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Exhibit
10.9
FOURTH AMENDMENT AND
WAIVER
TO REVOLVING CREDIT AND
TERM LOAN AGREEMENT
FOURTH AMENDMENT AND WAIVER
(the “Amendment”) entered into as of January 31,
2008 (the “Effective Date”) by and between HI-TECH
PHARMACAL CO., INC (the “Company”), a Delaware
corporation, with its principal place of business at 369 Bayview
Avenue, Amityville, New York 11701 and BANK OF AMERICA, N.A ,
successor by merger to Fleet National Bank, a national banking
association, having a place of business located at 300 Broad Hollow
Road, Melville, New York 11747 (the “Bank”).
WHEREAS, the Company, Little
Remedies Co., Inc. (the “Former Guarantor”) and the
Bank are patties to a Revolving Credit and Term Loan Agreement
dated as of October 23, 2002, as amended by that First
Amendment dated as of November 1, 2002, that Second Amendment
dated as of November 15, 2002 and that Third Amendment dated
as of October 21, 2005, as same may be hereafter amended and
modified (the “Agreement”);
WHEREAS, the Former Guarantor
is an inactive entity and no longer provides its secured guaranty
with respect to the Company’s obligations under the
Agreement; and
WHEREAS, the Company has
requested that the Bank amend certain provisions of the Agreement
and waive certain covenant violations thereunder as of the
Effective Date, and the Bank has agreed to such amendments and
waivers subject to the provisions hereof
NOW, THEREFORE, the parties
hereto hereby agree as follows:
1. All capitalized terms used
herein, unless otherwise defined herein, have the same meanings
provided therefor in the Agreement.
2 As an inducement for the
Bank to enter into this Amendment, the Company hereby represents
and warrants to the Bank as of April 22, 2008 (the “Execution
Date”) that:
(a) There are no defenses or
offsets to its obligations under the Agreement, the Notes, or the
Loan Documents, and if any such defenses or offsets exist, the same
are hereby waived
(b) Each and every of the
representations and warranties of the Company set forth in the
Agreement and the Loan Documents is true as of the Execution Date
and with the same effect as though made on the Execution Date, and
is hereby incorporated herein in full by reference as if fully
restated herein in its entirety.
(c) No Default or Event of
Default and no event or condition which, with the giving of notice
or lapse of time or both, would constitute such a Default or Event
of Default, now exists or would exist after giving effect hereto,
except (i) as set forth in Section 4 hereof, and
(ii) violations of Sections 5.9(b) and 5.9(d) of the Agreement
after the Effective Date, which post-Effective Date violations are
not covered by this Amendment.
3. The Agreement is hereby
amended as follows:
(a) The definition of
“Acquisition” in Section 1.1 is deleted and the
following is substituted therefor:
“ Acquisition
: shall mean any acquisition after the date hereof by the
Company or any Subsidiary, of a Person within the same or related
line of business as the Company or its Subsidiaries by: merger,
consolidation, purchase of a voting majority of the stock of
another Person, purchase of all or substantially all of the assets
of another Person or purchase of all or substantially all of the
assets of a division or other operating component of another
Person, if all of the following conditions are met:
(i) The Bank shall have
received a set of projections setting forth in reasonable detail
the pro forma effect of such acquisition and showing compliance by
the Company and its Subsidiaries with all covenants set forth in
this Agreement for the next succeeding year. The projections to be
delivered hereunder shall include and specify the assumptions used
to prepare such projections regarding growth of sales, margins on
sales and cost savings resulting from such acquisition;
(ii) The Bank shall have
received a certificate (with attached written financial covenant
calculations) signed by the president and the chief financial
officer of the Company to the effect that for the most recent
twelve (12) months ended on the day prior to the proposed
acquisition date, and on a pro forma basis after giving effect to
such acquisition: (a) all representations and warranties
contained in the Loan Documents will remain true and correct,
except those, if any, made as of a specific time which shall have
been true and correct when made, (b) the Company is in
compliance with and will remain in compliance with all covenants
contained in the Loan Documents, and (c) no Default or Event
of Default has occurred and is continuing (including, without
limitation, written calculations of the Financial Covenants set
forth in Section 5.9 (inclusive) of this Agreement,
demonstrating compliance for the most recent twelve
(12) months ended on the date immediately prior to the
proposed acquisition date) or will occur as a result of the
consummation of such acquisition;
(iii) Such acquisition, in
the case of a corporation being acquired, has been
(a) approved by the board of directors of such corporation
which is the subject of such acquisition, (b) recommended for
approval by such board to the shareholders of such corporation and
subsequently approved by such shareholders as required under
applicable law or the by-laws or the certificate of incorporation
of such corporation or (c) otherwise agreed to by all
shareholders of such corporation;
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(iv) With respect to each
Seller Note constituting part of the Cash Compensation for such
acquisition, the Company shall obtain a subordination agreement
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