EXHIBIT 10.1
SECOND AMENDMENT AGREEMENT
SECOND AMENDMENT AGREEMENT, dated as of September 30, 2002 (this "Amendment
Agreement"), to the Amended and Restated Credit Agreement, dated as of May 14,
2001, as amended to date (and as the same may be further amended, supplemented
or modified from time to time in accordance with its terms, the "Credit
Agreement"), among Microtek Medical Holdings, Inc., formerly known as Isolyser
Company, Inc., a Georgia corporation ("MMH") and Microtek Medical, Inc., a
Delaware corporation ("Microtek", together with MMH, each a "Borrower" and,
jointly and severally, the "Borrowers"), the lenders named therein (the
"Lenders"), the guarantors named therein (the "Guarantors") and JPMorgan Chase
Bank, formerly known as The Chase Manhattan Bank, as agent (the "Agent") for the
Lenders. Terms used herein and not otherwise defined herein shall have the
meanings attributed thereto in the Credit Agreement.
WHEREAS, the Borrowers have requested and the Lenders have agreed to amend
the Credit Agreement as described herein.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. AMENDMENT TO CREDIT AGREEMENT
1.1 Section 7.09 of the Credit Agreement is hereby amended in its entirety
to read as follows:
"SECTION 7.09 EBITDA. Permit EBITDA of the Borrowers and their
subsidiaries on a Consolidated basis to be less than (i) $7,500,000 for the
four quarter period ending on September 30, 2002, (ii) $8,000,000 for the
four quarter period ending on December 31, 2002, (iii) $10,000,000 for the
four quarter periods ending on March 31, 2003, June 30, 2003, and September
30, 2003, (vi) $11,000,000 for the four quarter period ending on December
31, 2003 and each four quarter period thereafter. For purposes hereof,
EBITDA shall mean for the applicable period the sum of Net Income,
depreciation and amortization, federal, state and local income taxes and
interest expense for such period, computed and calculated in accordance
with GAAP."
SECTION 2. CONFIRMATION OF SECURITY DOCUMENTS
Each Loan Party, by its execution and delivery of this Amendment Agreement,
irrevocably and unconditionally ratifies and confirms in favor of the Agent that
it consents to the terms and conditions of the Credit Agreement as it has been
amended by this Amendment Agreement and that notwithstanding this Amendment
Agreement, each Security Document to which such Loan Party is a party shall
continue in full force and effect in accordance with its terms and is and shall
continue to be applicable to all of the Obligations.
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SECTION 3. CONDITIONS PRECEDENT
This Amendment Agreement shall become effective upon the execution and
delivery of counterparts hereof by the parties listed below and the fulfillment
of the following conditions:
(1) All representations and warranties contained in this Amendment
Agreement or otherwise made in writing to the Agent in connection herewith shall
be true and correct.
(2) No unwaived event has occurred and is continuing which constitutes a
Default or an Event of Default under the Credit Agreement.
SECTION 4. MISCELLANEOUS
4.1 Each Borrower and each Guarantor reaffirms and restates the
representations and warranties set forth in Article IV of the Credit Agreement
and all such representations and warranties shall be true and correct on the
date hereof with the same force and effect as if made on such date, except as
they may specifically refer to an earlier date. Each Borrower and each Guarantor
represents and warrants (which representations and warranties shall survive the
execution and delivery hereof) to the Agent that:
(1) it has the corporate power and authority to execute, deliver and carry
out the terms and provisions of this Amendment Agreement and the transactions
contemplated hereby and has taken or caused to be taken all necessary corporate
action to authorize the execution, delivery and performance of this Amendment
Agreement and the transactions contemplated hereby;
(2) no consent of any other person (including, without limitation,
shareholders or creditors of any Borrower or any Guarantor), and no action of,
or filing with any governmental or public body or authority is required to
authorize, or is otherwise required in connection with the execution, delivery
and performance of this Amendment Agreement;
(3) this Amendment Agreement has been duly executed and delivered on behalf
of each Borrower and each Guarantor by a duly authorized officer, and
constitutes a legal, valid and binding obligation of each Borrower and each
Guarantor enforceable in accordance with its terms, subject to bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting the
enforcement of creditors' rights generally and the exercise of judicial
discretion in accordance with general principles of equity; and
(4) the execution, delivery and performance of this Amendment Agreement
will not violate any law, statute or regulation, or any order or decree of any
court or governmental instrumentality, or conflict with, or result in the breach
of, or constitute a default under any contractual obligation of any Borrower or
any Guarantor.
4.2 All references to the Credit Agreement in the Credit Agreement and the
other Loan Documents and the other documents and instruments delivered pursuant
to or in connection therewith shall mean such Credit Agreement as amended hereby
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and as may in the future be amended, restated, supplemented or modified from
time to time.
4.3 Upon presentation of its invoice, the Borrowers covenant and agree to
pay in full all legal fees charged, and all costs and expenses incurred, by Xxxx
Xxxxxxx LLP, counsel to the Agent, in connection with the transactions
contemplated under this Agreement and the other Loan Documents and instruments
in connection herewith and therewith.
4.4 This Amendment Agreement may be executed by the parties hereto
individually or in combination, in one or more counterparts, each of which shall
be an original and all of which shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page by telecopier shall be
effective as delivery of a manually executed counterpart.
4.5 THIS AMENDMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4.6 The parties hereto shall, at any time and from time to time following
the execution of this Amendment Agreement, execute and deliver all such further
instruments and take all such further action as may be reasonably necessary or
appropriate in order to carry out the provisions of this Amendment Agreement.
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MICROTEK MEDICAL HOLDINGS, INC.,
formerly known as ISOLYSER COMPANY,
INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
MICROTEK MEDICAL, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
ISOLYSER - MSI, INC., formerly
known as MEDSURG INDUSTRIES, INC.,
as Guarantor
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
JPMORGAN CHASE BANK, formerly known
as THE CHASE MANHATTAN BANK, as
Agent and as Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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1561531
