreement shall be binding upon the Borrower and the Guarantors
and their respective successors and assigns and shall enure to the
benefit of the Agent, the Banks, and their respective successors and
assigns.
b. Any determination that any provision of this Agreement or any
application thereof is invalid, illegal, or unenforceable in any
respect in any instance shall not affect the validity, legality, or
enforceability of such provision in any other instance, or the
validity, legality, or enforceability of any other provision of this
Agreement.
c. No delay or omission by the Agent or any Bank in exercising or
enforcing any of its rights and remedies shall operate as, or
constitute, a waiver thereof. No waiver by the Agent or any Bank of
any of its rights and remedies on any one occasion shall be deemed a
waiver on any subsequent occasion, nor shall it be deemed a continuing
waiver.
d. This Agreement and all other documents, instruments, and agreements
executed in connection herewith incorporate all discussions and
negotiations among the Borrower, the Guarantors, the Agent and the
Banks, either express or implied, concerning the matters included
herein and in such other instruments, any custom, usage, or course of
dealings to the contrary notwithstanding. No such discussions,
negotiations, custom, usage, or course of dealings shall limit,
modify, or otherwise affect the provisions hereof. No modification,
amendment, or waiver of any provision of this Agreement or of any
provision of any other agreement between the Borrower, the Guarantors,
the Agent or any Bank shall be effective unless executed in writing by
the party to be charged with such modification, amendment and waiver.
e. Except as modified hereby, all terms and conditions of the Loan
Agreement and the other Loan Documents remain in full force and
effect. This Agreement does not constitute an amendment or remaking of
such documents and agreements but is, instead, an agreement by the
Agent and the Banks, as long as certain conditions are
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met, to forbear from the exercise of certain rights to which the Agent
and the Banks otherwise would be entitled thereunder, provided that in
the event of an inconsistency between this Agreement and the December
1, 1999 Forbearance Agreement and Amendment, the terms of this
Agreement shall control. The Agent and the Banks are not hereby
waiving any Existing Default or rights and remedies which exist and
the Agent and the Banks reserve the right upon expiration of the
Forbearance Period to undertake such action as a result of such
Defaults and Events of Default as the Agent or the Banks may
determine.
f. This Second Forbearance Agreement and Amendment shall be deemed to
constitute a "Loan Document" for all purposes under the Loan
Agreement.
g. This Agreement and all rights and obligations here under, including
matters of construction, validity, and performance, shall be governed
by the laws of The Commonwealth of Massachusetts. The Borrower and
each Guarantor submits to the jurisdiction of the Courts of said
Commonwealth for all purposes with respect to this Agreement and the
Borrower's and the Guarantors' relationship with the Agent and the
Banks.
h. The Borrower makes the following waiver knowingly, voluntarily, and
intentionally, and understands that the Agent and the Banks, in
entering into this Forbearance Agreement, is relying thereon. THE
BORROWER AND EACH GUARANTOR, TO THE EXTENT OTHERWISE ENTITLED THERETO,
HEREBY IRREVOCABLY WAIVES ANY PRESENT OR FUTURE RIGHT OF THE BORROWER
------
OR ANY SUCH GUARANTOR TO A JURY IN ANY TRIAL OF ANY CASE OR
CONTROVERSY IN WHICH THE AGENT OR ANY BANK IS OR BECOMES A PARTY
(WHETHER SUCH CASE OR CONTROVERSY IS INITIATED BY OR AGAINST THE AGENT
OR ANY BANK OR IN WHICH THE AGENT OR ANY BANK IS JOINED AS A PARTY
LITIGANT), WHICH CASE OR CONTROVERSY ARISES OUT OF, OR IS IN RESPECT
OF, ANY RELATIONSHIP BETWEEN THE BORROWER, ANY GUARANTOR OR ANY SUCH
PERSON AND THE AGENT OR ANY BANK.
i. The Borrower and each Guarantor shall execute such instruments and
documents as the Agent and the Banks may from time to time request in
connection with the Loan Agreement and the other Loan Documents, this
Agreement and the arrangements contemplated hereby.
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It is intended that this Agreement take effect as a sealed instrument.
NUTRAMAX PRODUCTS, INC.
By /s/ David J. Radeke
---------------------------
Print Name: David J. Radeke
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Title: Executive VP and COO
-------------------------
NUTRAMAX HOLDINGS, INC.
