EXHIBIT 10(W)
THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
AND COLLATERAL DOCUMENTATION
This Agreement, entered as of the 26th day of October, 1998, by and
between NATIONAL BANK OF CANADA, a chartered bank constituted under the Bank
Act of Canada, with offices at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Bank" or "Lender"), MEDIVATORS, INC., a Minnesota corporation with offices
at 0000 Xxxx Xxx Xxxxxx, Xxxxx, Xxxxxxxxx 00000 ("MediVators") and DISPOSAL
SCIENCES, INC., a Minnesota corporation, with offices at 0000 Xxxx Xxx
Xxxxxx, Xxxxx, Xxxxxxxxx 00000 ("Disposal").
R E C I T A L S:
1. Borrowers are the "Borrowers" under a Loan and Security Agreement
dated May 22, 1996 with National Canada Finance Corp. ("NCFC"). The Loan and
Security Agreement, as amended by a First Amendment dated as of December 1,
1997 ("First Amendment"), and a Second Amendment dated as of July 1, 1998 is
herein referred to as the "Loan Agreement". Lender is the successor in
interest to NCFC under the Loan Agreement. Any capitalized terms utilized and
not defined herein shall have the same meanings as are ascribed to them in
the Loan Agreement.
2. The Borrowers have requested, and Lender is considering the
modification of certain terms of the Loan Documents. The parties wish in the
interim to document modifications agreed upon at this time.
Now therefore, in consideration of the foregoing, and for other good
and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, the parties do hereby agree as follows:
SECTION 1. MODIFICATION OF LOAN AGREEMENT AND LOAN DOCUMENTS.
1.1 LOAN AGREEMENT AMENDMENTS. The Loan Agreement is hereby amended as
follows:
(a) The last sentence of Section 2.1 is amended by deleting same in its
entirety and substituting the following in its place and stead:
The entire outstanding balance of principal, and any accrued and
unpaid interest thereon, shall be due and payable and the Revolving
Line of Credit Loan shall terminate on the earlier of: (i) August 31,
1999, or (ii) acceleration of the Obligations upon an Event of Default
(the earlier of such dates being the "Revolving Line of Credit
Termination Date").
(b) Exhibit H is modified by changing the Leverage Ratio for July 31,
1998 to 0.86.
1.2 AFFIRMATION. Except as modified herein, the Loan Agreement and
Loan Documents shall remain in full force and effect.
SECTION 2. NO WAIVER OF DEFAULTS.
2.1 NO WAIVER OF PAST DEFAULTS. Nothing contained herein and no action
by Lender shall be deemed to constitute a waiver of any other Default under
the Loan Documents.
SECTION 3. BORROWER REPRESENTATIONS.
3.1 CORPORATE AUTHORITY. Borrowers have the authority to enter into
and perform their obligations under this Agreement. The execution, delivery
and performance of this Agreement has been
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duly authorized by all requisite corporate action of Borrowers. Each of the
Borrower's Locations, the current locations of all Inventory, and the
locations of each office at which each Borrower maintains Records concerning
its Accounts Receivable or other Accounts and General Intangibles, and other
financial matters, are solely as set forth in Exhibit E annexed.
3.2 ENFORCEABILITY. This Agreement constitutes the legal valid and
binding obligations of Borrowers and is enforceable against Borrowers in
accordance with its terms.
3.3 NO CONFLICT. The execution and delivery of this Agreement and the
performance of the transactions contemplated hereby by each Borrower do not
conflict with or result in any violation of each Borrower's Certificate of
Incorporation or by-laws or any statute, rule or regulation applicable to or
binding upon either Borrower. The execution, delivery and performance of this
Agreement will not conflict with or result in any violation of any provision
of any agreement, contract, instrument, order, writ, judgment, decree or
other undertaking to which any Borrower is a party or is obligated or by
which any Borrower's property is bound.
3.4 AUTHORIZATION. The signatories executing this Agreement on behalf
of Borrowers have been authorized by Borrowers to so execute this Agreement
and the execution of this Agreement has been authorized by corporate
resolution of each Borrower.
