UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 28, 2017
Stericycle, Inc.
(Exact name of registrant as specified in its charter)
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Delaware |
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1-37556 |
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36-3640402 |
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(State or other jurisdiction of incorporation) |
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(Commission File Number) |
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(IRS Employer Identification Number) |
28161 North Keith Drive
Lake Forest, Illinois 60045
(Address of principal executive offices including zip code)
(847) 367-5910
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CR 230.425)
☐ Soliciting material pursuant to Rule 425 under the Securities Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
Amendments to Debt Agreements
On July 28, 2017, Stericycle, Inc. (the “Company”) entered into amendments to certain of its debt agreements as described below (the “Debt Agreement Amendments”), which, among other things, permit the Company to make the payment contemplated by the proposed resolution (the “Proposed MDL Settlement”) reached with Plaintiffs and their counsel in In re: Stericycle, Inc., Steri-Safe Contract Litigation, Case No. 1:13-cv-05795 (N.D. Ill.) (the “MDL Action”), further described in Item 8.01 below.
Third Amendment to Second Amended and Restated Credit Agreement
The Company is a party to that certain (1) Second Amended and Restated Credit Agreement dated as of June 3, 2014 by and among the Company and certain of its subsidiaries named therein, Bank of America, N.A., as administrative agent, and the other financial institutions party thereto, (2) the First Amendment to Second Amended and Restated Credit Agreement dated March 31, 2015 and (3) the Second Amendment to Second Amended and Restated Credit Agreement dated August 13, 2015 (such Amended and Restated Credit Agreement, as amended as described above, the “Bank Credit Agreement”).
On July 28, 2017, the Company entered into that certain Third Amendment to the Bank Credit Agreement attached hereto as Exhibit 10.1. The Third Amendment amends the Bank Credit Agreement to, among other things, modify the definition of Consolidated EBITDA (Section 1.01) and provisions relating to permissible Consolidated Leverage Ratio (Section 7.11(b)) to permit the Company to make the payment contemplated by the Proposed MDL Settlement.
The Third Amendment amends the financial covenant in the Bank Credit Agreement to provide that if, at the end of any fiscal quarter, the Consolidated Leverage Ratio, on a pro forma basis as of such date and immediately after giving effect to the settlement payment of the Proposed MDL Settlement is greater than 3.50 to 1.00, the Company may, in its sole discretion, elect to increase the maximum Consolidated Leverage Ratio to 4.00 to 1.00 as of the end of the fiscal quarter in which the full payment for the Proposed MDL Settlement occurred and in any subsequent fiscal quarter ending on or prior to September 30, 2018; provided, however, in no event shall the elevated ratio permitted by the immediately preceding clause extend after September 30, 2018.
First Amendment to Term Loan Credit Agreement
The Company is a party to that certain Term Loan Credit Agreement dated as of August 21, 2015 by and among the Company, Bank of America, N.A., as administrative agent, and the other financial institutions party thereto (the “Term Loan Agreement”).
On July 28, 2017, the Company entered into that certain First Amendment to the Term Loan Agreement attached hereto as Exhibit 10.2. The First Amendment amends the Term Loan Agreement to, among other things, modify the definition of Consolidated EBITDA (Section 1.01) and provisions relating to the permissible Consolidated Leverage Ratio (Section 7.11(b)) to permit the Company to make the payment contemplated by the Proposed MDL Settlement.
The First Amendment amends the financial covenant in the Term Loan Agreement to provide that if, at the end of any fiscal quarter, the Consolidated Leverage Ratio, on a pro forma basis as of such
date and immediately after giving effect to the settlement payment of the Proposed MDL Settlement is greater than 3.50 to 1.00, the Company may, in its sole discretion, elect to increase the maximum Consolidated Leverage Ratio to 4.00 to 1.00 as of the end of the fiscal quarter in which the full payment for the Proposed MDL Settlement occurred and in any subsequent fiscal quarter ending on or prior to September 30, 2018; provided, however, in no event shall the elevated ratio permitted by the immediately preceding clause extend after September 30, 2018.
Note Purchase Agreement Amendments
The Company is a party to that certain (1) the Note Purchase Agreement dated as of August 18, 2010 among the Company and the holders of notes party thereto, pursuant to which, among other things, the Company issued (a) $175,000,000 aggregate principal amount of its 3.89% Senior Notes, Series A, due October 15, 2017 and (b) $225,000,000 aggregate principal amount of its 4.47% Senior Notes, Series B, due October 15, 2020 and (2) the First Amendment to Note Purchase Agreement dated as of August 13, 2015 among the Company and each of the institutions which is a signatory thereto (such Note Purchase Agreement, as so amended, the “2010 Note Purchase Agreement”).
The Company is a party to that certain (1) the Note Purchase Agreement dated as of October 22, 2012 among the Company and the holders of notes party thereto, pursuant to which, among other things, the Company issued (a) $125,000,000 aggregate principal amount of its 2.68% Senior Notes, Series A, due December 12, 2019 and (b) $125,000,000 aggregate principal amount of its 3.26% Senior Notes, Series B, due December 12, 2022 and (2) the First Amendment to Note Purchase Agreement dated as of August 13, 2015 among the Company and each of the institutions which is a signatory thereto (such Note Purchase Agreement, as so amended, the “2012 Note Purchase Agreement”).
The Company is a party to that certain (1) the Note Purchase Agreement dated as of April 30, 2015 among the Company and the holders of notes party thereto and (2) the First Amendment to Note Purchase Agreement dated as of June 30, 2015 among the Company and each of the institutions which is a signatory thereto, pursuant to which, among other things, the Company issued (a) $200,000,000 aggregate principal amount of its 2.72% Senior Notes, Series A, due July 1, 2022 and (b) $100,000,000 aggregate principal amount of its 2.79% Senior Notes, Series B, due July 1, 2023, and (3) the Second Amendment to Note Purchase Agreement dated as of August 13, 2015 among the Company and each of the institutions which is a signatory thereto (such Note Purchase Agreement, as amended by the amendments described in clauses (2) and (3) of this paragraph, the “2015A Note Purchase Agreement”).
The Company is a party to that certain Note Purchase Agreement dated as of October 1, 2015 among the Company and the holders of notes party thereto, pursuant to which, among other things, the Company issued (a) $150,000,000 aggregate principal amount of its 2.89% Senior Notes, Series A, due October 1, 2021 and (b) $150,000,000 aggregate principal amount of its 3.18% Senior Notes, Series B, due October 1, 2023 (the “2015B Note Purchase Agreement” and, together with the 2010 Note Purchase Agreement, the 2012 Note Purchase Agreement and the 2015A Note Purchase Agreement, the “Note Purchase Agreements”).
On July 28, 2017, the Company entered into that certain (1) Second Amendment to the 2010 Note Purchase Agreement, (2) Second Amendment to the 2012 Note Purchase Agreement, (3) Third Amendment to the 2015A Note Purchase Agreement, and (4) First Amendment to the 2015B Note
Purchase Agreement attached hereto as Exhibits 10.3 to 10.6, respectively (collectively, the “NPA Amendments”).
Each of the NPA Amendments amends its respective Note Purchase Agreement to, among other things, modify the definition of Consolidated EBITDA (Schedule B) and provisions relating to permissible Consolidated Leverage Ratio (Section 10.1(a)(i)) to permit the Company to make the payment contemplated by the Proposed MDL Settlement.
Each of the NPA Amendments amends the financial covenant in its respective Note Purchase Agreement to provide that if, at the end of any fiscal quarter, the Consolidated Leverage Ratio, on a pro forma basis as of such date and immediately after giving effect to the settlement payment of the Proposed MDL Settlement is greater than 3.50 to 1.00, the Company may, in its sole discretion, elect to increase the maximum Consolidated Leverage Ratio to 4.00 to 1.00 as of the end of the fiscal quarter in which the full payment for the Proposed MDL Settlement occurred and in any subsequent fiscal quarter ending on or prior to September 30, 2018 (the “MDL Period”); provided, however, in no event shall the elevated ratio permitted by the immediately preceding clause extend after September 30, 2018.
Each NPA Amendment further provides that, if at the end of any fiscal quarter of the Company during the MDL Period, the Consolidated Leverage Ratio exceeded 3.75 to 1.00 but is at or below 4.00 to 1.00 (an “MDL Leverage Increase”), the per annum interest rate (including any Default Rate, if applicable) otherwise applicable shall be increased by 50 basis points (.50%) from the date of such MDL Leverage Increase to but not including the date that the Consolidated Leverage Ratio is 3.75 to 1.00 or less.
Other Related Matters
The representations, warranties and covenants of each of the parties contained in the Debt Agreement Amendments have been made solely for the benefit of the parties to the applicable documents. In addition, such representations, warranties and covenants (i) have been made only for purposes of the Debt Agreement Amendments, (ii) have been qualified by confidential disclosures made by the parties in connection with the Debt Agreement Amendments, (iii) are subject to materiality qualifications contained in the Debt Agreement Amendments that may differ from what may be viewed as material by investors, (iv) were made only as of the date of the Debt Agreement Amendments or such other date as is specified in the Debt Agreement Amendments and (v) have been included in the Debt Agreement Amendments for the purpose of allocating risk between the contracting parties rather than establishing matters as facts. Accordingly, the Debt Agreement Amendments are included with this filing only to provide investors with information regarding the terms of the Debt Agreement Amendments, and not to provide investors with any other factual information regarding the parties or their respective businesses. Investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the parties or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Debt Agreement Amendments, which subsequent information may or may not be fully reflected in the public disclosures by the parties or their subsidiaries. The Debt Agreement Amendments should not be read alone, but should instead be read in conjunction with the other information regarding any party that is or will be contained in, or incorporated by reference into, the Forms 10-K, Forms 10-Q and other documents that such party files with the U.S. Securities and Exchange Commission.
The foregoing summary of the Debt Agreement Amendments does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Debt Agreement Amendments attached as Exhibits 10.1 to 10.6 and incorporated herein by reference.
Item 8.01 Other Events.
The Company sought the foregoing Debt Agreement Amendments in connection with the Proposed MDL Settlement with Plaintiffs and their counsel in the MDL Action. The Proposed MDL Settlement is not yet final and remains subject to Court approval of a final agreement. In the Proposed MDL Settlement, the Company is admitting no fault or wrongdoing whatsoever, and it is entering into the Proposed MDL Settlement in order to avoid the cost and uncertainty of litigation.
Under the terms of the Proposed MDL Settlement that will be submitted to the Court for approval, the Company will establish a common fund of $295 million from which will be paid all compensation to members of the settlement class, attorneys’ fees to class counsel, incentive awards to the named class representatives and all costs of notice and administration. The Company’s existing contracts with its customers will remain in force, while the Company will also establish as part of the Proposed MDL Settlement guidelines for future price increases and provide customers additional transparency regarding such increases. The Proposed MDL Settlement will also address additional matters, including the availability of alternative dispute resolution for members of the settlement class.
Cautionary Statement Regarding Forward-Looking Statements
This Current Report on Form 8-K includes forward-looking statements that involve risks and uncertainties, some of which are beyond our control (for example, general economic and market conditions). Our actual results could differ significantly from the results described in the forward-looking statements. Factors that could cause such differences include changes in governmental regulation of the collection, transportation, treatment and disposal of regulated waste or the proper handling and protection of personal and confidential information, increases in transportation and other operating costs, the level of governmental enforcement of regulations governing regulated waste collection and treatment or the proper handling and protection of personal and confidential information, our obligations to service our substantial indebtedness and to comply with the covenants and restrictions contained in our private placement notes, term loan credit facility and revolving credit facility, our ability to execute our acquisition strategy and to integrate acquired businesses, competition and demand for services in the regulated waste and secure information destruction industries, political, economic and currency risks related to our foreign operations, impairments of goodwill or other indefinite-lived intangibles, variability in the demand for services we provide on a project or non-recurring basis, exposure to environmental liabilities, fluctuations in the price we receive for the sale of paper, the outcome of pending or future litigation, disruptions in or attacks on our information technology systems, compliance with existing and future legal and regulatory requirements, as well as other factors described in our filings with the U.S. Securities and Exchange Commission, including our most recently filed Annual Report on Form 10-K. As a result, past financial performance should not be considered a reliable indicator of future performance, and investors should not use historical trends to anticipate future results or trends. We make no commitment to disclose any subsequent revisions to forward-looking statements.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
The following exhibits are filed with this report:
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Exhibit |
Description |
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10.1 |
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10.2 |
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10.6 |
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The Company agrees to furnish supplementally a copy of any omitted exhibit or appendix to the Securities and Exchange Commission upon request. |
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Dated: August 2, 2017 |
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STERICYCLE, INC. |
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By: |
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/s/ Daniel V. Ginnetti |
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Daniel V. Ginnetti |
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Executive Vice President and Chief Financial Officer |
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EXHIBIT 10.1 |
Execution Version |
STERICYCLE, INC.
THIRD AMENDMENT
This THIRD AMENDMENT, dated as of July 28, 2017 (this “Amendment”), is entered into by and among STERICYCLE, INC., a Delaware corporation (the “Company”), the Subsidiaries of the Company signatory hereto (collectively, the “Subsidiary Loan Parties”), the Lenders (as defined below) signatory hereto and BANK OF AMERICA, N.A., as administrative agent (in such capacity, the “Administrative Agent”) under that certain Second Amended and Restated Credit Agreement, dated as of June 3, 2014 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”), among the Company, the financial institutions from time to time party thereto as lenders (the “Lenders”) or as “L/C Issuers”, the Subsidiaries of the Company party thereto as “Designated Borrowers” and the Administrative Agent. Terms defined in the Credit Agreement (as defined below) and not otherwise defined herein shall have their defined meanings in the Credit Agreement when used herein.
W I T N E S S E T H
WHEREAS, the Company has requested that the Lenders and the Administrative Agent amend the Credit Agreement as set forth herein; and
WHEREAS, the Administrative Agent and the Lenders have agreed, on the terms and conditions set forth below, to so amend the Credit Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each of the parties hereto hereby agrees as follows:
1.Amendments to Credit Agreement. Subject to the satisfaction of the conditions precedent set forth in Section 2 hereof:
(a)The following defined term is added to Section 1.01 of the Credit Agreement in proper alphabetical order:
“MDL Contract Action” means the claims made against the Company in In re: Stericycle, Inc., Steri-Safe Contract Litigation, Case No. 13 C 5795, MDL No. 2455 brought in the United States District Court for the Northern District of Illinois Eastern Division.
