EXHIBIT 10(w)
CARSEN GROUP INC.
as Borrower
- and -
CANTEL INDUSTRIES, INC.
as Guarantor
- and -
NATIONAL BANK OF CANADA
as Lender
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SECOND LOAN AMENDING AGREEMENT
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Dated as of April 19, 1996
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NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises and the mutual covenants herein contained and other good and valuable
consideration, the parties hereto agree as follows
ARTICLE I
INTERPRETATION
1.1 Defined Terms. In this Second Loan Amending Agreement and the recitals
hereto, unless there is something in the subject matter or context inconsistent
therewith or unless otherwise expressly provided:
"Second Loan Amending Agreement", "herein", "hereby", "hereof" and
similar expressions mean or refer to this Second Amending Agreement.
In this Second Loan Amending Agreement and the recitals hereto, unless there is
something in the subject matter or context inconsistent therewith, or unless so
stated to the contrary in this Second Loan Amending Agreement, the words and
expressions herein contained, which are defined in the Loan Agreement, shall
have the meanings given to such words and expressions in the Loan Agreement.
1.2 Interpretation not Affected by Headings, etc. The division of this Second
Loan Amending Agreement into Articles and Sections and the insertion of headings
are for convenience of reference only and shall not affect the Construction or
interpretation hereof.
ARTICLE II
AMENDMENT TO THE LOAN AGREEMENT
2.1 Amendments to Section 1.01 of the Original Loan Agreement. (1) The
definition of "Commitment" in Section 1.01 of the Original Loan Agreement, as
amended by Subsection 2(3) is hereby deleted in its entirety and the following
substituted therefor:
"Commitment" means, subject to any reduction made in accordance with
Section 2.16, (i) for the period from the Closing Date to December
31, 1997, up to U.S. $7,500,000 (or the Equivalent Cdn. $ Amount);
and (ii) for the period from January 1, 1998 to December 31, 1998,
up to such amount as may be requested by the Borrower and agreed to
by the Lender in its sole discretion.
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(2) The definition of "Foreign Exchange Hedging Arrangement" in Section 1.01 of
the Original Loan Agreement is hereby deleted in its entirety and the following
substituted therefor:
"Foreign Exchange Hedging Arrangement" means any agreement under
which the Lender provides foreign exchange rate protection in
respect of any currency (other than Canadian dollars).
(3) The definition of "Lending Limit" in Section 1.01 of the Original Loan
Agreement, as amended by Subsection 2(8) of the First Loan Amending Agreement,
is hereby deleted in its entirety and the following substituted therefor:
"Lending Limit" means, subject to any reduction made in accordance
with Section 2.16, (i) for the period from the Closing Date to
December 31, 1997, the lesser of U.S. $7,500,000 (or the Equivalent
Cdn. $ Amount) and the Margin Requirement; and (ii) for the period
from January 1, 1998 to December 31, 1998, subject to extension of
the Repayment Date, the lesser of (y) such amount as may be
requested by the Borrower and agreed to by the Lender in its sole
discretion, and (z) the Margin Requirement.
(4) The definition of "Margin Requirement" in Section 1.01 of the Original Loan
Agreement, as amended by Subsection 2(10) of the First Loan Amending Agreement,
is hereby deleted it in its entirety and the following substituted therefor:
"Margin Requirement" means the amount by which:
(A) the sum of:
(i) 85% of Division Eligible Accounts Receivable; and
(ii) 75% of Eligible Accounts Receivable; and
(iii) the lesser of (y) the sum of 85% of Division Eligible
Accounts Receivable and 75% of Eligible Accounts
Receivable and (z) 50% of Eligible Inventory, and 40% of
Division Sample Inventory to a maximum of, in the case
of Division Sample Inventory, $1,000,000 (reducing to
(i) 30% to a maximum of $750,000 from and after January
1, 1997; and (ii) 20% to a maximum of $500,000 from and
after January 1, 1998).
exceeds (B) the amount of liabilities owing by the Borrower
which are capable of comprising a lien or trust claim under
relevant
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legislation in respect of the assets of the Borrower ranking
or capable of ranking in priority to the Security.
(5) The definition of "Repayment Date" in Section 1.01 of the Original Loan
Agreement, as amended by subsection 2(12) of the First Loan Amending Agreement,
is hereby deleted and the following substituted therefor:
"Repayment Date" means, in respect of repayment of all
Accommodations made hereunder, December 31, 1997, or such other date
as determined pursuant to Section 8.06.
2.2 Amendment to Article II of the Original Loan Agreement. The Original Loan
Agreement is amended to add the following section, as part of Article II,
immediately following section 2.15 thereof:
Section 2.16. Reduction of Commitment and Lending Limit. The
Borrower may, at its election, permanently reduce the Commitment and
the Lending Limit by providing at least 30 Business Days' prior
notice in writing to the Lender, which notice shall set out the
amounts of the respective reductions, which amounts shall be in
integral multiples of U.S. $50,000.
