EXHIBIT 10.41
EXHIBIT 10.41
AMENDMENT NO. 5
THIS AMENDMENT NO. 5 (this "AMENDMENT"), dated as of July 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. 5, including its preamble and recitals, have the
following meanings:
"AMENDED CREDIT AGREEMENT" means the Existing Credit
Agreement as amended hereby.
"AMENDMENT NO. 5 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.
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PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment No. 5
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. SECTION 9.3. Section 9.3 of the Existing Credit
Agreement is amended and restated in its entirety to read as follows:
SECTION 9.3 FIXED CHARGE COVERAGE RATIO.
Permit, as of any fiscal quarter end for the periods shown
below, the Fixed Charge Coverage Ratio, as of the last day of each such
fiscal quarter, to be less than:
(a) for the period from June 30, 2000 to and
including December 31, 2002, 2.25 to 1.0; and
(b) at all times thereafter, 2.35 to 1.0.
SUBPART 2.2. ACKNOWLEDGEMENT AND AGREEMENT CONCERNING LIBOR
LOANS. The Credit Parties and the Lenders acknowledge that as of the
Amendment No. 5 Effective Date, nine (9) LIBOR Loans are outstanding
even though Section 2.2(a)(i) of the Existing Credit Agreement states
that "no more than 5 LIBOR Loans shall be outstanding hereunder at any
one time". The Credit Parties hereby covenant and agree that prior to
October 31, 2000 they shall cause the total number of outstanding LIBOR
Loans to be less than or equal to five (5). In connection therewith,
the Lenders agree that prior to October 31, 2000 the Borrower shall be
permitted to elect interest periods of two (2) months PROVIDED THAT the
last day of any such two (2) month interest period expires on or prior
to October 31, 2000.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. AMENDMENT NO. 5 EFFECTIVE DATE. This Amendment
shall be and become effective as of the date hereof (the "AMENDMENT NO.
5 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. 5."
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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. 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) .
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. 5 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.
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(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 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.
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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/ D. JON MCGUIRE
---------------------------------
Title: VICE PRESIDENT
------------------------------
GUARANTOR: REPAK SURGICAL ENTERPRISES, INC.,
--------- an Ohio corporation
By: /s/ D. JON MCGUIRE
---------------------------------
Title: VICE PRESIDENT
------------------------------
LENDERS: FIRST UNION NATIONAL BANK
------- individually in its capacity as
a Lender and in its
capacity as Agent
By: /s/ JOYCE L. BARRY
---------------------------------
Title: SENIOR VICE PRESIDENT
------------------------------
SOUTHTRUST BANK, N.A.
By: /s/ CHARLES S. SCHWARTZ
---------------------------------
Title: VICE PRESIDENT
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SIGNATURE PAGE
AMENDMENT NO. 5
TO STERILE RECOVERIES, INC. CREDIT AGREEMENT