(b)The definition of “Consolidated EBITDA” in Section 1.01 is amended to read as follows:
“Consolidated EBITDA” means, for any period, for the Company and its Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income taxes payable by the Company and its
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Subsidiaries for such period, (iii) depreciation and amortization expense, (iv) other non-recurring expenses of the Company and its Subsidiaries reducing such Consolidated Net Income which do not represent a cash item in such period or any future period, (v) non-cash stock compensation expenses of the Company and its Subsidiaries incurred in such period, (vi) up to $45,000,000 in the aggregate of cash charges associated with the settlement of the TCPA Action, (vii) up to $295,000,000 in the aggregate of cash charges associated with the settlement of the MDL Contract Action, and (viii) up to $5,000,000 in the aggregate of cash charges related to legal fees and expenses associated with the MDL Contract Action, the Third Amendment of this Agreement and the corresponding amendments to the Term Loan Credit Agreement and Senior Notes minus (b) the following to the extent included in calculating such Consolidated Net Income: (i) Federal, state, local and foreign income tax credits of the Company and its Subsidiaries for such period and (ii) all non-cash items increasing Consolidated Net Income for such period; provided, however, that Consolidated EBITDA shall be increased by the amount of Transaction Costs incurred during such period to the extent such amount was deducted in determining Consolidated Net Income for such period.
(c)Section 7.11(b) is amended to read as follows:
(b)Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end of any fiscal quarter of the Company to be greater than 3.75 to 1.00; provided that if the Consolidated Leverage Ratio, on a pro forma basis as of any such date and immediately after giving effect to the settlement payment of the MDL Contract Action is greater than 3.50 to 1.00, the Company may, in its sole discretion, elect to increase the maximum Consolidated Leverage Ratio permitted by this Section 7.11(b) to 4.00 to 1.00 as of the end of the fiscal quarter in which the settlement of the MDL Contract Action occurred and in any subsequent fiscal quarter ending on or prior to September 30, 2018; provided, further, in no event shall the elevated ratio permitted by the immediately preceding proviso extend after September 30, 2018. Such election shall be made by the delivery of a written notice by the Company to the Administrative Agent making reference to this Section 7.11(b) and notifying the Administrative Agent of the Company’s election to increase the maximum Consolidated Leverage Ratio as provided above on or prior to the date of the actual or required delivery of a Compliance Certificate for the fiscal quarter in which the settlement of the MDL Contract Action occurred.
(d)The existing Exhibit D is deleted and replaced with Exhibit D attached hereto.
2.Conditions to Effectiveness. The provisions of Section 1 of this Amendment shall be deemed to have become effective as of the date of this Amendment, but such effectiveness shall be expressly conditioned upon the following:
(a)the Administrative Agent’s receipt of counterparts of this Amendment, duly executed and delivered on behalf of each of the Company, each other Loan Party and the Required Lenders;
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(b)the Company having paid the fees in the amounts and at the times specified in the letter agreement, dated as of July 6, 2017, between the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated (the “Amendment Fee Letter”), which fees shall be deemed fully earned and due on the effective date and shall be nonrefundable;
(c)satisfactory evidence of substantially contemporaneous amendments in form and substance satisfactory to the Administrative Agent, including amendments in substance parallel to those in Section 1 of this Amendment, with respect to (x) the 2010 Note Purchase Agreement, (y) the 2012 Note Purchase Agreement, and (z) the 2015 Note Purchase Agreement; and
(d)unless waived by the Administrative Agent, the Company having paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the date hereof.
3.Representations and Warranties. Each Loan Party hereby represents and warrants that:
(a)This Amendment has been duly executed and delivered by each Loan Party that is party hereto. This Amendment constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms (except, in any case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, examinership or similar laws affecting creditors’ rights generally and by principles of equity);
(b)Each Loan Party (i) is duly organized or formed, validly existing and in good standing (if applicable in such Loan Party’s jurisdiction of incorporation or organization) under the Laws of the jurisdiction of its incorporation or organization and (ii) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to execute, deliver and perform its obligations under this Amendment;
(c)The execution, delivery and performance by each Loan Party of this Amendment have been duly authorized by all necessary corporate or other organizational action, and do not and will not (i) contravene the terms of any of such Person’s Organization Documents; (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (A) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (B) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (iii) violate any Law;
(d)No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Amendment;
(e)No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Amendment; and
(f)The representations and warranties contained in Article V of the Credit Agreement and the other Loan Documents are true and correct on and as of the date hereof,
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except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that the representations and warranties contained in subsections (a) and (b) of Section 5.05 thereof shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 thereof.
4.Governing Law; Jurisdiction; Waiver of Jury Trial; Etc. This AMENDMENT shall be governed by, and construed in accordance with, the internal laws and decisions (as opposed to conflicts of law provisions) of the state of Illinois. This Amendment shall be further subject to the provisions of Sections 10.14 and 10.15 of the Credit Agreement.
5.Counterparts; Integration; Effectiveness. This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Amendment, together with the Amendment Fee Letter and the other Loan Documents, constitutes the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Delivery of an executed counterpart of a signature page of this Amendment by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Amendment.
6.Severability. If any provision of this Amendment is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Amendment shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
7.Effect. Upon the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import shall mean and be a reference to the Credit Agreement as modified hereby and each reference in the other Loan Documents to the Credit Agreement, “thereunder,” “thereof,” or words of like import shall mean and be a reference to the Credit Agreement as modified hereby. This Amendment shall constitute a Loan Document for purposes of the Credit Agreement.
8.Reaffirmation. Except as specifically modified by this Amendment, the Credit Agreement shall remain in full force and effect and is hereby ratified and confirmed.
9.Guarantors. Each Guarantor hereby consents to this Amendment and reaffirms the terms and conditions of each Guaranty and each other Loan Document executed by it and acknowledges and agrees that each and every such Guaranty and other Loan Document executed by such Guarantor in connection with the Credit Agreement remains in full force and effect and is hereby reaffirmed, ratified and confirmed.
[Remainder of this page intentionally left blank; signature pages follow]
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IN WITNESS WHEREOF, each of the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer on the date first above written.
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BANK OF AMERICA, N.A., |
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as Administrative Agent |
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By: |
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/s/ Ronaldo Naval |
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Name: |
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Ronaldo Naval |
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Title: |
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Vice President |
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BANK OF AMERICA, N.A., as a Lender, an L/C Issuer and Swing Line Lender |
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By: |
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/s/ Matthew N. Walt |
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Name: |
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Matthew N. Walt |
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Title: |
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Vice President |
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STERICYCLE – THIRD AMENDMENT
Signature Page
STERICYCLE, INC., as the Company
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By: |
/s/ Daniel Ginnetti |
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Name: |
Daniel Ginnetti |
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Title: |
Executive Vice President and Chief Financial Officer |
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STERICYCLE INTERNATIONAL, LTD., as a Designated Borrower and Subsidiary Guarantor
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By: |
/s/ Daniel Ginnetti |
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Name: |
Daniel Ginnetti |
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Title: |
Director |
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STERICYCLE INTERNATIONAL, LLC, as a Designated Borrower and Subsidiary Guarantor
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By: |
/s/ Daniel Ginnetti |
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Name: |
Daniel Ginnetti |
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Title: |
Vice President and Manager |
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STERICYCLE EUROPE S.à.r.l., as a Designated Borrower and Subsidiary Guarantor
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By: |
/s/ Daniel Ginnetti |
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Name: |
Daniel Ginnetti |
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Title: |
A manager |
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STERICYCLE, ULC, as a Designated Borrower and Subsidiary Guarantor
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By: |
/s/ Daniel Ginnetti |
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Name: |
Daniel Ginnetti |
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Title: |
Secretary and Treasurer |
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STERICYCLE INTERNATIONAL HOLDINGS LIMITED, as a Designated Borrower and Subsidiary Guarantor
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By: |
/s/ Daniel Ginnetti |
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Name: |
Daniel Ginnetti |
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Title: |
Director |
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STERICYCLE – THIRD AMENDMENT
Signature Page
SRCL LIMITED, as a Subsidiary Guarantor
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By: |
/s/ Daniel Ginnetti |
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Name: |
Daniel Ginnetti |
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Title: |
Director |
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PSC, LLC, as a Subsidiary Guarantor
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By: |
/s/ Daniel Ginnetti |
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Name: |
Daniel Ginnetti |
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Title: |
Vice President, Secretary and Treasurer |
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STERICYCLE ENVIRONMENTAL SOLUTIONS, INC., as a Subsidiary Guarantor
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By: |
/s/ Daniel Ginnetti |
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Name: |
Daniel Ginnetti |
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Title: |
Vice President and Manager |
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PSC ENVIRONMENTAL SERVICES, LLC, as a Subsidiary Guarantor
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By: |
/s/ Daniel Ginnetti |
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Name: |
Daniel Ginnetti |
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Title: |
Vice President and Manager |
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STERICYCLE ESPAÑA S.L.U., as a Subsidiary Guarantor
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By: |
/s/ Daniel Ginnetti |
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Name: |
Daniel Ginnetti |
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Title: |
Joint and Several Director (Administrador Solidario) |
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STERICYCLE – THIRD AMENDMENT
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as a Lender |
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By: |
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/s/ Krys Szremski |
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Name: |
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Krys Szremski |
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Title: |
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Executive Director |
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STERICYCLE – THIRD AMENDMENT
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HSBC BANK USA, NATIONAL ASSOCIATION, as a Lender |
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By: |
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/s/ Andrew Bicker |
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Name: |
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Andrew Bicker |
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Title: |
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Director |
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STERICYCLE – THIRD AMENDMENT
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MUFG UNION BANK, N.A., as a Lender |
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By: |
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/s/ Maria F. Maia |
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Name: |
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Maria F. Maia |
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Title: |
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Director |
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STERICYCLE – THIRD AMENDMENT
Signature Page
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By: |
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/s/ Carolina Gutierrez |
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Name: |
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Carolina Gutierrez |
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Title: |
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Vice President |
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STERICYCLE – THIRD AMENDMENT
Signature Page
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By: |
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/s/ Katsuyuki Kubo |
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Name: |
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Katsuyuki Kubo |
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Title: |
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Managing Director |
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STERICYCLE – THIRD AMENDMENT
Signature Page
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U.S. BANK NATIONAL ASSOCIATION, as a Lender |
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By: |
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/s/ James deVries |
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Name: |
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James DeVries |
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Title: |
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Senior Vice President |
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STERICYCLE – THIRD AMENDMENT
Signature Page
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as a Lender |
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By: |
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/s/ Isabella Battista |
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Name: |
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Isabella Battista |
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Title: |
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Director |
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STERICYCLE – THIRD AMENDMENT
Signature Page
STERICYCLE – THIRD AMENDMENT
Signature Page
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as a Lender |
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By: |
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/s/ Brittany Mondrane |
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Name: |
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Brittany Mondrane |
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Title: |
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Second Vice President |
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STERICYCLE – THIRD AMENDMENT
Signature Page
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By: |
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/s/ Michael S. Chen |
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Name: |
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Michael S. Chen |
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Title: |
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Senior Vice President |
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STERICYCLE – THIRD AMENDMENT
Signature Page
STERICYCLE – THIRD AMENDMENT
Signature Page
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PNC BANK, NATIONAL ASSOCIATION, as a Lender |
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By: |
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/s/ Brandon Norder |
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Name: |
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Brandon Norder |
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Title: |
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Senior Vice President |
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STERICYCLE – THIRD AMENDMENT
Signature Page
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CITIZENS BANK, NATIONAL ASSOCIATION, as a Lender |
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By: |
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/s/ Caroline Canole |
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Name: |
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Caroline Conole |
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Title: |
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Assistant Vice President |
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STERICYCLE – THIRD AMENDMENT
Signature Page
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UNICREDIT BANK AG, NEW YORK BRANCH, as a Lender |
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By: |
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/s/ Mathias Eichwald |
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Name: |
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Mathias Eichwald |
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Title: |
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Director |
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By: |
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/s/ Elaine Tung |
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Name: |
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Elaine Tung |
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Title: |
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Director |
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STERICYCLE – THIRD AMENDMENT
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By: |
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/s/ Joe Ellerbroek |
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Name: |
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Joe Ellerbroek |
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Title: |
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Vice President |
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STERICYCLE – THIRD AMENDMENT
Signature Page
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: _______________, _____
To:Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Second Amended and Restated Credit Agreement, dated as of June 3, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Stericycle, Inc., a Delaware corporation (the “Company”), the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, an L/C Issuer and Swing Line Lender.
The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the ______________________________ of the Company, and that, as such, he/she is authorized to execute and deliver this Certificate to the Administrative Agent on the behalf of the Company, and that:
[Use following paragraph 1 for fiscal year-end financial statements]
1.Attached hereto as Schedule 1 are the year-end audited financial statements required by Section 6.01(a) of the Agreement for the fiscal year of the Company ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section.
[Use following paragraph 1 for fiscal quarter-end financial statements]
1.Attached hereto as Schedule 1 are the unaudited financial statements required by Section 6.01(b) of the Agreement for the fiscal quarter of the Company ended as of the above date. Such financial statements fairly present the financial condition, results of operations and cash flows of the Company and its Consolidated Subsidiaries in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes.
2.The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Company during the accounting period covered by the attached financial statements.
3.A review of the activities of the Company during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Company performed and observed all its Obligations under the Loan Documents, and
[to the best knowledge of the undersigned during such fiscal period, the Company performed and observed each covenant and condition of the Loan Documents applicable to it, and no Default has occurred and is continuing.]
–or–
[the following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:]
4.The representations and warranties of (i) the Borrowers contained in Article V of the Agreement and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection with the Loan Documents, are true and correct on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Compliance Certificate, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Agreement, including the statements in connection with which this Compliance Certificate is delivered.
5.The financial covenant analyses and information set forth on Schedule 2 attached hereto are true and accurate on and as of the date of this Certificate.
6.Since the date of delivery of the most recent Compliance Certificate, no Persons have become Material Subsidiaries [other than _______________].
[signature page follows]
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of _______________, _____.