By /s/ David J. Radeke
---------------------------
Print Name: David J. Radeke
-------------------
Title: Executive VP and COO
-------------------------
NUTRAMAX HOLDINGS II, INC.
By /s/ David J. Radeke
---------------------------
Print Name: David J. Radeke
-------------------
Title: Executive VP and COO
-------------------------
NUTRAMAX OPHTHALMICS INC.
(f/k/a OPTOPICS LABORATORIES CORP.)
By /s/ David J. Radeke
---------------------------
Print Name: David J. Radeke
-------------------
Title: Executive VP and COO
-------------------------
15
<PAGE>
FAIRTON REALTY HOLDINGS, INC.
By /s/ David J. Radeke
---------------------------
Print Name: David J. Radeke
-------------------
Title: Executive VP and COO
-------------------------
ORAL CARE, INC.
By /s/ David J. Radeke
---------------------------
Print Name: David J. Radeke
-------------------
Title: Executive VP and COO
-------------------------
POWERS PHARMACEUTICAL CORP.
By /s/ David J. Radeke
---------------------------
Print Name: David J. Radeke
-------------------
Title: Executive VP and COO
-------------------------
FLORENCE REALTY, INC.
By /s/ David J. Radeke
---------------------------
Print Name: David J. Radeke
-------------------
Title: Executive VP and COO
-------------------------
CERTIFIED CORP.
By /s/ David J. Radeke
---------------------------
Print Name: David J. Radeke
-------------------
Title: Executive VP and COO
-------------------------
16
<PAGE>
FIRST AID PRODUCTS, INC.
By /s/ David J. Radeke
---------------------------------------------
Print Name: David J. Radeke
-------------------------------------
Title: Executive VP and COO
------------------------------------------
ADHESIVE COATINGS, INC.
By /s/ David J. Radeke
---------------------------------------------
Print Name: David J. Radeke
-------------------------------------
Title: Executive VP and COO
------------------------------------------
ELMWOOD PARK REALTY, INC.
By /s/ David J. Radeke
---------------------------------------------
Print Name: David J. Radeke
-------------------------------------
Title: Executive VP and COO
------------------------------------------
F.A. PRODUCTS, L.P.
By /s/ David J. Radeke
---------------------------------------------
By First Aid Products, Inc., its General Partner
---------------------------------------------
Print Name: David J. Radeke
-------------------------------------
Title: Executive VP and COO
------------------------------------------
17
<PAGE>
AGREED AND ACCEPTED BY
BANKBOSTON, N.A.
By: /s/ Robert J. Riley
---------------------------------
Print Name: Robert J. Riley
-------------------------
Title: Authorized Signer
------------------------------
NATIONAL BANK OF CANADA
By: /s/ LoriAnn Curnyn
---------------------------------
Print Name: LoriAnn Curnyn
-------------------------
Title: Group Vice President
------------------------------
By: /s/ Robert J. Gauch, Jr.
---------------------------------
Print Name: Robert J. Gauch, Jr.
-------------------------
Title: Vice President
------------------------------
FLEET NATIONAL BANK
By: /s/ Robert J. Riley
---------------------------------
Print Name: Robert J. Riley
-------------------------
Title: Vice President
------------------------------
THE SUMITOMO BANK LIMITED
By: /s/ Suresh S. Tata
---------------------------------
Print Name: Suresh S. Tata
-------------------------
Title: Senior Vice President
------------------------------
18
<PAGE>
SENIOR DEBT PORTFOLIO
By: /s/ Scott H. Page
---------------------------
Print Name: Scott H. Page
-------------------
Title: Vice President
------------------------
BANKBOSTON, N.A., AS AGENT
By: /s/ Robert J. Riley
---------------------------
Print Name: Robert J. Riley
-------------------
Title: Authorized Signer
------------------------
By: /s/ Michael O' Neill
---------------------------
Print Name: Michael O' Neill
--------------------
Title: Authorized Signer
------------------------
- ---------------
* Illegible
19
<PAGE>
Exhibit 10.2
------------
[LOGO OF ING BARINGS]
February 4, 2000
NutraMax Products, Inc.
