Exhibit 10(dd)
FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
AND COLLATERAL DOCUMENTATION
This Agreement, entered as of the 1st day of October, 1999, 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, a Second Amendment dated as of July 1, 1998, a Third Amendment
dated as of October 26, 1998 and a Fourth Amendment dated as of November 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 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
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) 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 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 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
- 2 -
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.
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
- 3 -
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 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
- 4 -
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.
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.
- 5 -
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 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.
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.
By /s/ Xxx X. Xxxxxx
---------------------------- ----------------------------
ATTEST: DISPOSAL SCIENCES, INC.
By /s/ Xxx X. Xxxxxx
---------------------------- ----------------------------
ATTEST: NATIONAL BANK OF CANADA
/s/ Xxxxxxx X. Xxxxx By /s/ Xxxx X. Xxxxxx
---------------------------- ----------------------------
VP & Mgr. Vice President
- 6 -
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 DSI division are in storage
at the following address:
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
EXHIBIT H
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 400,000
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 2,938,000
October 31, 1999 3,028,000
January 31, 2000 3,183,000
April 30, 2000 3,383,000
July 31, 2000 3,668,000
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 0.80
January 31, 2000 0.80
April 30, 2000 0.75
July 31, 2000 0.75