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STERICYCLE, INC. |
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By: |
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Name: |
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Title: |
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For the Quarter/Year ended _______________ (“Statement Date”)
SCHEDULE 2
to the Compliance Certificate
($ in 000’s)
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I. |
Section 7.11 (a) – Consolidated Interest Coverage Ratio. |
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A. |
Consolidated EBITDA for four consecutive fiscal quarters ending on above date (“Subject Period”): |
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1. |
Consolidated Net Income for Subject Period: |
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$ |
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2. |
Consolidated Interest Charges for Subject Period: |
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$ |
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3. |
Provision for income taxes for Subject Period: |
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$ |
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4. |
Depreciation expenses for Subject Period: |
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$ |
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5. |
Amortization expenses for Subject Period: |
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$ |
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6. |
Non-recurring non-cash reductions of Consolidated Net Income for Subject Period: |
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$ |
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7. |
Non-cash stock compensation expenses incurred in the Subject Period: |
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$ |
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8. |
Cash charges associated with the settlement of the TCPA Action not to exceed $45,000,000 in the aggregate: |
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$ |
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9. |
Cash charges associated with the settlement of the MDL Contract Action not to exceed $295,000,000 in the aggregate: |
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$ |
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10. |
Cash charges associated with related to legal fees and expenses associated with the MDL Contract Action, the Third Amendment of the Credit Agreement and the corresponding amendments to the Term Loan Credit Agreement and Senior Notes not to exceed $5,000,000 in the aggregate: |
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$ |
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11. |
Income tax credits for Subject Period: |
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$ |
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12. |
Non-cash additions to Consolidated Net Income for Subject Period: |
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$ |
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13. |
Transaction Costs incurred during the Subject Period to the extent that such amount was deducted in determining Consolidated Net Income for the Subject Period |
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$ |
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14. |
Consolidated EBITDA (Lines I.A.1 + 2 + 3 + 4 + 5 + 6 +7 + 8 + 9 + 10 – 11 – 12 + 13): |
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$ |
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B. |
Consolidated Interest Charges for Subject Period: |
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C. |
Consolidated Interest Coverage Ratio (Line I.A.14 ÷Line I.B): |
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to 1.00 |
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D. |
Minimum Permitted: |
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3.00 to 1.00 |
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II. |
Section 7.11 (b) – Consolidated Leverage Ratio. |
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A. |
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1. |
Consolidated Funded Indebtedness at Statement Date |
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$ |
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2. |
Unrestricted Cash at Statement Date |
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$ |
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3. |
Difference between Line II.A.1 and Line II.A.2. |
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$ |
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B. |
Consolidated EBITDA for Subject Period (Line I.A.14 above): |
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$ |
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C. |
Consolidated Leverage Ratio (Line II.A.3 ÷ Line II.B): |
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to 1.00 |
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D. |
Maximum Permitted: |
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to 1.001 |
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1 |
The Consolidated Leverage Ratio shall not be greater than 3.75 to 1.00; provided that if the Consolidated Leverage Ratio, on a pro forma basis as of any such date and immediately after giving effect to the settlement payment of the MDL Contract Action is greater than 3.50 to 1.00, the Company may, in its sole discretion, elect to increase the maximum Consolidated Leverage Ratio permitted by this Section 7.11(b) to 4.00 to 1.00 as of the end of the fiscal quarter in which the settlement of the MDL Contract Action occurred and in any subsequent fiscal quarter ending on or prior to September 30, 2018; provided, further, in no event shall the elevated ratio permitted by the immediately preceding proviso extend after September 30, 2018. Such election shall be made by the delivery of a written notice by the Company to the Administrative Agent making reference to this Section 7.11(b) and notifying the Administrative Agent of the Company’s election to increase the maximum Consolidated Leverage Ratio as provided above on or prior to the date of the actual or required delivery of a Compliance Certificate for the fiscal quarter in which the settlement of the MDL Contract Action occurred. |
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EXHIBIT 10.2 |
Execution Version |
STERICYCLE, INC.
FIRST AMENDMENT
This FIRST AMENDMENT, dated as of July 28, 2017 (this “Amendment”), is entered into by and among STERICYCLE, INC., a Delaware corporation (the “Borrower”), the Subsidiaries of the Borrower signatory hereto (collectively, the “Subsidiary Loan Parties”), the Lenders (as defined below) signatory hereto and BANK OF AMERICA, N.A., as administrative agent (in such capacity, the “Administrative Agent”) under that certain Term Loan Credit Agreement, dated as of August 21, 2015 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”), among the Borrower, the financial institutions from time to time party thereto as lenders (the “Lenders”), and the Administrative Agent. Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders and the Administrative Agent amend the Credit Agreement as set forth herein; and
WHEREAS, the Administrative Agent and the Lenders have agreed, on the terms and conditions set forth below, to so amend the Credit Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each of the parties hereto hereby agrees as follows:
1. Amendments to Credit Agreement. Subject to the satisfaction of the conditions precedent set forth in Section 2 hereof:
(a) The following defined term is added to Section 1.01 of the Credit Agreement in proper alphabetical order:
“MDL Contract Action” means the claims made against the Borrower in In re: Stericycle, Inc., Steri-Safe Contract Litigation, Case No. 13 C 5795, MDL No. 2455 brought in the United States District Court for the Northern District of Illinois Eastern Division.
(b) The definition of “Consolidated EBITDA” in Section 1.01 is amended to read as follows:
“Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income taxes payable by the Borrower and its Subsidiaries for such period, (iii) depreciation and amortization expense, (iv) other non-recurring expenses of the Borrower and its Subsidiaries reducing such Consolidated Net
90033000
Income which do not represent a cash item in such period or any future period, (v) non-cash stock compensation expenses of the Borrower and its Subsidiaries incurred in such period, (vi) up to $45,000,000 in the aggregate of cash charges associated with the settlement of the TCPA Action, (vii) up to $295,000,000 in the aggregate of cash charges associated with the settlement of the MDL Contract Action, and (viii) up to $5,000,000 in the aggregate of cash charges related to legal fees and expenses associated with the MDL Contract Action, the First Amendment of this Agreement and the corresponding amendments to the Existing Credit Agreement and Senior Notes minus (b) the following to the extent included in calculating such Consolidated Net Income: (i) Federal, state, local and foreign income tax credits of the Borrower and its Subsidiaries for such period and (ii) all non-cash items increasing Consolidated Net Income for such period; provided, however, that Consolidated EBITDA shall be increased by the amount of Transaction Costs incurred during such period to the extent such amount was deducted in determining Consolidated Net Income for such period.
(c) Section 7.11(b) is amended to read as follows:
(b)Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end of any fiscal quarter of the Borrower to be greater than 3.75 to 1.00; provided that if the Consolidated Leverage Ratio, on a pro forma basis as of any such date and immediately after giving effect to the settlement payment of the MDL Contract Action is greater than 3.50 to 1.00, the Borrower may, in its sole discretion, elect to increase the maximum Consolidated Leverage Ratio permitted by this Section 7.11(b) to 4.00 to 1.00 as of the end of the fiscal quarter in which the settlement of the MDL Contract Action occurred and in any subsequent fiscal quarter ending on or prior to September 30, 2018; provided, further, in no event shall the elevated ratio permitted by the immediately preceding proviso extend after September 30, 2018. Such election shall be made by the delivery of a written notice by the Borrower to the Administrative Agent making reference to this Section 7.11(b) and notifying the Administrative Agent of the Borrower’s election to increase the maximum Consolidated Leverage Ratio as provided above on or prior to the date of the actual or required delivery of a Compliance Certificate for the fiscal quarter in which the settlement of the MDL Contract Action occurred.
(d) The existing Exhibit C is deleted and replaced with Exhibit C attached hereto.
2. Conditions to Effectiveness. The provisions of Section 1 of this Amendment shall be deemed to have become effective as of the date of this Amendment, but such effectiveness shall be expressly conditioned upon the following:
(a) the Administrative Agent’s receipt of counterparts of this Amendment, duly executed and delivered on behalf of each of the Borrower, each Subsidiary Loan Party and the Required Lenders;
(b) the Borrower having paid the fees in the amounts and at the times specified in the letter agreement, dated as of July 6, 2017, between the Borrower and Merrill Lynch, Pierce,
90033000
2
Fenner & Smith Incorporated (the “Amendment Fee Letter”), which fees shall be deemed fully earned and due on the effective date and shall be nonrefundable;
(c) satisfactory evidence of substantially contemporaneous amendments in form and substance satisfactory to the Administrative Agent, including amendments in substance parallel to those in Section 1 of this Amendment, with respect to (x) the 2010 Note Purchase Agreement, (y) the 2012 Note Purchase Agreement, and (z) the 2015 Note Purchase Agreement; and
(d) unless waived by the Administrative Agent, the Borrower having paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to the date hereof.
3. Representations and Warranties. Each Loan Party hereby represents and warrants that:
(a) This Amendment has been duly executed and delivered by each Loan Party that is party hereto. This Amendment constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms (except, in any case, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, examinership or similar laws affecting creditors’ rights generally and by principles of equity);
(b) Each Loan Party (i) is duly organized or formed, validly existing and in good standing (if applicable in such Loan Party’s jurisdiction of incorporation or organization) under the Laws of the jurisdiction of its incorporation or organization and (ii) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to execute, deliver and perform its obligations under this Amendment;
(c) The execution, delivery and performance by each Loan Party of this Amendment have been duly authorized by all necessary corporate or other organizational action, and do not and will not (i) contravene the terms of any of such Person’s Organization Documents; (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (A) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (B) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (iii) violate any Law;
(d) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Amendment;
(e) No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Amendment; and
(f) The representations and warranties contained in Article V of the Credit Agreement and the other Loan Documents are true and correct on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date and except that the representations
90033000
3
and warranties contained in subsections (a) and (b) of Section 5.05 thereof shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 thereof.
4. Governing Law; Jurisdiction; Waiver of Jury Trial; Etc. This AMENDMENT shall be governed by, and construed in accordance with, the internal laws and decisions (as opposed to conflicts of law provisions) of the state of NEW YORK. This Amendment shall be further subject to the provisions of Sections 10.14 and 10.15 of the Credit Agreement.
5. Counterparts; Integration; Effectiveness. This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Amendment, together with the Amendment Fee Letter and the other Loan Documents, constitutes the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Delivery of an executed counterpart of a signature page of this Amendment by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Amendment.
6. Severability. If any provision of this Amendment is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Amendment shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
7.Effect. Upon the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import shall mean and be a reference to the Credit Agreement as modified hereby and each reference in the other Loan Documents to the Credit Agreement, “thereunder,” “thereof,” or words of like import shall mean and be a reference to the Credit Agreement as modified hereby. This Amendment shall constitute a Loan Document for purposes of the Credit Agreement.
8. Reaffirmation. Except as specifically modified by this Amendment, the Credit Agreement shall remain in full force and effect and is hereby ratified and confirmed.
9. Guarantors. Each Guarantor hereby consents to this Amendment and reaffirms the terms and conditions of each Guaranty and each other Loan Document executed by it and acknowledges and agrees that each and every such Guaranty and other Loan Document executed by such Guarantor in connection with the Credit Agreement remains in full force and effect and is hereby reaffirmed, ratified and confirmed.
[Remainder of this page intentionally left blank; signature pages follow]
90033000
4
IN WITNESS WHEREOF, each of the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer on the date first above written.
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BANK OF AMERICA, N.A., |
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as Administrative Agent |
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By: |
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/s/ Ronaldo Naval |
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Name: |
Ronaldo Naval |
|
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Title: |
Vice President |
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BANK OF AMERICA, N.A., as Lender |
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By: |
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/s/ Matthew N. Walt |
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Name: |
Matthew N. Walt |
|
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Title: |
Vice President |
|
STERICYCLE – FIRST AMENDMENT
Signature Page
STERICYCLE, INC., as the Borrower
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By: |
/s/ Daniel Ginnetti |
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Name: |
Daniel Ginnetti |
|
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Title: |
Executive Vice President and Chief Financial Officer |
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STERICYCLE INTERNATIONAL, LTD., as a Guarantor
|
By: |
/s/ Daniel Ginnetti |
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Name: |
Daniel Ginnetti |
|
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Title: |
Director |
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STERICYCLE INTERNATIONAL, LLC, as a Guarantor
|
By: |
/s/ Daniel Ginnetti |
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Name: |
Daniel Ginnetti |
|
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Title: |
Vice President and Manager |
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STERICYCLE EUROPE S.à.r.l., as a Guarantor
|
By: |
/s/ Daniel Ginnetti |
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Name: |
Daniel Ginnetti |
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Title: |
A manager |
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STERICYCLE, ULC, as a Designated Borrower and Subsidiary Guarantor
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By: |
/s/ Daniel Ginnetti |
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Name: |
Daniel Ginnetti |
|
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Title: |
Secretary and Treasurer |
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STERICYCLE INTERNATIONAL HOLDINGS LIMITED, as a Guarantor
|
By: |
/s/ Daniel Ginnetti |
|
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Name: |
Daniel Ginnetti |
|
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Title: |
Director |
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STERICYCLE – FIRST AMENDMENT
Signature Page
SRCL LIMITED, as a Guarantor
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By: |
/s/ Daniel Ginnetti |
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Name: |
Daniel Ginnetti |
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Title: |
Director |
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PSC, LLC, as a Guarantor
|
By: |
/s/ Daniel Ginnetti |
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Name: |
Daniel Ginnetti |
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Title: |
Vice President, Secretary and Treasurer |
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PSC HOLDINGS, INC., as a Guarantor
|
By: |
/s/ Daniel Ginnetti |
|
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Name: |
Daniel Ginnetti |
|
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Title: |
Vice President and Manager |
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PSC ENVIRONMENTAL SERVICES, LLC, as a Guarantor
|
By: |
/s/ Daniel Ginnetti |
|
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Name: |
Daniel Ginnetti |
|
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Title: |
Vice President and Manager |
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STERICYCLE ESPAÑA S.L.U., as a Guarantor
|
By: |
/s/ Daniel Ginnetti |
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Name: |
Daniel Ginnetti |
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Title: |
Joint and Several Director (Administrador Solidario) |
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STERICYCLE – FIRST AMENDMENT
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a Lender |
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By: |
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/s/ David Cirigliano |
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Name: |
David Cirigliano |
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Title: |
Authorized Signatory |
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STERICYCLE – FIRST AMENDMENT
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a Lender |
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By: |
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/s/ Krys Szremski |
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Name: |
Krys Szremski |
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Title: |
Executive Director |
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STERICYCLE – FIRST AMENDMENT
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By: |
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/s/ Andrew Bicker |
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Name: |
Andrew Bicker |
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Title: |
Director |
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STERICYCLE – FIRST AMENDMENT
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STERICYCLE – FIRST AMENDMENT
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By: |
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/s/ Carolina Gutierrez |
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Name: |
Carolina Gutierrez |
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Title: |
Vice President |
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STERICYCLE – FIRST AMENDMENT
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STERICYCLE – FIRST AMENDMENT
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By: |
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/s/ Katsuyuki Kubo |
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Name: |
Katsuyuki Kubo |
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Title: |
Managing Director |
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STERICYCLE – FIRST AMENDMENT
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By: |
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/s/ Kathleen D. Schurr |
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Name: |
Kathleen D. Schurr |
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Title: |
Vice President |
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STERICYCLE – FIRST AMENDMENT
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By: |
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/s/ Isabella Battista |
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Name: |
Isabella Battista |
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Title: |
Director |
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STERICYCLE – FIRST AMENDMENT
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By: |
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/s/ Joe Ellerbroek |
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Name: |
Joe Ellerbroek |
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Title: |
Vice President |
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STERICYCLE – FIRST AMENDMENT
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STERICYCLE – FIRST AMENDMENT
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By: |
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/s/ Brittany Mondane |
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Name: |
Brittany Mondane |
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Title: |
Second Vice President |
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STERICYCLE – FIRST AMENDMENT
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STERICYCLE – FIRST AMENDMENT
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By: |
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/s/ Brandon Norder |
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Name: |
Brandon Norder |
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Title: |
Senior Vice President |
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STERICYCLE – FIRST AMENDMENT
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By: |
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/s/ Matthias Eichwald |
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Name: |
Matthias Eichwald |
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Title: |
Director |
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By: |
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/s/ Elaine Tung |
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Name: |
Elaine Tung |
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Title: |
Director |
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STERICYCLE – FIRST AMENDMENT
Signature Page
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: _______________, _____
To:Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Term Loan Credit Agreement, dated as of August 21, 2015 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement”; the terms defined therein being used herein as therein defined), among Stericycle, Inc., a Delaware corporation (the “Borrower”), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent.
