AMENDMENT NO. 2
THIS AMENDMENT NO. 2 (this "Amendment"), dated as of March 24, 2000, is
by and among STERILE RECOVERIES, INC., a Florida corporation (the "Borrower"),
certain Subsidiaries of the Borrower identified on the signature pages hereto
(each a "Guarantor", and collectively, the "Guarantors"), the Lenders identified
on the signature pages hereto (the "Lenders") and FIRST UNION NATIONAL BANK, as
Agent for the Lenders (the "Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement dated as of February 24,
1999, as amended from time to time prior to the date hereof (the "Existing
Credit Agreement") among the Borrower, the Guarantors, the Lenders and the
Agent, the Lenders have extended commitments to make certain credit facilities
available to the Borrower;
WHEREAS, the parties hereto have agreed to amend the Existing Credit
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. Unless otherwise defined
herein or the context otherwise requires, the following terms used in
this Amendment No. 2, including its preamble and recitals, have the
following meanings:
"Amended Credit Agreement" means the Existing Credit
Agreement as amended hereby.
"Amendment No. 2 Effective Date" is defined in
Subpart 3.1.
SUBPART 1.2. Other Definitions. Unless otherwise defined
herein or the context otherwise requires, terms used in this Amendment,
including its preamble and recitals, have the meanings provided in the
Amended Credit Agreement.
PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment No. 2
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part II. Except as so amended, the Existing Credit Agreement shall
continue in full force and effect.
SUBPART 2.1. Revolving Committed Amount. The definition of
Revolving Committed Amount in Section 1.1 of the Existing Credit
Agreement is amended and restated in its entirety to read as follows:
"Revolving Committed Amount" means the aggregate
revolving credit line extended by the Lenders to the Borrower
for Revolving Loans pursuant to and in accordance with the
terms of this Credit Agreement, in an amount up to
$20,000,000, as such revolving credit line may be reduced from
time to time in accordance with Sections 2.10.
SUBPART 2.2. Swingline Committed Amount. The definition of
Swingline Committed Amount in Section 1.1 of the Existing Credit
Agreement is amended and restated in its entirety to read as follows:
"Swingline Committed Amount" means $3,000,000.
SUBPART 2.3. Section 2.10. Section 2.10 of the Existing Credit
Agreement is amended and restated in its entirety to read as follows:
SECTION 2.10 TERMINATION AND REDUCTION OF REVOLVING
COMMITMENTS.
(a) Voluntary Reductions. The Revolving Commitments
may be terminated or permanently reduced in whole or in part
by the Borrower upon five (5) Business Days' prior written
notice to the Agent, provided that (i) after giving effect to
any voluntary reduction, the aggregate amount of outstanding
Revolving Loans shall not exceed the aggregate Revolving
Committed Amount, as reduced, and (ii) partial reductions
shall be in a minimum principal amount of $2,500,000, and in
integral multiples thereof. The Agent shall promptly notify
each affected Lender of receipt by the Agent of any notice
from the Borrower pursuant to this Section.
(b) Mandatory Reductions. On May 30, 2000, the
Revolving Committed Amount automatically shall be permanently
reduced to $15,000,000.
(c) General. The Borrower shall pay to the Agent for
the account of the Lenders in accordance with the terms of
Section 3.3(b), on the date of each termination or reduction
of the Revolving Committed Amount, the
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Commitment Fee accrued through the date of such termination or
reduction on the amount of the Revolving Committed Amount so
terminated or reduced.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Amendment No. 2 Effective Date. This Amendment
shall be and become effective as of the date hereof (the "Amendment No.
2 Effective Date") when all of the conditions set forth in this Part
III shall have been satisfied, and thereafter this Amendment shall be
known, and may be referred to, as "Amendment No. 2."
SUBPART 3.2. Execution of Counterparts of Amendment. The Agent
shall have received counterparts (or other evidence of execution,
including telephonic message, satisfactory to the Agent) of this
Amendment, which collectively shall have been duly executed on behalf
of each of the Borrower, the Guarantors, the Agent and the Lenders.
SUBPART 3.3. Replacement Notes. The Agent shall have received
a replacement Revolving Note and a replacement Swingline Note which
shall each have been duly executed on behalf of the Borrower.
SUBPART 3.4. Certificates of Secretary or Assistant Secretary
of the Credit Parties. The Agent shall have received a certificate of
the secretary or an assistant secretary of each Credit Party certifying
(A) that attached thereto is a true and complete copy of resolutions
duly adopted by the Board of Directors of such Credit Party authorizing
the execution, delivery and performance of this Amendment and the Notes
contemplated hereby and (B) as to the incumbency and genuineness of the
signature of each officer of such Credit Party executing the Amendment
and the Notes contemplated hereby.