51 Blackburn Drive
Gloucester, Massachusetts 01930
Attention: Mr. David Radeke
Chief Operating Officer
Re: Second Waiver Under the Note Purchase Agreement
Ladies and Gentlemen:
We refer to the Purchase Agreement dated as of December 30, 1996 (as
modified and supplemented and in effect on the date hereof, the "Purchase
Agreement") between Nutramax Products, Inc. (the "Company") and ING (U.S.)
Capital LLC ("ING Barings"). Terms used but not defined in this letter have the
respective meanings given to them in the Purchase Agreement.
Section 1. Deferral of Interest.
(a) Subject to your execution of the letter, ING Barings hereby agrees that
interest accrued and to accrue on the Note during the period commencing on the
Quarterly Date falling closest to October 15, 1999 and ending on the Quarterly
Date falling closest to April 15, 2000 (the "Deferred Interest") shall be
deferred.
(b) The Deferred Interest shall be payable in full on May 15, 2000.
(c) The Deferred Interest shall not bear interest.
(d) Interest on the Notes shall not accrue at the post-default rate (as
provided in Section 4.2 of the Note Purchase Agreement) solely as a result of
the failure to pay the Deferred Interest prior to May 15, 2000.
Section 2. Waivers. Subject to your execution of this letter, ING Barings
hereby waives, for the period ending on May 15, 2000, the Company's failure to
comply with following provisions of the Purchase Agreement: (a) the Company's
failure to deliver quarterly financial information pursuant to Section 7.1.1(b)
of the Purchase Agreement for any fiscal quarter in the fiscal year ended
September 30, 1999, (b) the Company's failure to deliver monthly financial
information pursuant to Section 7.1.1(c) of the Purchase Agreement for any month
ending on or prior to October 31, 1999, (c) the Company's failure to maintain
books and records in compliance with Section 7.1.9 of the Purchase Agreement,
(d) the Company's failure to comply with the limitation on
<PAGE>
Indebtedness set forth in Section 7.2.2(b) of the Purchase Agreement, (e) the
Company's failure to comply with the financial tests set forth in Section 7.2.4
of the Purchase Agreement, and (f) the Company's failure to comply with the
limitation on Capital Expenditures set forth in Section 7.2.7 of the Purchase
Agreement. The waivers set forth in this Section 2: (x) shall terminate and be
of no further force or effect on and after May 16, 2000, and (y) are limited to
the specific provisions set forth in this Section 2.
Section 3. Conditions Subsequent. The deferral of interest pursuant to
Section 1 hereof, and the waivers pursuant to Section 2 hereof, shall be
terminated and shall be void ab initio if any of the following shall occur:
(a) ING Barings shall not have received on Tuesday of each week, an
updated, Borrowing Base Report signed by the CFO in the form and containing
the information set forth in Section 5.1(c) of the Senior Credit Agreement;
or
(b) ING Barings shall not have received, on Tuesday of each week, an
accounts receivable aging and variance report reflecting deviations from
the Six Month Plan (as defined in the Forbearance Agreement) for the
subject month and year to date; or
(c) ING Barings shall not have received, on or before the twentieth
of each month commencing March 20, 2000, a consolidated balance sheet and a
related consolidated statement of income for the immediately preceding
fiscal month; or
(d) ING Barings shall not have received, on or before March 15, 2000,
the Company's financial statements for the fiscal year ended on September
30, 1999, with the opinions thereon of Arthur Andersen LLP; or
(e) ING Barings shall not have received, on or before April 20, 2000,
updated financial projections for the fiscal year ending September 30,
2000, including balance sheets, income statements and statements of cash
flows (each prepared on a monthly basis), and including the assumptions on
which such financial statements were prepared; or
(f) ING Barings shall not have received, promptly after its request
but no later than April 30, 2000, copies of all valuations of the Company,
prepared by the Company and reviewed by and independent third-party. Such
valuations to be satisfactory to ING Barings in form and substance; or
(g) The Company and the Senior Lenders shall not have entered into a
Second Forbearance Agreement and Amendment, in substantially the form
heretofore furnished to ING Barings (the "Forbearance Agreement"), on or
prior to February 5, 2000, or
<PAGE>
(h) The Forbearance Agreement shall be terminated for any reason, or
shall for any reason cease to be in full force and effect, or any
"Termination Event" shall occur under the Forbearance Agreement.
Section 4. Miscellaneous.