The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the ______________________________ of the Borrower, and that, as such, he/she is authorized to execute and deliver this Compliance Certificate to the Administrative Agent on the behalf of the Borrower, and that:
[Use following paragraph 1 for fiscal year-end financial statements]
1.Attached hereto as Schedule 1 are the year-end audited financial statements required by Section 6.01(a) of the Agreement for the fiscal year of the Borrower ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section.
[Use following paragraph 1 for fiscal quarter-end financial statements]
1.Attached hereto as Schedule 1 are the unaudited financial statements required by Section 6.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of the above date. Such financial statements fairly present the financial condition, results of operations and cash flows of the Borrower and its Consolidated Subsidiaries in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes.
2.The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Borrower during the accounting period covered by the attached financial statements.
3.A review of the activities of the Borrower during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Borrower performed and observed all its Obligations under the Loan Documents, and
\69195775
[to the best knowledge of the undersigned during such fiscal period, the Borrower performed and observed each covenant and condition of the Loan Documents applicable to it, and no Default has occurred and is continuing.]
–or–
[the following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:]
4.The representations and warranties of the Borrower contained in Article V of the Agreement and each Loan Party contained in each other Loan Document are true and correct in all material respects (or, to the extent any such representation and warranty is modified by materiality or Material Adverse Effect, in all respects) on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or, to the extent any such representation and warranty is modified by materiality or Material Adverse Effect, in all respects) as of such earlier date, and except that for purposes of this Compliance Certificate, the representations and warranties contained in Sections 5.05(a) and (b) of the Agreement shall be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b) of the Agreement, respectively, including the statements in connection with which this Compliance Certificate is delivered.
5.The financial covenant analyses and information set forth on Schedule 2 attached hereto are true and accurate on and as of the date of this Compliance Certificate.
6.Since the date of delivery of the most recent Compliance Certificate, no Persons have become Material Subsidiaries [other than _______________].
[Remainder of page intentionally left blank; signature page follows]
\69195775
IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as of _______________, _____.
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STERICYCLE, INC. |
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Title: |
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\69195775
For the Quarter/Year ended _______________ (“Statement Date”)
SCHEDULE 2
to the Compliance Certificate
($ in 000’s)
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I. |
Section 7.11 (a) – Consolidated Interest Coverage Ratio. |
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A. |
Consolidated EBITDA for four consecutive fiscal quarters ending on above date (“Subject Period”): |
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1. |
Consolidated Net Income for Subject Period: |
$ |
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2. |
Consolidated Interest Charges for Subject Period: |
$ |
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3. |
Provision for income taxes for Subject Period: |
$ |
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4. |
Depreciation expenses for Subject Period: |
$ |
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5. |
Amortization expenses for Subject Period: |
$ |
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6. |
Non-recurring non-cash reductions of Consolidated Net Income for Subject Period: |
$ |
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7. |
Non-cash stock compensation expenses incurred in the Subject Period: |
$ |
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8. |
Cash charges associated with the settlement of the TCPA Action not to exceed $45,000,000 in the aggregate: |
$ |
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9. |
Cash charges associated with the settlement of the MDL Contract Action not to exceed $295,000,000 in the aggregate: |
$ |
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10. |
Cash charges associated with related to legal fees and expenses associated with the MDL Contract Action, the First Amendment of the Credit Agreement and the corresponding amendments to the Existing Credit Agreement and Senior Notes and Senior Notes not to exceed $5,000,000 in the aggregate: |
$ |
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11. |
Income tax credits for Subject Period: |
$ |
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12. |
Non-cash additions to Consolidated Net Income for Subject Period: |
$ |
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\69195775
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13. |
Transaction Costs incurred during the Subject Period to the extent that such amount was deducted in determining Consolidated Net Income for the Subject Period |
$ |
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14. |
Consolidated EBITDA (Lines I.A.1 + 2 + 3 + 4 + 5 + 6 +7 + 8 + 9 + 10 – 11 – 12 + 13): |
$ |
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B. |
Consolidated Interest Charges for Subject Period: |
$ |
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C. |
Consolidated Interest Coverage Ratio (Line I.A.14 ÷Line I.B): |
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to 1.00 |
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D. |
Minimum Permitted: |
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3.00 to 1.00 |
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II. |
Section 7.11 (b) – Consolidated Leverage Ratio. |
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A. |
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$ |
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1. |
Consolidated Funded Indebtedness at Statement Date |
$ |
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2. |
Unrestricted Cash at Statement Date |
$ |
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3. |
Difference between Line II.A.1 and Line II.A.2. |
$ |
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B. |
Consolidated EBITDA for Subject Period (Line I.A.14 above): |
$ |
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C. |
Consolidated Leverage Ratio (Line II.A.3 ÷ Line II.B): |
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to 1.00 |
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D. |
Maximum Permitted: |
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to 1.001 |
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1 |
The Consolidated Leverage Ratio shall not be greater than 3.75 to 1.00; provided that if the Consolidated Leverage Ratio, on a pro forma basis as of any such date and immediately after giving effect to the settlement payment of the MDL Contract Action is greater than 3.50 to 1.00, the Borrower may, in its sole discretion, elect to increase the maximum Consolidated Leverage Ratio permitted by this Section 7.11(b) to 4.00 to 1.00 as of the end of the fiscal quarter in which the settlement of the MDL Contract Action occurred and in any subsequent fiscal quarter ending on or prior to September 30, 2018; provided, further, in no event shall the elevated ratio permitted by the immediately preceding proviso extend after September 30, 2018. Such election shall be made by the delivery of a written notice by the Borrower to the Administrative Agent making reference to this Section 7.11(b) and notifying the Administrative Agent of the Borrower’s election to increase the maximum Consolidated Leverage Ratio as provided above on or prior to the date of the actual or required delivery of a Compliance Certificate for the fiscal quarter in which the settlement of the MDL Contract Action occurred. |
\69195775
|
EXHIBIT 10.3 |
Execution Version |
Stericycle, Inc.
___________________________________
Second Amendment
Dated as of July 28, 2017
to
Note Purchase Agreement
Dated as of August 18, 2010
___________________________________
Re:3.89% Senior Notes, Series A, due October 15, 2017
and
4.47% Senior Notes, Series B, due October 15, 2020
Exhibit 10.3
4242756
Second Amendment to Note Purchase Agreement
This Second Amendment dated as of July 28, 2017 (the or this “Agreement”) to the Note Purchase Agreement referred to below is between Stericycle, Inc., a Delaware corporation (the “Company”), and each of the institutions which is a signatory to this Agreement (collectively, the “Noteholders”).
Recitals:
Whereas, the Company and each of the Noteholders have heretofore entered into the Note Purchase Agreement dated as of August 18, 2010 as amended by the First Amendment to the Note Purchase Agreement dated as of August 13, 2015 (as amended, the “Note Purchase Agreement”), pursuant to which the Company issued on or about October 15, 2010 (a) $175,000,000 aggregate principal amount of its 3.89% Senior Notes, Series A, due October 15, 2017 (as amended, the “Series A Notes”) and (b) $225,000,000 aggregate principal amount of its 4.47% Senior Notes, Series B, due October 15, 2020 (as amended, the “Series B Notes” and together with the Series A Notes, collectively, the “Notes”);
Whereas, the Company and the Noteholders now desire to amend the Note Purchase Agreement and the Notes in the respects, but only in the respects, hereinafter set forth;
Whereas, all capitalized terms used herein and not defined herein shall have the meaning specified in the Note Purchase Agreement;
Whereas, all requirements of law have been fully complied with and all other acts and things necessary to make this Agreement a valid, legal and binding instrument according to its terms for the purposes herein expressed have been done or performed.
Now, therefore, upon the full and complete satisfaction of the conditions precedent to effectiveness set forth in Section 3.1 hereof, and for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Company and each of the Noteholders do hereby agree as follows:
|
Section 1. |
Amendments. |
Section 1.1.Section 10.1(a) of the Note Purchase Agreement is hereby amended and restated in its entirety to read as follows:
(i) The Company will not permit the Consolidated Leverage Ratio as of the end of any fiscal quarter of the Company to exceed 3.75 to 1.00; provided that if the Consolidated Leverage Ratio, on a pro forma basis as of any such date and immediately after giving effect to the settlement payment of the MDL Contract Action, is greater than 3.50 to 1.00, the Company may, in its sole discretion, elect to increase the maximum Consolidated Leverage
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Stericycle, Inc. |
Second Amendment |
Ratio permitted by this Section 10.1(a)(i) to 4.00 to 1.00 as of the end of the fiscal quarter in which the settlement payment of the MDL Contract Action occurred and in any subsequent fiscal quarter ending on or prior to September 30, 2018 (the “MDL Period”); provided further in no event shall the elevated ratio permitted by the immediately preceding proviso extend after September 30, 2018. Such election shall be made by the delivery of a written notice by the Company to the holders of Notes making reference to this Section 10.1(a) and notifying the holders of Notes of the Company’s election to increase the maximum Consolidated Leverage Ratio as provided above on or prior to the date of the actual or required delivery of a certificate required under Section 7.2 for the fiscal quarter in which the settlement payment of the MDL Contract Action occurred; and
(ii) If at the end of any fiscal quarter of the Company during the MDL Period the Consolidated Leverage Ratio exceeded 3.75 to 1.00 (an “MDL Leverage Increase”), the per annum interest rate (including any Default Rate, if applicable) otherwise applicable to each series of the Notes as specified in the first paragraph thereof shall be increased by 50 basis points (.50%) (the “MDL Leverage Increased Interest Rate”) from the date of such MDL Leverage Increase to but not including the date that the Consolidated Leverage Ratio is 3.75 to 1.00 or less. The Company shall promptly, and in any event within 10 Business Days, following an MDL Leverage Increase notify the holders of the Notes in writing that an MDL Leverage Increase has commenced and the date of such commencement. Payment of the MDL Leverage Increased Interest Rate shall not constitute a waiver of any Default or Event of Default hereunder.”
Section 1.2.Additional Definitions. Schedule B to the Note Purchase Agreement is hereby amended to insert the following definitions, each in its respective alphabetical order:
“Bank Credit Agreement” means the Second Amended and Restated Credit Agreement dated as of June 3, 2014 by and among the Company, certain Subsidiaries of the Company named therein, Bank of America, N.A., as administrative agent, and the other financial institutions party thereto, as amended, restated, joined, supplemented or otherwise modified from time to time, and any renewals, extensions or replacements thereof, which constitute the primary bank credit facility of the Company and its Subsidiaries.
“MDL Contract Action” means the claims made against the Company in In re: Stericycle, Inc., Steri-Safe Contract Litigation,
- 2 -
|
Stericycle, Inc. |
Second Amendment |
Case No. 13 C 5795, MDL No. 2455 brought in the United States District Court for the Northern District of Illinois Eastern Division.
“MDL Leverage Increase” is defined in Section 10.1(a)(ii).
“MDL Leverage Increased Interest Rate” is defined in Section 10.1(a)(ii).
“MDL Period” is defined in Section 10.1(a)(i).
“Other Note Agreements” means each of the following note purchase agreements among the Company and the holders of notes party thereto: (i) the Note Purchase Agreement dated as of October 22, 2012, (ii) the Note Purchase Agreement dated as April 30, 2015 and (iii) the Note Purchase Agreement dated as of October 1, 2015, each as amended, restated, joined, supplemented or otherwise modified from time to time.
“Second Amendment” means the Second Amendment dated as of July 28, 2017 to this Agreement between the Company and the holders party thereto.
“Term Loan Agreement” means the Term Loan Credit Agreement dated as of August 21, 2015 by and among the Company, certain Subsidiaries of the Company named therein, Bank of America, N.A., as administrative agent, and the other financial institutions party thereto, as amended, restated, joined, supplemented or otherwise modified from time to time.
Section 1.3.Amended Definitions. Schedule B to the Note Purchase Agreement is hereby amended by amending and restating each of the following definitions in its entirety to read as follows:
“Consolidated EBITDA” means, for any period, for the Company and its Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the provision for federal, state, local and foreign income taxes payable by the Company and its Subsidiaries for such period, (iii) depreciation and amortization expense, (iv) other non-recurring expenses of the Company and its Subsidiaries reducing such Consolidated Net Income which do not represent a cash item in such period or any future period, (v) non-cash stock compensation expenses of the Company and its Subsidiaries incurred in such
- 3 -
|
Stericycle, Inc. |
Second Amendment |
period, (vi) up to $45,000,000 in the aggregate of cash charges associated with the settlement of the TCPA Action, (vii) up to $295,000,000 in the aggregate of cash charges associated with the settlement of the MDL Contract Action, and (viii) up to $5,000,000 in the aggregate of cash charges related to legal fees and expenses associated with (x) the MDL Contract Action, (y) the Second Amendment and (z) the corresponding amendments to the Bank Credit Agreement, the Term Loan Agreement and Other Note Agreements minus (b) the following to the extent included in calculating such Consolidated Net Income: (i) federal, state, local and foreign income tax credits of the Company and its Subsidiaries for such period and (ii) all non-cash items increasing Consolidated Net Income for such period; provided, however, that Consolidated EBITDA shall be increased by the amount of Transaction Costs incurred during such period to the extent such amount was deducted in determining Consolidated Net Income for such period. For purposes of calculating Consolidated EBITDA for any period of four consecutive quarters, if during such period the Company or any Subsidiary shall have made any Acquisition or disposed of any Person or of all or substantially all of the operating assets of any Person, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such transaction occurred on the first day of such period.