2.3 Amendment to Section 6.03 of the Original Loan Agreement. Paragraph 6.03(1)
of the Original Loan Agreement is hereby deleted in its entirety.
2.4 Amendment to Schedule 3 to the Original Loan Agreement. Schedule 3 to the
Original Loan Agreement is hereby amended by deleting the paragraph set out next
to the asterisk, beneath the heading "Margin Requirement Calculations", and
substituting therefor the following:
* to a maximum of $1,000,000, reducing to (i) .30 to a maximum of $750,000 from
and after January 1, 1997; and (ii) .20 to a maximum of $500,000 from and after
January 1, 1998.
ARTICLE III
MISCELLANEOUS
3.1 Representations and Warranties; No Default. On and as of the date of
execution of this Second Loan Amending Agreement and after giving effect to this
Second Loan Amending Agreement, the Borrower and Cantel jointly and severally
(a) confirm, reaffirm and restate the representations and warranties set forth
in Article 5 of the Original Loan Agreement, as amended by the First Loan
Amending Agreement, except to the extent that such representations and
warranties relate solely to an earlier
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date in which case the Borrower and Cantel jointly and severally confirm,
reaffirm and restate such representations and warranties for such earlier date
in all material respects, provided that the references therein shall be deemed
to be to the Loan Agreement as amended by this Second Loan Amending Agreement;
and (b) represent that no Default or Event of Default has occurred and is
continuing.
3.2 Incorporation of the Loan Agreement. This Second Loan Amending Agreement is
supplemental to and shall henceforth be read in conjunction with the Loan
Agreement, and the Loan Agreement and this Second Loan Amending Agreement shall
henceforth have effect so far as practicable as if all the provisions thereof
and hereof were contained in one instrument.
3.3 Reference to and Effect on the Loan Agreement. On and after the date
hereof, each reference in the Loan Agreement to "this agreement", "hereunder",
"hereof", "herein" or words of like import, and each reference to the Loan
Agreement in any and all agreements, documents and instruments delivered by all
or any one or more of the parties thereto and any other Person shall mean and
refer to the Loan Agreement as amended hereby. Except as specifically amended
hereby, the Loan Agreement shall remain in full force and effect and is hereby
ratified and confirmed.
3.4 Confirmation of Security. The Borrower hereby confirms that the Security
Documents to which it is a party continue to remain in full force and effect,
unamended, for the benefit of the Lender and continue to extend to all
liabilities of the Borrower under the Loan Agreement as amended hereby.
3.5 Confirmation of Guarantee. Cantel hereby confirms that the Letter of
Guarantee remains in full force and effect, unamended, for the benefit of the
Lender and continues to extend to all liabilities and obligations of the
Borrower under the Loan Agreement as amended hereby.
3.6 Confirmation of Postponement Agreement. Cantel hereby confirms that the
Postponement Agreement remains in full force and effect, unamended, for the
benefit of the Lender and continues to extend to all liabilities of the Borrower
under the Loan Agreement as amended hereby.
3.7 No Waiver. The execution, delivery and effectiveness of this Second Loan
Amending Agreement shall not operate as a waiver of any right, power or remedy
of the Lender under the Loan Agreement or any other agreements or instruments
delivered in connection therewith or pursuant thereto.
3.8 Expenses. The Borrower shall be obligated to reimburse the Lender for all
its reasonable costs and expenses (including without limitation, reasonable
legal expenses) incurred in connection with the preparation, execution and
delivery of this Second Loan Amending Agreement.
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3.9 Governing Law. This Second Loan Amending Agreement shall be governed by and
construed in accordance with the laws of the Province of Ontario and Canada
applicable therein and shall be treated in all respects as an Ontario contract.
3.10 Assignment. Subject to the restrictions on assignment and transfer
contained in the Loan Agreement, this Second loan Amending Agreement Shall enure
to the benefit of and be binding upon the parties hereto and their respective
heirs, executors, administrators, successors and assigns.
3.11 Counterparts. This Second Loan Amending Agreement may be executed in any
number of counterparts with the same effect as if the parties hereto had all
signed the documents and each of such counterparts, when so executed, shall be
deemed to be an original and such counterparts together shall constitute one and
the same instrument, which shall be sufficiently evidenced by any such original
counterpart.
IN WITNESS WHEREOF the parties hereto have executed this Amending
Agreement as of the day and year first above written.
CARSEN GROUP INC.
Per: /s/ Xxxxxx X. Xxxxx
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Name: XXXXXX X. XXXXX
Title: PRESIDENT
CANTEL INDUSTRIES, INC.
Per: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President
NATIONAL BANK OF CANADA
Per: /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxx
Title: Manager
Per: /s/ X. Xxxxx
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Name: X. Xxxxx
Title: Vice President