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SECTION 4. GENERAL PROVISIONS.
4.1 DOCUMENTS. By execution of this Agreement, Borrowers are
simultaneously modifying all Loan Documents, including any promissory notes
previously delivered by Borrowers, to conform to the terms of this Agreement,
and all of such Loan Documents shall be deemed so modified. The Loan
Documents shall otherwise remain in full force and effect.
4.2 ENTIRE AGREEMENT. This Agreement and the Loan Documents and the
instruments, agreements and certificates delivered simultaneously herewith,
if any, or referred to herein, constitute the entire agreement of the parties
with respect to the subject matter hereof, and supersede all prior and
contemporaneous agreements, whether written or oral, except as otherwise
provided herein.
4.3 AMENDMENT. No provision of this Agreement may be waived or changed
orally, but only by instrument in writing, signed by the party against whom
enforcement of such change or waiver is sought.
4.4 NOTICES. All notices and other communications hereunder shall be in
writing and shall be effective when delivered personally or when mailed by
certified or registered mail (return receipt requested) addressed at the
addresses set forth hereinabove or to such other addresses as a party may
designate to the other in writing.
4.5 EFFECTIVE DATE. This Agreement and the amendments provided for
herein shall take effect as of the date provided for
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herein or otherwise as of the date of this Agreement set forth hereinabove.
4.6 UNENFORCEABILITY. Any provision of this Agreement which is
prohibited or unenforceable shall be deemed severed from this Agreement
without invalidating the remaining provisions or affecting the validity or
enforceability of the remainder of this Agreement.
4.7 COUNTERPART EXECUTION. This Agreement may be signed in any number
of counterparts with the same effect as if the signatures thereto were upon
the same instrument.
4.8 HEADINGS. The Section headings contained herein are for convenience
of reference only and are not intended to define, limit or describe the scope
or intent of any provision of this Agreement.
4.9 THIRD PARTIES. None of the obligations hereunder of any party shall
inure to or be enforceable by any party other than a party of this Agreement.
4.10 BINDING EFFECT. This Agreement shall be binding upon, and shall
inure to the benefit of, the successors in interest and the permitted assigns
of the parties hereto.
4.11 DEFAULT. Except as expressly set forth herein, Bank hereby
specifically reserves all of its rights and remedies under the Loan Agreement
and Loan Documents. If any Borrower fails to perform its obligations under
this Agreement, Borrowers shall be in default hereunder and said default
shall be a default under the Loan Documents.
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4.12 OTHER DOCUMENTS. Bank and Borrowers agree to execute any and all
other documents and to take such other actions as may be necessary to carry
out the terms of this Agreement. All other documents shall be in a form and
content acceptable to Bank.
4.13 WAIVER OF TRIAL BY JURY. EACH BORROWER HEREBY, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY, WAIVES ANY RIGHT SUCH BORROWER MAY HAVE OR
HEREAFTER ACQUIRE TO A TRIAL BY JURY IN RESPECT TO ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. Each borrower hereby
certifies that neither Bank or any of its representatives, agents or counsel
has represented, expressly or otherwise, that Bank would not, in the event of
any such suit, action or proceeding seek to enforce this waiver of right to
trial by jury. Each Borrower acknowledges that it has made this waiver
knowingly, voluntarily and intentionally.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be executed, all as of the day and year first above written.
ATTEST: MEDIVATORS, INC.
/s/ Xxxxxxx Xxxxxx By: /s/ Xxx Xxxxxx
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Xxxxxxx Xxxxxx Xxx Xxxxxx
ATTEST: DISPOSAL SCIENCES, INC.
/s/ Xxxxxxx Xxxxxx By: /s/ Xxx Xxxxxx
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Xxxxxxx Xxxxxx Xxx Xxxxxx
ATTEST: NATIONAL BANK OF CANADA
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxx
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Xxxxxxx X. Xxxxx Xxxx X. Xxxxxx
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