“Increased Interest Rate” means the occurrence of a Primary Increased Interest Rate, the Secondary Increased Interest Rate or MDL Leverage Increased Interest Rate, as applicable.
|
Section 2. |
Representations and Warranties of the Company. |
Section 2.1.To induce the Noteholders to execute and deliver this Agreement, the Company represents and warrants (which representations shall survive the execution and delivery of this Agreement) to the Noteholders that:
(a)this Agreement has been duly authorized, executed and delivered by the Company and, upon execution and delivery thereof by the parties hereto, this Agreement constitutes the legal, valid and binding obligation, contract and agreement of the Company enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(b)the Note Purchase Agreement, as amended by this Agreement, constitutes the legal, valid and binding obligation, contract and agreement of the Company enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
- 4 -
|
Stericycle, Inc. |
Second Amendment |
(c)the execution, delivery and performance by the Company of this Agreement (i) has been duly authorized by all requisite corporate actions on the part of the Company, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation applicable to the Company or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any material indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, or (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in clause (iii)(A)(3) of this Section 2.1(c);
(d)as of the date hereof and after giving effect to this Agreement, no Default or Event of Default has occurred which is continuing; and
(e)the representations and warranties contained in Section 5 of the Note Purchase Agreement are true and correct in all material respects with the same force and effect as if made by the Company on and as of the date hereof, except to the extent that any such representation or warranty expressly relates to an earlier date.
|
Section 3. |
Conditions to Effectiveness of Amendments and Waivers. |
Section 3.1.The amendments to the Note Purchase Agreement set forth herein shall not become effective until, and shall become effective when (the “Effective Date”), each of the following conditions shall have been satisfied:
(a)executed counterparts of this Agreement, duly executed by the Company and the holders of 51% in principal amount of the outstanding Notes, shall have been delivered to the Noteholders;
(b)copies of a favorable written opinion of counsel to the Company addressed to each of the Noteholders as to matters set forth in Section 2.1(a) through (c) hereof (provided that the opinion regarding Section 2.1(c)(iii)(3) will relate to the Other Note Agreements, Bank Credit Agreement and the Term Loan Agreement (each as defined in the Note Purchase Agreement after giving effect to this Agreement)), in form and substance satisfactory to the Noteholders, shall have been delivered to the Noteholders;
(c)the representations and warranties of the Company set forth in Section 2 hereof shall be true and correct on and with respect to the date hereof, and the execution and delivery by the Company of this Agreement shall constitute certification by the Company of the same;
(d)the Company shall have paid a fee to each holder of Notes equal to five basis points (.05%) on the outstanding principal amount of Notes held by each such holder of Note as of the Effective Date;
- 5 -
|
Stericycle, Inc. |
Second Amendment |
(e)the Company shall have paid the fees and expenses of Chapman and Cutler LLP, special counsel to the Noteholders, incurred in connection with the negotiation, preparation, approval, execution and delivery of this Agreement for which an invoice has been provided;
(f)the Company shall have delivered copies of an amendment to each of the Bank Credit Agreement and the Term Loan Agreement (as defined in the Note Purchase Agreement after giving effect to this Agreement), each amending such agreements in substance consistent with the amendments to the Note Purchase Agreement as contemplated by this Agreement; and
(g)the Company shall have delivered copies of an amendment to each of the Other Note Agreements (as defined in the Note Purchase Agreement after giving effect to this Agreement) between the Company and the purchasers named therein, each amending such agreements in substance consistent with the amendments to the Note Purchase Agreement as contemplated by this Agreement.
Upon receipt and satisfaction of all of the foregoing, such amendments shall become effective.
|
Section 4. |
Miscellaneous. |
Section 4.1. Upon a request from any Noteholder, the Company will replace each Note currently held by such Noteholder with a revised Note in the form of Exhibit 1(a) or 1(b), as applicable, as amended by that certain First Amendment referenced in the recitals of this Agreement. The form of Note under the Note Purchase Agreement includes a reference to the “Increased Interest Rate” and the Company acknowledges that such reference shall be deemed to reference the Increased Interest Rate as defined in the Note Purchase Agreement after giving effect to this Amendment.
Section 4.2.This Agreement shall be construed in connection with and as part of the Note Purchase Agreement, and except as modified and expressly amended by this Agreement, all terms, conditions and covenants contained in the Note Purchase Agreement are hereby ratified and confirmed and shall be and remain in full force and effect.
Section 4.3.Any and all notices, requests, certificates and other instruments, including the Notes, may refer to the “Note Purchase Agreement” or the “Note Purchase Agreement dated as of August 18, 2010” without making specific reference to this Agreement, but nevertheless all such references shall be deemed to include this Agreement unless the context shall otherwise require.
Section 4.4.The descriptive headings of the various Sections or parts of this Agreement are for convenience only and shall not affect the meaning or construction of any of the provisions hereof.
- 6 -
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Stericycle, Inc. |
Second Amendment |
Section 4.5.This Agreement shall be governed by and construed in accordance with New York law excluding choice‑of‑law principles of the law of New York that would require the application of the laws of jurisdiction other than New York.
Section 4.6.This Agreement may be executed in any number of counterparts, each executed counterpart constituting an original, but all together only one agreement. This Agreement, together with the Note Purchase Agreement (as amended hereby) and the Notes, constitutes the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.
- 7 -
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Stericycle, Inc. |
Second Amendment |
In Witness Whereof, the parties hereto have executed this Agreement as of the Effective Date.
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Stericycle, Inc. |
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By |
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/s/ Daniel V. Ginnetti |
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Name: |
Daniel V. Ginnetti |
|
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Title: |
Chief Financial Officer, Executive Vice |
|
|
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President |
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Stericycle, Inc. |
Second Amendment |
|
Metropolitan Life Insurance Company |
||
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By |
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/s/ John Wills |
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Name: |
John Wills |
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Title: |
Senior Vice President & Managing Director |
|
Union Fidelity Life Insurance Company |
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by MetLife Investment Advisors, LLC, Its Investment |
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Adviser |
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By |
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/s/ Frank O. Montfalcone |
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Name: |
Frank O. Montfalcone |
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Title: |
Managing Director |
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Lincoln Benefit Life Company |
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by MetLife Investment Advisors, LLC, Its |
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Investment Adviser |
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By |
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/s/ Frank O. Montfalcone |
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Name: |
Frank O. Montfalcone |
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Title: |
Managing Director |
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Stericycle, Inc. |
Second Amendment |
Accepted and Agreed to:
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Allstate Life Insurance Company |
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By |
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/s/ Ryan Anderson |
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Name: |
Ryan Anderson |
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By |
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/s/ Jerry D. Zinkula |
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Name: |
Jerry D. Zinkula |
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Allstate Life Insurance Company Of New York |
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By |
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/s/ Ryan Anderson |
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Name: |
Ryan Anderson |
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By |
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/s/ Jerry D. Zinkula |
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Name: |
Jerry D. Zinkula |
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American Heritage Life Insurance Company |
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By |
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/s/ Ryan Anderson |
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Name: |
Ryan Anderson |
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By |
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/s/ Jerry D. Zinkula |
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Name: |
Jerry D. Zinkula |
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Stericycle, Inc. |
Second Amendment |
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New York Life Insurance Company |
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By |
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/s/ A. Post Howland |
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Name: |
A. Post Howland |
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Title: |
Vice President |
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New York Life Insurance And Annuity Corporation |
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by NYL Investors LLC Its Investment Manager |
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By |
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/s/ A. Post Howland |
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Name: |
A. Post Howland |
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Title: |
Vice President |
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New York Life Insurance and Annuity |
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Corporation Institutionally Owned Life |
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Insurance Separate Account (BOLI 30C) |
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by NYL Investors LLC Its Investment Manager |
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By |
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/s/ A. Post Howland |
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Name: |
A. Post Howland |
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Title: |
Vice President |
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Stericycle, Inc. |
Second Amendment |
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Hartford Life Insurance Company |
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Hartford Life and Accident Insurance Company |
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Hartford Fire Insurance Company |
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By: Hartford Investment Management Company |
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Their Agent and Attorney-in-Fact |
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By |
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/s/ John Knox |
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Name: |
John Knox |
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Title: |
Senior Vice President |
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Stericycle, Inc. |
Second Amendment |
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Nationwide Life Insurance Company |
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Nationwide Life and Annuity Insurance Company |
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By |
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/s/ Jason Comisar |
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Name: |
Jason Comisar |
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Title: |
Authorized Signatory |
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Stericycle, Inc. |
Second Amendment |
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Massachusetts Mutual Life Insurance Company |
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by Barings LLC as Investment Adviser |
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By |
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/s/ Andrew T. Kleeman |
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Name: |
Andrew T. Kleeman |
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Title: |
Managing Director |
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C.M. Life Insurance Company |
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by Barings LLC as Investment Adviser |
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By |
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/s/ Andrew T. Kleeman |
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Name: |
Andrew T. Kleeman |
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Title: |
Managing Director |
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Stericycle, Inc. |
Second Amendment |
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RiverSource Life Insurance Company |
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By |
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/s/ Thomas W. Murphy |
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Name: |
Thomas W. Murphy |
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Title: |
Vice President - Investments |
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Stericycle, Inc. |
Second Amendment |
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Thrivent Financial For Lutherans |
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By |
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/s/ Martin Rosucker |
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Name: |
Martin Rosucker |
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Title: |
Managing Director |
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Stericycle, Inc. |
Second Amendment |
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The Lincoln National Life Insurance Company |
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by Macquarie Investment Management Advisers, a series of Macquarie Investment Management Business Trust, Attorney-in-Fact |
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By |
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/s/ Phillip Lee |
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Name: |
Phillip Lee |
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Title: |
Vice President |
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Stericycle, Inc. |
Second Amendment |
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The Northwestern Mutual Life Insurance Company |
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by Northwestern Mutual Investment Management Company, LLC, Its Investment Adviser |
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By |
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/s/ David A. Barras |
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Name: |
David A. Barras |
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Title: |
Managing Director |
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Stericycle, Inc. |
Second Amendment |
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Jackson National Life Insurance Company |
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by PPM America, Inc. as attorney in fact, on behalf of Jackson National Life Insurance Company |
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By |
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/s/ Luke S. Stifflear |
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Name: |
Luke S. Stifflear |
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Title: |
Senior Managing Director |
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Stericycle, Inc. |
Second Amendment |
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Allianz Life Insurance Company of North America |
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by Allianz Global Investors U.S. LLC |
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As the authorized signatory and investment manager |
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By |
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/s/ Lawrence Halliday |
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Name: |
Lawrence Halliday |
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Title: |
Managing Director |
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Stericycle, Inc. |
Second Amendment |
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AXA Equitable Life Insurance Company |
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By |
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/s/ Amy Judd |
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Name: |
Amy Judd |
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Title: |
Investment Officer |
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Stericycle, Inc. |
Second Amendment |
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Southern Farm Bureau Life Insurance Company |
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By |
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/s/ David Devine |
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Name: |
David Devine |
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Title: |
Senior Portfolio Manager |
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Stericycle, Inc. |
Second Amendment |
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PHL Variable Insurance Company |
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By |
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/s/ Christopher M. Wilkos |
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Name: |
Christopher M. Wilkos |
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Title: |
Vice President |
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Phoenix Life Insurance Company |
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By |
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/s/ Christopher M. Wilkos |
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Name: |
Christopher M. Wilkos |
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Title: |
Vice President |
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Stericycle, Inc. |
Second Amendment |
Accepted and Agreed to:
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Modern Woodmen of America |
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By |
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/s/ Aaron R. Birkland |
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Name: |
John Wills |
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Title: |
Portfolio Manager, Private Placements |
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By |
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/s/ Christopher M. Cramer |
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Name: |
Christopher M. Cramer |
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Title: |
Manager, Fixed Income |
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Stericycle, Inc. |
Second Amendment |
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United of Omaha Life Insurance Company |
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By |
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/s/ Justin P. Kavan |
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Name: |
Justin P. Kavan |
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Title: |
Senior Vice President |
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Companion Life Insurance Company |
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By |
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/s/ Justin P. Kavan |
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Name: |
Justin P. Kavan |
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Title: |
Senior Vice President |
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Mutual of Omaha Life Insurance Company |
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By |
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/s/ Justin P. Kavan |
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Name: |
Justin P. Kavan |
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Title: |
Senior Vice President |
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Stericycle, Inc. |
Second Amendment |
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Woodmen of the World Life Insurance Society |
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By |
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/s/ Dean Holdsworth |
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Name: |
Dean Holdsworth |
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Title: |
Director Mortgage Loan/RE |
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Stericycle, Inc. |
Second Amendment |
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Knights of Columbus |
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By |
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/s/ Gilles Marchand |
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Name: |
Gilles Marchand |
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Title: |
Vice President, Credit Portfolio Manager |
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Stericycle, Inc. |
Second Amendment |
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Physicians Insurance a Mutual Company |
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CSAA Insurance Exchange |
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By |
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/s/ Naomi Joy |
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Name: |
Naomi Joy |
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Title: |
Vice President |
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Stericycle, Inc. |
Second Amendment |
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Country Life Insurance Company |
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By |
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/s/ John Jacobs |
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Name: |
John Jacobs |
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Title: |
Director – Fixed Income |
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Stericycle, Inc. |
Second Amendment |
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Physicians Mutual Insurance Company |
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by Prudential Private Placement Investors, L.P. (as Investment Advisor) |
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by Prudential Private Placement Investors, Inc. (as its General Partner) |
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By |
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/s/ Physicians Mutual Insurance Company |
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Name: |
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Title: |
Vice President |
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EXHIBIT 10.4 |
Execution Version |
Stericycle, Inc.
___________________________________
Second Amendment
Dated as of July 28, 2017
to
Note Purchase Agreement
Dated as of October 22, 2012
___________________________________
Re:2.68% Senior Notes, Series A, due December 12, 2019
and
3.26% Senior Notes, Series B, due December 12, 2022
4251928.01.04.doc
4242756
Second Amendment to Note Purchase Agreement
This Second Amendment dated as of July 28, 2017 (the or this “Agreement”) to the Note Purchase Agreement referred to below is between Stericycle, Inc., a Delaware corporation (the “Company”), and each of the institutions which is a signatory to this Agreement (collectively, the “Noteholders”).
Recitals:
Whereas, the Company and each of the Noteholders have heretofore entered into the Note Purchase Agreement dated as of October 22, 2012 as amended by the First Amendment to the Note Purchase Agreement dated as of August 13, 2015 (as amended, the “Note Purchase Agreement”), pursuant to which the Company issued on or about December 12, 2012 (a) $125,000,000 aggregate principal amount of its 2.68% Senior Notes, Series A, due December 12, 2019 (as amended, the “Series A Notes”) and (b) $125,000,000 aggregate principal amount of its 3.26% Senior Notes, Series B, due December 12, 2022 (as amended, the “Series B Notes” and together with the Series A Notes, collectively, the “Notes”);
Whereas, the Company and the Noteholders now desire to amend the Note Purchase Agreement and the Notes in the respects, but only in the respects, hereinafter set forth;
Whereas, all capitalized terms used herein and not defined herein shall have the meaning specified in the Note Purchase Agreement;
Whereas, all requirements of law have been fully complied with and all other acts and things necessary to make this Agreement a valid, legal and binding instrument according to its terms for the purposes herein expressed have been done or performed.