(a) This letter shall be governed by, and construed in accordance with, the
law of the State of New York.
(b) Except as expressly modified by this letter, the Purchase Agreement and
each of the other Purchase Documents shall remain in full force and effect, and
are hereby ratified and confirmed.
(c) The Company agrees to reimburse ING Barings upon its demand for all
costs and expenses of an ING Barings Advisor.
(d) The Company and the Subsidiary Guarantors each further acknowledge and
agree that, as of the date hereof, they do not have any offsets, defenses,
or counterclaims against ING Barings with respect to the Purchase
Agreement, any other Purchase Documents, or otherwise, and to the extent
that any such offsets, defenses or counterclaims may exist, the Company
hereby waive and release same. The Company shall execute and deliver to ING
Barings such releases as ING Barings may request to confirm the foregoing.
Please sign in the place set forth below to indicate your agreement with
the foregoing.
Very truly yours,
ING (U.S.) CAPITAL LLC
By /s/ Robert L. Fellows
------------------------
Robert L. Fellows
Director
AGREED TO:
NUTRAMAX PRODUCTS, INC.
By: /s/ David J. Radeke
------------------------------
Name: DAVID J. RADEKE
Title: EXECUTIVE V.P. & CEO
<PAGE>
Exhibit 99.1
------------
NEWS RELEASE
BERNARD KORMAN, Chairman of the Board IMMEDIATE
(978) 282-1800 February 14, 2000
NUTRAMAX ANNOUNCES EXTENSION OF FOREBEARANCE AGREEMENT AND
APPOINTMENT OF NEW CHIEF EXECUTIVE OFFICER
GLOUCESTER, MA -- NUTRAMAX PRODUCTS, INC. announced today that it has
entered into a Second Forbearance Agreement with its bank lenders and
subordinated debt holder extending the forbearance period until April 30, 2000,
subject to the satisfaction of certain financial performance covenants.
NutraMax also announced today the appointment of Richard G. Glass, age 45,
to the position of Chief Executive Officer. Mr. Glass was most recently
President - Mass Market Division of Twinlab Corporation based in Hauppauge, New
York. Twinlab is a leading manufacturer of branded and private label nutritional
supplements. Prior to Twinlab, Mr. Glass was employed for ten years at the
Perrigo Company based in Allegan, Michigan. At Perrigo, he served in a number of
key management positions including Executive Vice President - Sales & Marketing,
and Executive Vice President - Business Process Redesign. Perrigo is a leading
manufacturer of store-brand over-the-counter drugs, and nutritional supplements.
In addition to his duties as Chief Executive Officer, Mr. Glass will also serve
on the Company's Board of Directors.
Additionally, the Company announced the appointment of David J. Radeke to
the position of President and Chief Operating Officer. Mr. Radeke joined
NutraMax in June of 1998 as the Vice President & General Manager of their
Personal Care Division. In December of 1998 he was promoted to Corporate Vice
President of Operations and most recently held the position of Chief Operating
Officer.
Speaking on behalf of the Company, Bernard J. Korman, NutraMax Chairman of
the Board stated that, "We are very pleased that we have been able to attract an
executive of Rick's caliber to NutraMax. His extensive experience in the store
brand industry and with our key retail partners will offer the leadership and
direction that the Company requires at this time. We are also pleased to have an
opportunity to promote David Radeke at this critical time to maintain the
continuity in our improvement programs designed to return NutraMax to its
position as a preferred supplier to our customers."
NutraMax is a leading consumer health care products company and the number
one
<PAGE>
manufacturer and marketer of Store-Brand Disposable Douches, ready-to-use
Enemas, Pediatric Electrolyte Oral Maintenance Solutions, Disposable Baby
Bottles, Cough Drops, and Throat Lozenges. The Company also markets a broad line
of Toothbrushes, Dental Floss, and various First Aid Products for the hospital
and industrial safety markets. In addition, the Company offers a broad range of
pharmaceutical manufacturing capabilities to a select group of contract
customers. NutraMax products are sold by supermarkets, drug chains, and mass
merchandisers under both store brand and control brands, including Powers, Sweet
'n Fresh (R), Pure & Gentle, Fresh 'n Easy, Pro Dental, American White Cross,
and NutraMax.
Visit NutraMax on the Internet at http://www.nutramax.com.
-----------------------