SUBPART 3.5. Opinion of Counsel. The Agent shall have received
favorable opinion of counsel to the Credit Parties with respect to this
Amendment and such other matters as the Agent and its counsel shall
request.
SUBPART 3.6. Fees and Expenses. There shall have been paid by
the Borrower to the Agent, any accrued and unpaid fees due under the
Credit Agreement (including, without limitation, legal fees and
expenses).
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PART IV
MISCELLANEOUS
SUBPART 4.1. Cross-References. References in this Amendment to
any Part or Subpart are, unless otherwise specified, to such Part or
Subpart of this Amendment.
SUBPART 4.2. Instrument Pursuant to Existing Credit Agreement.
This Amendment is a Credit Document executed pursuant to the Existing
Credit Agreement and shall (unless otherwise expressly indicated
therein) be construed, administered and applied in accordance with the
terms and provisions of the Existing Credit Agreement.
SUBPART 4.3. References in Other Credit Documents. At such
time as this Amendment No. 2 shall become effective pursuant to the
terms of Subpart 3.1, all references in the Existing Credit Agreement
to the "Agreement" and all references in the other Credit Documents to
the "Credit Agreement" shall be deemed to refer to the Existing Credit
Agreement as amended by this Amendment.
SUBPART 4.4. Affirmation of Liens. The Borrower and the
Guarantors, as applicable, affirm the liens and security interests
created and granted in the Existing Credit Agreement and the Credit
Documents and agree that this Amendment shall in no manner adversely
affect or impair such liens and security interests.
SUBPART 4.5. Representations and Warranties. The Borrower and
the Guarantors hereby represent and warrant as follows:
(i) Each Credit Party has taken all necessary action
to authorize the execution, delivery and performance of this
Amendment.
(ii) This Amendment has been duly executed and
delivered by the Credit Parties and constitutes each of the
Credit Parties' legal, valid and binding obligations,
enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium
or similar laws affecting creditors' rights generally and (ii)
general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity).
(iii) No consent, approval, authorization or order
of, or filing, registration or qualification with, any court
or Governmental Authority or
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third party is required in connection with the execution,
delivery or performance by any Credit Party of this Amendment.
(iv) The representations and warranties of the Credit
Parties set forth in Article VI of the Amended Credit
Agreement are true and correct in all material respects as of
the date hereof.
(v) No Default or Event of Default exists under the
Existing Credit Agreement on and as of the date hereof after
giving effect to the amendments contained herein.
(vi) No Credit Party, to the best of its knowledge,
has any counterclaims, offsets, credits or defenses to the
Credit Documents and the performance of its obligations
thereunder.
SUBPART 4.6. Acknowledgment. The Guarantors (i) acknowledge
and consent to all of the terms and conditions of this Amendment, (ii)
affirm all of their obligations under the Credit Documents and (iii)
agree that this Amendment and all documents executed in connection
herewith do not operate to reduce or discharge the Guarantors'
obligations under the Amended Credit Agreement or the other Credit
Documents.
SUBPART 4.7. Counterparts. This Amendment may be executed by
the parties hereto in several counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but
one and the same agreement.
SUBPART 4.8. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE
OF FLORIDA WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
SUBPART 4.9. Successors and Assigns. This Amendment shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
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Each of the parties hereto has caused a counterpart of this Amendment to be duly
executed and delivered as of the date first above written.
BORROWER: STERILE RECOVERIES, INC.,
-------- a Florida corporation
By: s/ Xxxxx X. Xxxxxxxx
____________________________________
Name: Xxxxx X. Xxxxxxxx
__________________________________
Title: Executive Vice President
_________________________________
GUARANTOR: XXXXX SURGICAL ENTERPRISES, INC.,
--------- an Ohio corporation
By: s/ Xxxxx X. Xxxxxxxx
____________________________________
Name: Xxxxx X. Xxxxxxxx
__________________________________
Title: Executive Vice President
_________________________________
LENDER: FIRST UNION NATIONAL BANK
------ individually in its capacity as
a Lender and in its
capacity as Agent
By: s/ Authorized Officer
____________________________________
Name: Authorized Officer
__________________________________
Title:_________________________________
STATE OF NORTH CAROLINA
COUNTY OF_______________________________
The foregoing instrument was acknowledged before me this _____ day of
___________, 2000 by _______________________________, as an officer of the
companies set forth on the signature pages attached hereto. He personally
appeared before me and is personally known to me or produced ___________________
as identification.
Notary:__________________________________
[NOTARIAL SEAL] Print Name:______________________________
Notary Public, State of North Carolina
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
The foregoing instrument was acknowledged before me this _____ day of
__________, 2000 by _______________________________, _________________ of First
Union National Bank, a national banking association. He/she personally appeared
before me and is personally known to me or produced ___________________ as
identification.
Notary:_____________________________
[NOTARIAL SEAL] Print Name:_________________________
Notary Public, State of Mecklenburg