Now, therefore, upon the full and complete satisfaction of the conditions precedent to effectiveness set forth in Section 3.1 hereof, and for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Company and each of the Noteholders do hereby agree as follows:
|
Section 1. |
Amendments. |
Section 1.1.Section 10.1(a) of the Note Purchase Agreement is hereby amended and restated in its entirety to read as follows:
(i) The Company will not permit the Consolidated Leverage Ratio as of the end of any fiscal quarter of the Company to exceed 3.75 to 1.00; provided that if the Consolidated Leverage Ratio, on a pro forma basis as of any such date and immediately after giving effect to the settlement payment of the MDL Contract Action, is greater than 3.50 to 1.00, the Company may, in its sole discretion, elect to increase the maximum Consolidated Leverage
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Stericycle, Inc. |
Second Amendment |
Ratio permitted by this Section 10.1(a)(i) to 4.00 to 1.00 as of the end of the fiscal quarter in which the settlement payment of the MDL Contract Action occurred and in any subsequent fiscal quarter ending on or prior to September 30, 2018 (the “MDL Period”); provided further in no event shall the elevated ratio permitted by the immediately preceding proviso extend after September 30, 2018. Such election shall be made by the delivery of a written notice by the Company to the holders of Notes making reference to this Section 10.1(a) and notifying the holders of Notes of the Company’s election to increase the maximum Consolidated Leverage Ratio as provided above on or prior to the date of the actual or required delivery of a certificate required under Section 7.2 for the fiscal quarter in which the settlement payment of the MDL Contract Action occurred; and
(ii) If at the end of any fiscal quarter of the Company during the MDL Period the Consolidated Leverage Ratio exceeded 3.75 to 1.00 (an “MDL Leverage Increase”), the per annum interest rate (including any Default Rate, if applicable) otherwise applicable to each series of the Notes as specified in the first paragraph thereof shall be increased by 50 basis points (.50%) (the “MDL Leverage Increased Interest Rate”) from the date of such MDL Leverage Increase to but not including the date that the Consolidated Leverage Ratio is 3.75 to 1.00 or less. The Company shall promptly, and in any event within 10 Business Days, following an MDL Leverage Increase notify the holders of the Notes in writing that an MDL Leverage Increase has commenced and the date of such commencement. Payment of the MDL Leverage Increased Interest Rate shall not constitute a waiver of any Default or Event of Default hereunder.”
Section 1.2.Additional Definitions. Schedule B to the Note Purchase Agreement is hereby amended to insert the following definitions, each in its respective alphabetical order:
“Bank Credit Agreement” means the Second Amended and Restated Credit Agreement dated as of June 3, 2014 by and among the Company, certain Subsidiaries of the Company named therein, Bank of America, N.A., as administrative agent, and the other financial institutions party thereto, as amended, restated, joined, supplemented or otherwise modified from time to time, and any renewals, extensions or replacements thereof, which constitute the primary bank credit facility of the Company and its Subsidiaries.
“MDL Contract Action” means the claims made against the Company in In re: Stericycle, Inc., Steri-Safe Contract
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- 2 - |
|
|
Stericycle, Inc. |
Second Amendment |
Litigation, Case No. 13 C 5795, MDL No. 2455 brought in the United States District Court for the Northern District of Illinois Eastern Division.
“MDL Leverage Increase” is defined in Section 10.1(a)(ii).
“MDL Leverage Increased Interest Rate” is defined in Section 10.1(a)(ii).
“MDL Period” is defined in Section 10.1(a)(i).
“Other Note Agreements” means each of the following note purchase agreements among the Company and the holders of notes party thereto: (i) the Note Purchase Agreement dated as of August 18, 2010, (ii) the Note Purchase Agreement dated as of April 30, 2015 and (iii) the Note Purchase Agreement dated as of October 1, 2015, each as amended, restated, joined, supplemented or otherwise modified from time to time.
“Second Amendment” means the Second Amendment dated as of July 28, 2017 to this Agreement between the Company and the holders party thereto.
“Term Loan Agreement” means the Term Loan Credit Agreement dated as of August 21, 2015 by and among the Company, certain Subsidiaries of the Company named therein, Bank of America, N.A., as administrative agent, and the other financial institutions party thereto, as amended, restated, joined, supplemented or otherwise modified from time to time.
Section 1.3.Amended Definitions. Schedule B to the Note Purchase Agreement is hereby amended by amending and restating each of the following definitions in its entirety to read as follows:
“Consolidated EBITDA” means, for any period, for the Company and its Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the provision for federal, state, local and foreign income taxes payable by the Company and its Subsidiaries for such period, (iii) depreciation and amortization expense, (iv) other non-recurring expenses of the Company and its Subsidiaries reducing such Consolidated Net Income which do not represent a cash item in such period or any future period, (v) non-cash stock compensation
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- 3 - |
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Stericycle, Inc. |
Second Amendment |
expenses of the Company and its Subsidiaries incurred in such period, (vi) up to $45,000,000 in the aggregate of cash charges associated with the settlement of the TCPA Action, (vii) up to $295,000,000 in the aggregate of cash charges associated with the settlement of the MDL Contract Action, and (viii) up to $5,000,000 in the aggregate of cash charges related to legal fees and expenses associated with (x) the MDL Contract Action, (y) the Second Amendment and (z) the corresponding amendments to the Bank Credit Agreement, the Term Loan Agreement and Other Note Agreements minus (b) the following to the extent included in calculating such Consolidated Net Income: (i) federal, state, local and foreign income tax credits of the Company and its Subsidiaries for such period and (ii) all non-cash items increasing Consolidated Net Income for such period; provided, however, that Consolidated EBITDA shall be increased by the amount of Transaction Costs incurred during such period to the extent such amount was deducted in determining Consolidated Net Income for such period. For purposes of calculating Consolidated EBITDA for any period of four consecutive quarters, if during such period the Company or any Subsidiary shall have made any Acquisition or disposed of any Person or of all or substantially all of the operating assets of any Person, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such transaction occurred on the first day of such period.
“Increased Interest Rate” means the occurrence of a Primary Increased Interest Rate, Secondary Increased Interest Rate or MDL Leverage Increased Interest Rate, as applicable.
|
Section 2. |
Representations and Warranties of the Company. |
Section 2.1.To induce the Noteholders to execute and deliver this Agreement, the Company represents and warrants (which representations shall survive the execution and delivery of this Agreement) to the Noteholders that:
(a)this Agreement has been duly authorized, executed and delivered by the Company and, upon execution and delivery thereof by the parties hereto, this Agreement constitutes the legal, valid and binding obligation, contract and agreement of the Company enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(b)the Note Purchase Agreement, as amended by this Agreement, constitutes the legal, valid and binding obligation, contract and agreement of the Company enforceable against it in accordance with its terms, except as enforcement may be limited
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- 4 - |
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|
Stericycle, Inc. |
Second Amendment |
by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(c)the execution, delivery and performance by the Company of this Agreement (i) has been duly authorized by all requisite corporate actions on the part of the Company, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation applicable to the Company or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any material indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, or (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in clause (iii)(A)(3) of this Section 2.1(c);
(d)as of the date hereof and after giving effect to this Agreement, no Default or Event of Default has occurred which is continuing; and
(e)the representations and warranties contained in Section 5 of the Note Purchase Agreement are true and correct in all material respects with the same force and effect as if made by the Company on and as of the date hereof, except to the extent that any such representation or warranty expressly relates to an earlier date.
|
Section 3. |
Conditions to Effectiveness of Amendments and Waivers. |
Section 3.1.The amendments to the Note Purchase Agreement set forth herein shall not become effective until, and shall become effective when (the “Effective Date”), each of the following conditions shall have been satisfied:
(a)executed counterparts of this Agreement, duly executed by the Company and the holders of 51% in principal amount of the outstanding Notes, shall have been delivered to the Noteholders;
(b)copies of a favorable written opinion of counsel to the Company addressed to each of the Noteholders as to matters set forth in Section 2.1(a) through (c) hereof (provided that the opinion regarding Section 2.1(c)(iii)(3) will relate to the Other Note Agreements, Bank Credit Agreement and the Term Loan Agreement (each as defined in the Note Purchase Agreement after giving effect to this Agreement)), in form and substance satisfactory to the Noteholders, shall have been delivered to the Noteholders;
(c)the representations and warranties of the Company set forth in Section 2 hereof shall be true and correct on and with respect to the date hereof, and the execution and delivery by the Company of this Agreement shall constitute certification by the Company of the same;
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- 5 - |
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Stericycle, Inc. |
Second Amendment |
(d)the Company shall have paid a fee to each holder of Notes equal to five basis points (.05%) on the outstanding principal amount of Notes held by each such holder of Note as of the Effective Date;
(e)the Company shall have paid the fees and expenses of Chapman and Cutler LLP, special counsel to the Noteholders, incurred in connection with the negotiation, preparation, approval, execution and delivery of this Agreement for which an invoice has been provided;
(f)the Company shall have delivered copies of an amendment to each of the Bank Credit Agreement and the Term Loan Agreement (each as defined in the Note Purchase Agreement after giving effect to this Agreement), each amending such agreements in substance consistent with the amendments to the Note Purchase Agreement as contemplated by this Agreement; and
(g)the Company shall have delivered copies of an amendment to each of the Other Note Agreements (as defined in the Note Purchase Agreement after giving effect to this Agreement) between the Company and the purchasers named therein, each amending such agreements in substance consistent with the amendments to the Note Purchase Agreement as contemplated by this Agreement.
Upon receipt and satisfaction of all of the foregoing, such amendments shall become effective.
|
Section 4. |
Miscellaneous. |
Section 4.1.Upon a request from any Noteholder, the Company will replace each Note currently held by such Noteholder with a revised Note in the form of Exhibit 1(a) or 1(b), as applicable, as amended by that certain First Amendment referenced in the recitals of this Agreement. The form of Note under the Note Purchase Agreement includes a reference to the “Increased Interest Rate” and the Company acknowledges that such reference shall be deemed to reference the Increased Interest Rate as defined in the Note Purchase Agreement after giving effect to this Agreement.
Section 4.2.This Agreement shall be construed in connection with and as part of the Note Purchase Agreement, and except as modified and expressly amended by this Agreement, all terms, conditions and covenants contained in the Note Purchase Agreement are hereby ratified and confirmed and shall be and remain in full force and effect.
Section 4.3.Any and all notices, requests, certificates and other instruments, including the Notes, may refer to the “Note Purchase Agreement” or the “Note Purchase Agreement dated as of October 22, 2012” without making specific reference to this Agreement, but nevertheless all such references shall be deemed to include this Agreement unless the context shall otherwise require.
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- 6 - |
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|
Stericycle, Inc. |
Second Amendment |
Section 4.4.The descriptive headings of the various Sections or parts of this Agreement are for convenience only and shall not affect the meaning or construction of any of the provisions hereof.
Section 4.5.This Agreement shall be governed by and construed in accordance with New York law excluding choice‑of‑law principles of the law of New York that would require the application of the laws of jurisdiction other than New York.
Section 4.6.This Agreement may be executed in any number of counterparts, each executed counterpart constituting an original, but all together only one agreement. This Agreement, together with the Note Purchase Agreement (as amended hereby) and the Notes, constitutes the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.
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- 7 - |
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|
Stericycle, Inc. |
Second Amendment |
In Witness Whereof, the parties hereto have executed this Agreement as of the Effective Date.
