Exhibit 10(cc)
FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
AND COLLATERL DOCUMENTATION
This Agreement, entered as of the 1st day of November, 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").
RECITALS:
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"), a Second Amendment dated as of July 1, 1998 and a Third Amendment
dated as of October 26, 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 has agreed to, the
modification of certain terms of the Loan Documents in the manner herein
provided.
Now therefore, in consideration of the foregoing, and for other good
valuable consideration the receipt and sufficiency
of which are hereby acknowledged, the parties do hereby agree as follows:
Section 1. MODIFICATION LOAN AGREEMENT AND LOAN DOCUMENTS.
1.1 LOAN AGREEMENT AMENDMENTS. The Loan Agreement is hereby amended a
follows:
(a) The definition of "Revolving Line of Credit Loan Rate" set forth in
Section 1.1 is amended by deleting same in its entirety and substituting the
following in its place and stead:
"REVOLVING LINE OF CREDIT LOAN RATE" means with respect to the Revolving
Line of Credit Loan a variable rate of 1% per annum in excess of the Prime
Rate in effect from time to time.
(b) 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 1, 2000, or (ii)
acceleration of the Obligation upon an Event of Default (the earlier of
such dates being the "Revolving Line of Credit Termination Date").
(c) Section 7.13 is modified by deleting same and substituting the
following in it place and stead:
SECTION 7.13 CAPITAL EPENDITURES. Borrower will not make capital
expenditures or payments in the nature of capital expenditures in any
fiscal year in the aggregate in excess of $300,000 (inclusive of
expenditures for research and development molds and tooling recorded as
other assets and exclusive of fixed assets purchased under the capital
lease
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authorized under the First Amendment to Loan and Security Agreement).
(d) Exhibit H is modified by substituting therefor Exhibit H annexed
hereto.
1.2 AFFIRMATION. Except as modified herein, the Loan Agreement and Loan
Documents shall remain in full force 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 REPRESENTATION.
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 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-
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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.
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.
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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 request) 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 herein or otherwise as of the date
of this Agreement set forth hereinabove.
4.6 UNENFORECEABILITY. 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.
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4.9 THIRD PARTIES. None of the obligations hereunder of any party shall
inure to or be enforeceable 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.
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 term of this Agreement. All other documents shall be in a form and content
acceptable to Bank.
4.13 WAIVER OF TRIAL 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 nor 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.
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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 Controller By: /s/ Xxx Xxxxxx
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ATTEST: DISPOSAL SCIENCE, INC.
/s/ Xxxxxxx Xxxxxx Controller By: /s/ Xxx Xxxxxx
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ATTEST: NATIONAL BANK OF CANADA
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxx
------------------------------- -----------------------------
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EXHIBIT H
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TIME PERIOD/TEST DATE
Net Income (excluding intercompany administrative charges) not
less than:
Fiscal year ended July 31, 1998 675,000
1st quarter of fiscal year ending July 31, 1999 90,000
1st six months of fiscal year ending July 31, 1999 245,000
1st nine months of fiscal year ending July 31, 1999 445,000
Fiscal year ending July 31, 1999 730,000
1st quarter of fiscal year ending July 31, 2000 90,000
1st six months of fiscal year ending July 31, 2000 245,000
1st nine months of fiscal year ending July 31, 2000 445,000
Fiscal year ending July 31, 2000 730,000
Tangible Net Worth not less than:
July 31, 1998 $2,675,000
October 31, 1998 2,765,000
January 31, 1999 2,920,000
April 30, 1999 3,120,000
July 31, 1999 3,405,000
October 31, 1999 3,495,000
January 31, 2000 3,650,000
April 30, 2000 3,850,000
July 31, 2000 4,135,000
Leverage Ratio not more than:
July 31, 1998 0.86
October 31, 1998 0.85
January 31, 1999 0.85
April 30, 1999 0.80
July 31, 1999 0.80
October 31, 1999 0.75
January 31, 2000 0.75
April 30, 2000 0.70
July 31, 2000 0.70
EXHIBIT E
LOCATIONS
All inventory, accounts receivable, machinery and equipment, and records related
to the same are located at the following address:
MediVators, Inc.
0000 Xxxx Xxx Xxxxxx
Xxxxx 00
Xxxxx, XX 00000
All inventories and certain other assets of the DS1 division are in the storage
at the following addresses:
North American Footwear, Inc.
0000 Xxxx Xxx Xxxxxx
Xxxxx, XX 00000
Citi-Cargo & Storage
0000 Xxxxxxx 00
Xxxxx, XX 00000
Additionally, certain records related to all of the above assets may be located
at the office of the Guarantor.
Cantel Industries, Inc.
0000 Xxxxx Xxxxxx - Xxxxx 000
Xxxxxxx, XX 00000