|
Stericycle, Inc. |
||
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By |
|
/s/ Daniel V. Ginnetti |
|
|
Name: |
Daniel V. Ginnetti |
|
|
Title: |
Chief Financial Officer, Executive Vice President |
|
Stericycle, Inc. |
Second Amendment |
|
The Northwestern Mutual Life Insurance Company |
|||
|
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|||
|
by |
Northwestern Mutual Investment Management Company, LLC, Its Investment Adviser |
||
|
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|
By |
|
/s/ David A. Barras |
|
|
|
Name: |
David A. Barras |
|
|
|
Title: |
Managing Director |
|
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Stericycle, Inc. |
Second Amendment |
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The Lincoln National Life Insurance Company |
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by |
Macquarie Investment Management Advisers, a series of Macquarie Investment Management Business Trust, Attorney-in-Fact |
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By |
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/s/ Phillip Lee |
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Name: |
Phillip Lee |
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Title: |
Vice President |
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Stericycle, Inc. |
Second Amendment |
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Voya Retirement Insurance and Annuity Company (f/k/a ING Life Insurance and Annuity Company) |
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Voya Insurance and Annuity Company (f/k/a ING USA Annuity and Life Insurance Company) |
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Reliastar Life Insurance Company |
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Reliastar Life Insurance Company of New York |
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By: |
Voya Investment Management LLC, as Agent |
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By |
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/s/ Justin Stach |
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Name: |
Justin Stach |
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Title: |
Vice President |
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NN Life Insurance Company LTD. |
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By: |
Voya Investment Management LLC, as Agent |
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By |
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/s/ Justin Stach |
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Name: |
Justin Stach |
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Title: |
Vice President |
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Stericycle, Inc. |
Second Amendment |
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Principal Life Insurance Company |
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By: |
Principal Global Investors, LLC, a Delaware limited liability company, its authorized signatory |
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By |
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/s/ Eldwin A. Nichols |
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Name: |
Eldwin A. Nichols |
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Title: |
Counsel |
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By |
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/s/ Colin Pennycooke |
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Name: |
Colin Pennycooke |
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Title: |
Counsel |
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Symetra Life Insurance Company, a Washington Corporation |
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By: |
Principal Global Investors, LLC, a Delaware limited liability company, its authorized signatory |
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By |
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/s/ Eldwin A. Nichols |
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Name: |
Eldwin A. Nichols |
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Title: |
Counsel |
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By |
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/s/ Colin Pennycooke |
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Name: |
Colin Pennycooke |
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Title: |
Counsel |
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Stericycle, Inc. |
Second Amendment |
Accepted and Agreed to:
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Jackson National Life Insurance Company |
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by |
PPM America, Inc. as attorney in fact, on behalf of Jackson National Life Insurance Company |
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By |
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/s/ Luke S. Stifflear |
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Name: |
Luke S. Stifflear |
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Title: |
Senior Managing Director |
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Stericycle, Inc. |
Second Amendment |
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Thrivent Financial For Lutherans |
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By |
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/s/ Martin Rosucker |
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Name: |
Martin Rosucker |
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Title: |
Managing Director |
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Stericycle, Inc. |
Second Amendment |
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Mony Life Insurance Company |
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By |
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/s/ Philip E. Passafiume |
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Name: |
Philip E. Passafiume |
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Title: |
Director, Fixed Income |
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Stericycle, Inc. |
Second Amendment |
Accepted and Agreed to:
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AXA Equitable Life Insurance Company |
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By |
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/s/ Amy Judd |
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Name: |
Amy Judd |
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Title: |
Investment Officer |
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Stericycle, Inc. |
Second Amendment |
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RiverSource Life Insurance Company |
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By |
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/s/ Thomas W. Murphy |
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Name: |
Thomas W. Murphy |
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Title: |
Vice President - Investments |
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RiverSource Life Insurance Co. of New York |
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By |
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/s/ Thomas W. Murphy |
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Name: |
Thomas W. Murphy |
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Title: |
Vice President - Investments |
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Stericycle, Inc. |
Second Amendment |
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western-Southern Life Assurance Company |
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By |
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/s/ Daniel R. Larsen |
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Name: |
Daniel R. Larsen |
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Title: |
Vice President |
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By |
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/s/ Jeffrey L. Stainton |
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Name: |
Jeffrey L. Stainton |
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Title: |
Vice President |
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Columbus Life Insurance Company |
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By |
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/s/ Daniel R. Larsen |
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Name: |
Daniel R. Larsen |
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Title: |
Vice President |
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By |
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/s/ Wade M. Fugate |
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Name: |
Wade M. Fugate |
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Title: |
Vice President |
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Integrity Life Insurance Company |
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By |
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/s/ Daniel R. Larsen |
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Name: |
Daniel R. Larsen |
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Title: |
Vice President |
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By |
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/s/ Wade M. Fugate |
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Name: |
Wade M. Fugate |
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Title: |
Vice President |
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Stericycle, Inc. |
Second Amendment |
Accepted and Agreed to:
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Integrity Life Insurance Company Separate Account GPO |
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By |
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/s/ Daniel R. Larsen |
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Name: |
Daniel R. Larsen |
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Title: |
Vice President |
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By |
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/s/ Wade M. Fugate |
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Name: |
Wade M. Fugate |
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Title: |
Vice President |
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National Integrity Life Insurance Company Separate Account GPO |
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By |
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/s/ Daniel R. Larsen |
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Name: |
Daniel R. Larsen |
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Title: |
Vice President |
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By |
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/s/ Wade M. Fugate |
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Name: |
Wade M. Fugate |
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Title: |
Vice President |
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Stericycle, Inc. |
Second Amendment |
|
Great-West Life & Annuity Insurance Company |
|||
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By |
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/s/ Tad Anderson |
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Name: |
Tad Anderson |
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Title: |
Assistant Vice President, Investments |
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By |
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/s/ Ward Argusi |
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Name: |
Ward Argusi |
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Title: |
Assistant Vice President, Investments |
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Great-West Life & Annuity Insurance Company of South Carolina |
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By |
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/s/ Tad Anderson |
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Name: |
Tad Anderson |
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Title: |
Authorized Signatory |
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By |
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/s/ Ward Argusi |
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Name: |
Ward Argusi |
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Title: |
Authorized Signatory |
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|
Stericycle, Inc. |
Second Amendment |
Accepted and Agreed to:
|
Hartford Life Insurance Company |
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|||
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By: |
Hartford Investment Management Company, its Agent and Attorney-in-Fact |
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By |
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/s/ John Knox |
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Name: |
John Knox |
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|
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Title: |
Senior Vice President |
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|
Stericycle, Inc. |
Second Amendment |
|
The Guardian Life Insurance Company of America |
|||
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|||
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|||
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By |
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/s/ Amy Carroll |
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Name: |
Amy Carroll |
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|
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Title: |
Director |
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Stericycle, Inc. |
Second Amendment |
|
Modern Woodmen of America |
|||
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|||
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By |
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/s/ Aaron R. Birkland |
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Name: |
John Wills |
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Title: |
Portfolio Manager, Private Placements |
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By |
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/s/ Christopher M. Cramer |
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Name: |
Christopher M. Cramer |
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|
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Title: |
Manager, Fixed Income |
|
|
Stericycle, Inc. |
Second Amendment |
|
Trinity Universal Insurance Company |
|||
|
Catholic United Financial |
|||
|
Occidental Life Insurance Company of North Carolina |
|||
|
Western Fraternal Life Association |
|||
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|||
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|||
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By: |
Advantus Capital Management, Inc. |
||
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|||
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|||
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By |
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/s/ David Land |
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|
|
Name: |
David Land |
|
|
|
Title: |
Vice President |
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|
Stericycle, Inc. |
Second Amendment |
|
Southern Farm Life Insurance Company |
|||
|
|
|||
|
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|||
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By |
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/s/ David Devine |
|
|
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Name: |
David Devine |
|
|
|
Title: |
Senior Portfolio Manager |
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|
Stericycle, Inc. |
Second Amendment |
Accepted and Agreed to:
|
Woodmen of the World Life Insurance Society |
|||
|
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|||
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|||
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By |
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/s/ Dean Holdsworth |
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|
|
Name: |
Dean Holdsworth |
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|
|
Title: |
Director Mortgage Loan/RE |
|
|
Stericycle, Inc. |
Second Amendment |
|
American United Life Insurance Company |
|||
|
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|||
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|||
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By |
|
/s/ Michael I. Bullock |
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|
|
Name: |
Michael I. Bullock |
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|
|
Title: |
Vice President, Private Placements |
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|
Stericycle, Inc. |
Second Amendment |
|
Ameritas Life Insurance Corp. successor by merger to Acacia Life Insurance Company |
|||
|
Ameritas Life Insurance Corp. successor by merger to The union Central Life Insurance Company |
|||
|
Ameritas Life Insurance Corp. of New York |
|||
|
|
|||
|
By |
Ameritas Investment Partners, Inc., as Agent |
||
|
|
|||
|
|
|||
|
By |
|
/s/ Tina Udell |
|
|
|
Name: |
Tina Udell |
|
|
|
Title: |
Vice President & Managing Director |
|
|
Stericycle, Inc. |
Second Amendment |
|
USAA Life Insurance Company |
|||
|
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|||
|
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|||
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By |
|
/s/ James F. Jackson, Jr. |
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|
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Name: |
James F. Jackson, Jr. |
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|
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Title: |
Assistant Vice President |
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|
United Services Automobile Association |
|||
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|||
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|||
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By |
|
/s/ James F. Jackson, Jr. |
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|
|
Name: |
James F. Jackson, Jr. |
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|
|
Title: |
Assistant Vice President |
|
|
Stericycle, Inc. |
Second Amendment |
|
Country Life Insurance Company |
|||
|
|
|||
|
|
|||
|
By |
|
/s/ John Jacobs |
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|
|
Name: |
John Jacobs |
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|
|
Title: |
Director – Fixed Income |
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|
Stericycle, Inc. |
Second Amendment |
|
ProAssurance Casualty Company |
|||
|
ProAssurance Indemnity Company, Inc. |
|||
|
|
|
||
|
By |
Prime Advisors, Inc., its Attorney-in-Fact |
||
|
|
|||
|
|
|||
|
By |
|
/s/ Naomi Joy |
|
|
|
Name: |
Naomi Joy |
|
|
|
Title: |
Vice President |
|
|
Stericycle, Inc. |
Second Amendment |
|
State of Wisconsin Investment Board |
|||
|
|
|||
|
|
|||
|
By |
|
/s/ Christopher P. Prestigiacomo |
|
|
|
Name: |
Christopher P. Prestigiacomo |
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|
|
Title: |
Portfolio Manager |
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|
EXHIBIT 10.5 |
Execution Version |
Stericycle, Inc.
___________________________________
Third Amendment
Dated as of July 28, 2017
to
Note Purchase Agreement
Dated as of April 30, 2015
___________________________________
Re:2.72% Senior Notes, Series A, due July 1, 2022
and
2.79% Senior Notes, Series B, due July 1, 2023
4251892.01.04.doc
4242756
Third Amendment to Note Purchase Agreement
This Third Amendment dated as of July 28, 2017 (the or this “Agreement”) to the Note Purchase Agreement referred to below is between Stericycle, Inc., a Delaware corporation (the “Company”), and each of the institutions which is a signatory to this Agreement (collectively, the “Noteholders”).
Recitals:
Whereas, the Company and each of the Noteholders have heretofore entered into the Note Purchase Agreement dated as of April 30, 2015, as amended by the First Amendment to the Note Purchase Agreement dated as of June 30, 2015 and the Second Amendment to the Note Purchase Agreement dated as of August 13, 2015 (as amended, the “Note Purchase Agreement”), pursuant to which the Company issued on or about July 31, 2015 (a) $200,000,000 aggregate principal amount of its 2.72% Senior Notes, Series A, due July 1, 2022 (as amended, the “Series A Notes”) and (b) $100,000,000 aggregate principal amount of its 2.79% Senior Notes, Series B, due July 1, 2023 (as amended, the “Series B Notes” and together with the Series A Notes, collectively, the “Notes”);
Whereas, the Company and the Noteholders now desire to amend the Note Purchase Agreement and the Notes in the respects, but only in the respects, hereinafter set forth;
Whereas, all capitalized terms used herein and not defined herein shall have the meaning specified in the Note Purchase Agreement;
Whereas, all requirements of law have been fully complied with and all other acts and things necessary to make this Agreement a valid, legal and binding instrument according to its terms for the purposes herein expressed have been done or performed.
Now, therefore, upon the full and complete satisfaction of the conditions precedent to effectiveness set forth in Section 3.1 hereof, and for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Company and each of the Noteholders do hereby agree as follows:
Section 1.Amendments.
Section 1.1.Section 10.1(a) of the Note Purchase Agreement is hereby amended and restated in its entirety to read as follows:
(i) The Company will not permit the Consolidated Leverage Ratio as of the end of any fiscal quarter of the Company to exceed 3.75 to 1.00; provided that if the Consolidated Leverage Ratio, on a pro forma basis as of any such date and immediately after giving effect to the settlement payment of the MDL Contract Action, is greater than 3.50 to 1.00, the Company may, in its sole
|
Stericycle, Inc. |
Third Amendment |
discretion, elect to increase the maximum Consolidated Leverage Ratio permitted by this Section 10.1(a)(i) to 4.00 to 1.00 as of the end of the fiscal quarter in which the settlement payment of the MDL Contract Action occurred and in any subsequent fiscal quarter ending on or prior to September 30, 2018 (the “MDL Period”); provided further in no event shall the elevated ratio permitted by the immediately preceding proviso extend after September 30, 2018. Such election shall be made by the delivery of a written notice by the Company to the holders of Notes making reference to this Section 10.1(a) and notifying the holders of Notes of the Company’s election to increase the maximum Consolidated Leverage Ratio as provided above on or prior to the date of the actual or required delivery of a certificate required under Section 7.2 for the fiscal quarter in which the settlement payment of the MDL Contract Action occurred; and
(ii) If at the end of any fiscal quarter of the Company during the MDL Period the Consolidated Leverage Ratio exceeded 3.75 to 1.00 (an “MDL Leverage Increase”), the per annum interest rate (including any Default Rate, if applicable) otherwise applicable to each series of the Notes as specified in the first paragraph thereof shall be increased by 50 basis points (.50%) (the “MDL Leverage Increased Interest Rate”) from the date of such MDL Leverage Increase to but not including the date that the Consolidated Leverage Ratio is 3.75 to 1.00 or less. The Company shall promptly, and in any event within 10 Business Days, following an MDL Leverage Increase notify the holders of the Notes in writing that an MDL Leverage Increase has commenced and the date of such commencement. Payment of the MDL Leverage Increased Interest Rate shall not constitute a waiver of any Default or Event of Default hereunder.”
Section 1.2.Additional Definitions. Schedule B to the Note Purchase Agreement is hereby amended to insert the following definitions, each in its respective alphabetical order:
“MDL Contract Action” means the claims made against the Company in In re: Stericycle, Inc., Steri-Safe Contract Litigation, Case No. 13 C 5795, MDL No. 2455 brought in the United States District Court for the Northern District of Illinois Eastern Division.
“MDL Leverage Increase” is defined in Section 10.1(a)(ii).
“MDL Leverage Increased Interest Rate” is defined in Section 10.1(a)(ii).
- 2 -
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Stericycle, Inc. |
Third Amendment |
“MDL Period” is defined in Section 10.1(a)(i).
“Other Note Agreements” means each of the following note purchase agreements among the Company and the holders of notes party thereto: (i) the Note Purchase Agreement dated as of August 18, 2010, (ii) the Note Purchase Agreement dated as of October 22, 2012 and (iii) the Note Purchase Agreement dated as of October 1, 2015, each as amended, restated, joined, supplemented or otherwise modified from time to time.
“Term Loan Agreement” means the Term Loan Credit Agreement dated as of August 21, 2015 by and among the Company, certain Subsidiaries of the Company named therein, Bank of America, N.A., as administrative agent, and the other financial institutions party thereto, as amended, restated, joined, supplemented or otherwise modified from time to time.
“Third Amendment” means the Third Amendment dated as of July 28, 2017 to this Agreement between the Company and the holders party thereto.
Section 1.3.Amended Definitions. Schedule B to the Note Purchase Agreement is hereby amended by amending and restating each of the following definitions in its entirety to read as follows:
“Consolidated EBITDA” means, for any period, for the Company and its Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the provision for federal, state, local and foreign income taxes payable by the Company and its Subsidiaries for such period, (iii) depreciation and amortization expense, (iv) other non-recurring expenses of the Company and its Subsidiaries reducing such Consolidated Net Income which do not represent a cash item in such period or any future period, (v) non-cash stock compensation expenses of the Company and its Subsidiaries incurred in such period, (vi) up to $45,000,000 in the aggregate of cash charges associated with the settlement of the TCPA Action, (vii) up to $295,000,000 in the aggregate of cash charges associated with the settlement of the MDL Contract Action, and (viii) up to $5,000,000 in the aggregate of cash charges related to legal fees and expenses associated with (x) the MDL Contract Action, (y) the Third Amendment and (z) the corresponding amendments to the Bank Credit Agreement, the Term Loan Agreement and Other Note Agreements minus (b) the following to the extent included in calculating such Consolidated Net Income: (i) federal, state, local
- 3 -
|
Stericycle, Inc. |
Third Amendment |
and foreign income tax credits of the Company and its Subsidiaries for such period and (ii) all non-cash items increasing Consolidated Net Income for such period; provided, however, that Consolidated EBITDA shall be increased by the amount of Transaction Costs incurred during such period to the extent such amount was deducted in determining Consolidated Net Income for such period. For purposes of calculating Consolidated EBITDA for any period of four consecutive quarters, if during such period the Company or any Subsidiary shall have made any Acquisition or disposed of any Person or of all or substantially all of the operating assets of any Person, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such transaction occurred on the first day of such period.
“Increased Interest Rate” means the occurrence of a Primary Increased Interest Rate, Secondary Increased Interest Rate or MDL Leverage Increased Interest Rate, as applicable.
Section 2.Representations and Warranties of the Company.
Section 2.1.To induce the Noteholders to execute and deliver this Agreement, the Company represents and warrants (which representations shall survive the execution and delivery of this Agreement) to the Noteholders that:
(a)this Agreement has been duly authorized, executed and delivered by the Company and, upon execution and delivery thereof by the parties hereto, this Agreement constitutes the legal, valid and binding obligation, contract and agreement of the Company enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(b)the Note Purchase Agreement, as amended by this Agreement, constitutes the legal, valid and binding obligation, contract and agreement of the Company enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(c)the execution, delivery and performance by the Company of this Agreement (i) has been duly authorized by all requisite corporate actions on the part of the Company, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation applicable to the Company or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any material indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, or (B) result in a breach or constitute (alone or with due notice or lapse of time or
- 4 -
|
Stericycle, Inc. |
Third Amendment |
both) a default under any indenture, agreement or other instrument referred to in clause (iii)(A)(3) of this Section 2.1(c);
(d)as of the date hereof and after giving effect to this Agreement, no Default or Event of Default has occurred which is continuing; and
(e)the representations and warranties contained in Section 5 of the Note Purchase Agreement are true and correct in all material respects with the same force and effect as if made by the Company on and as of the date hereof, except to the extent that any such representation or warranty expressly relates to an earlier date.
Section 3.Conditions to Effectiveness of Amendments and Waivers.
Section 3.1.The amendments to the Note Purchase Agreement set forth herein shall not become effective until, and shall become effective when (the “Effective Date”), each of the following conditions shall have been satisfied:
(a)executed counterparts of this Agreement, duly executed by the Company and the holders of 51% in principal amount of the outstanding Notes, shall have been delivered to the Noteholders;
(b)copies of a favorable written opinion of counsel to the Company addressed to each of the Noteholders as to matters set forth in Section 2.1(a) through (c) hereof (provided that the opinion regarding Section 2.1(c)(iii)(3) will relate to the Other Note Agreements, Bank Credit Agreement and the Term Loan Agreement (as defined in the Note Purchase Agreement after giving effect to this Agreement)), in form and substance satisfactory to the Noteholders, shall have been delivered to the Noteholders;
(c)the representations and warranties of the Company set forth in Section 2 hereof shall be true and correct on and with respect to the date hereof, and the execution and delivery by the Company of this Agreement shall constitute certification by the Company of the same;
(d)the Company shall have paid a fee to each holder of Notes equal to five basis points (.05%) on the outstanding principal amount of Notes held by each such holder of Note as of the Effective Date;
(e)the Company shall have paid the fees and expenses of Chapman and Cutler LLP, special counsel to the Noteholders, incurred in connection with the negotiation, preparation, approval, execution and delivery of this Agreement for which an invoice has been provided;
(f)the Company shall have delivered copies of an amendment to each of the Bank Credit Agreement and the Term Loan Agreement (as defined in the Note Purchase Agreement after giving effect to this Agreement), each amending such agreements in
- 5 -
|
Stericycle, Inc. |
Third Amendment |
substance consistent with the amendments to the Note Purchase Agreement as contemplated by this Agreement; and
(g)the Company shall have delivered copies of an amendment to each of the Other Note Agreements (as defined in the Note Purchase Agreement after giving effect to this Agreement) between the Company and the purchasers named therein, each amending such agreements in substance consistent with the amendments to the Note Purchase Agreement as contemplated by this Agreement.
Upon receipt and satisfaction of all of the foregoing, such amendments shall become effective.
Section 4.Miscellaneous.
Section 4.1.Upon a request from any Noteholder, the Company will replace each Note currently held by such Noteholder with a revised Note in the form of Exhibit 1(a) or 1(b), as applicable, as amended by that certain Second Amendment referenced in the recitals of this Agreement. The form of Note under the Note Purchase Agreement includes a reference to the “Increased Interest Rate” and the Company acknowledges that such reference shall be deemed to reference the Increased Interest Rate as defined in the Note Purchase Agreement after giving effect to this Agreement.
Section 4.2.This Agreement shall be construed in connection with and as part of the Note Purchase Agreement, and except as modified and expressly amended by this Agreement, all terms, conditions and covenants contained in the Note Purchase Agreement are hereby ratified and confirmed and shall be and remain in full force and effect.
Section 4.3.Any and all notices, requests, certificates and other instruments, including the Notes, may refer to the “Note Purchase Agreement” or the “Note Purchase Agreement dated as of April 30, 2015” without making specific reference to this Agreement, but nevertheless all such references shall be deemed to include this Agreement unless the context shall otherwise require.
Section 4.4.The descriptive headings of the various Sections or parts of this Agreement are for convenience only and shall not affect the meaning or construction of any of the provisions hereof.
Section 4.5.This Agreement shall be governed by and construed in accordance with New York law excluding choice‑of‑law principles of the law of New York that would require the application of the laws of jurisdiction other than New York.
Section 4.5.This Agreement may be executed in any number of counterparts, each executed counterpart constituting an original, but all together only one agreement. This Agreement, together with the Note Purchase Agreement (as amended hereby) and the Notes, constitutes the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.
- 6 -
|
Stericycle, Inc. |
Second Amendment |
In Witness Whereof, the parties hereto have executed this Agreement as of the Effective Date.
|
Stericycle, Inc. |
||
|
|
|
|
|
By |
|
/s/ Daniel V. Ginnetti |
|
|
Name: |
Daniel V. Ginnetti |
|
|
Title: |
Chief Financial Officer, Executive Vice President |
|
Stericycle, Inc. |
Third Amendment |
|
New York Life Insurance Company |
||
|
|
|
|
|
By |
|
/s/ A. Post Howland |
|
|
Name: |
A. Post Howland |
|
|
Title: |
Vice President |
|
New York Life Insurance And Annuity Corporation |
||
|
|
||
|
by NYL Investors LLC Its Investment Manager |
||
|
|
||
|
By |
|
/s/ A. Post Howland |
|
|
Name: |
A. Post Howland |
|
|
Title: |
Vice President |
|
New York Life Insurance and Annuity Corporation Institutionally Owned Life Insurance Separate Account (BOLI 3-2) |
||
|
|
||
|
by NYL Investors LLC Its Investment Manager |
||
|
|
||
|
By |
|
/s/ A. Post Howland |
|
|
Name: |
A. Post Howland |
|
|
Title: |
Vice President |
|
Stericycle, Inc. |
Third Amendment |
Accepted and Agreed to:
|
The Northwestern Mutual Life Insurance Company |
||
|
|
||
|
by Northwestern Mutual Investment Management Company, LLC, Its Investment Adviser |
||
|
|
||
|
By |
|
/s/ David A. Barras |
|
|
Name: |
David A. Barras |
|
|
Title: |
Managing Director |
|
The Northwestern Mutual Life Insurance Company for its Group Annuity Separate Account |
||
|
|
||
|
By |
|
/s/ David A. Barras |
|
|
Name: |
David A. Barras |
|
|
Title: |
Authorized Representative |
|
Stericycle, Inc. |
Third Amendment |
|
State Farm Life Insurance Company |
||
|
|
||
|
By |
|
/s/ Julie Hoyer |
|
|
Name: |
Julie Hoyer |
|
|
Title: |
Investment Executive |
|
By |
|
/s/ Jeffrey Attwood |
|
|
Name: |
Jeffrey Attwood |
|
|
Title: |
Investment Professional |
|
State Farm Life and Accident Assurance Company |
||
|
|
||
|
By |
|
/s/ Julie Hoyer |
|
|
Name: |
Julie Hoyer |
|
|
Title: |
Investment Executive |
|
By |
|
/s/ Jeffrey Attwood |
|
|
Name: |
Jeffrey Attwood |
|
|
Title: |
Investment Professional |
|
Stericycle, Inc. |
Third Amendment |
Accepted and Agreed to:
|
Thrivent Financial For Lutherans |
||
|
|
||
|
By |
|
/s/ Martin Rosucker |
|
|
Name: |
Martin Rosucker |
|
|
Title: |
Managing Director |
|
Stericycle, Inc. |
Third Amendment |
|
AXA Equitable Life Insurance Company |
||
|
|
||
|
By |
|
/s/ Amy Judd |
|
|
Name: |
Amy Judd |
|
|
Title: |
Investment Officer |
|
Stericycle, Inc. |
Third Amendment |
Accepted and Agreed to:
|
Great-West Life & Annuity Insurance Company |
||
|
|
||
|
By |
|
/s/ Tad Anderson |
|
|
Name: |
Tad Anderson |
|
|
Title: |
Assistant Vice President, Investments |
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By |
|
/s/ Ward Argust |
|
|
Name: |
Ward Argust |
|
|
Title: |
Assistant Vice President, Investments |
|
Stericycle, Inc. |
Third Amendment |
|
The Guardian Life Insurance Company of America |
||
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|
||
|
By |
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/s/ Amy Carroll |
|
|
Name: |
Amy Carroll |
|
|
Title: |
Director |
|
Stericycle, Inc. |
Third Amendment |
|
Metropolitan Life Insurance Company |
||
|
|
||
|
General American Life Insurance Company |
||
|
by Metropolitan Life Insurance Company, Its Investment Manager |
||
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|
||
|
By |
|
/s/ John Wills |
|
|
Name: |
John Wills |
|
|
Title: |
Senior Vice President & Managing Director |
|
MetLife Insurance K.K. |
||
|
by MetLife Investment Advisors, LLC, Its Investment Manager |
||
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|
||
|
By |
|
/s/ John Wills |
|
|
Name: |
John Wills |
|
|
Title: |
Senior Vice President & Managing Director |
|
Brighthouse Life Insurance Company |
||
|
by MetLife Investment Advisors, LLC, Its Investment Manager |
||
|
|
||
|
Brighthouse Life Insurance Company of NY |
||
|
by MetLife Investment Advisors, LLC, Its Investment Manager |
||
|
|
||
|
By |
|
/s/ Judith A. Gulotta |
|
|
Name: |
Judith A. Gulotta |
|
|
Title: |
Managing Director |
|
Stericycle, Inc. |
Third Amendment |
|
Nationwide Life Insurance Company |
||
|
|
||
|
By |
|
/s/ Jason Comisar |
|
|
Name: |
Jason Comisar |
|
|
Title: |
Authorized Signatory |
|
Stericycle, Inc. |
Third Amendment |
Accepted and Agreed to:
|
RiverSource Life Insurance Company |
||
|
|
||
|
By |
|
/s/ Thomas W. Murphy |
|
|
Name: |
Thomas W. Murphy |
|
|
Title: |
Vice President - Investments |
|
RiverSource Life Insurance Co. of New York |
||
|
|
||
|
By |
|
/s/ Thomas W. Murphy |
|
|
Name: |
Thomas W. Murphy |
|
|
Title: |
Vice President - Investments |
|
Stericycle, Inc. |
Third Amendment |
Accepted and Agreed to:
|
State of Wisconsin Investment Board |
||
|
|
||
|
By |
|
/s/ Christopher P. Prestigiacomo |
|
|
Name: |
Christopher P. Prestigiacomo |
|
|
Title: |
Portfolio Manager |
|
Stericycle, Inc. |
Third Amendment |
|
Catholic Pension Life |
||
|
Guideone Mutual Life Insurance Company |
||
|
Guideone Property & Casualty Insurance Company |
||
|
|
||
|
By: Advantus Capital Management, Inc. |
||
|
|
|
|
|
By |
|
/s/ David Land |
|
|
Name: |
David Land |
|
|
Title: |
Vice President |
|
EXHIBIT 10.6 |
Execution Version |
Stericycle, Inc.
___________________________________
First Amendment
Dated as of July 28, 2017
to
Note Purchase Agreement
Dated as of October 1, 2015
___________________________________
Re:2.89% Senior Notes, Series A, due October 1, 2021
and
3.18% Senior Notes, Series B, due October 1, 2023
4244257.02.06.doc
4242756
First Amendment to Note Purchase Agreement
This First Amendment dated as of July 28, 2017 (the or this “Agreement”) to the Note Purchase Agreement referred to below is between Stericycle, Inc., a Delaware corporation (the “Company”), and each of the institutions which is a signatory to this Agreement (collectively, the “Noteholders”).
Recitals:
Whereas, the Company and each of the Noteholders have heretofore entered into the Note Purchase Agreement dated as of October 1, 2015 (the “Note Purchase Agreement”), pursuant to which the Company issued on or about October 1, 2015 (a) $150,000,000 aggregate principal amount of its 2.89% Senior Notes, Series A, due October 1, 2021 (as amended, the “Series A Notes”) and (b) $150,000,000 aggregate principal amount of its 3.18% Senior Notes, Series B, due October 1, 2023 (as amended, the “Series B Notes” and together with the Series A Notes, collectively, the “Notes”);
Whereas, the Company and the Noteholders now desire to amend the Note Purchase Agreement and the Notes in the respects, but only in the respects, hereinafter set forth;
Whereas, all capitalized terms used herein and not defined herein shall have the meaning specified in the Note Purchase Agreement;
Whereas, all requirements of law have been fully complied with and all other acts and things necessary to make this Agreement a valid, legal and binding instrument according to its terms for the purposes herein expressed have been done or performed.
Now, therefore, upon the full and complete satisfaction of the conditions precedent to effectiveness set forth in Section 3.1 hereof, and for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Company and each of the Noteholders do hereby agree as follows:
|
Section 1. |
Amendments. |
Section 1.1.Section 10.1(a) of the Note Purchase Agreement is hereby amended and restated in its entirety to read as follows:
(i) The Company will not permit the Consolidated Leverage Ratio as of the end of any fiscal quarter of the Company to exceed 3.75 to 1.00; provided that if the Consolidated Leverage Ratio, on a pro forma basis as of any such date and immediately after giving effect to the settlement payment of the MDL Contract Action, is greater than 3.50 to 1.00, the Company may, in its sole discretion, elect to increase the maximum Consolidated Leverage Ratio permitted by this Section 10.1(a)(i) to 4.00 to 1.00 as of the
|
Stericycle, Inc. |
First Amendment |
end of the fiscal quarter in which the settlement payment of the MDL Contract Action occurred and in any subsequent fiscal quarter ending on or prior to September 30, 2018 (the “MDL Period”); provided further in no event shall the elevated ratio permitted by the immediately preceding proviso extend after September 30, 2018. Such election shall be made by the delivery of a written notice by the Company to the holders of Notes making reference to this Section 10.1(a) and notifying the holders of Notes of the Company’s election to increase the maximum Consolidated Leverage Ratio as provided above on or prior to the date of the actual or required delivery of a certificate required under Section 7.2 for the fiscal quarter in which the settlement payment of the MDL Contract Action occurred; and
(ii) If at the end of any fiscal quarter of the Company during the MDL Period the Consolidated Leverage Ratio exceeded 3.75 to 1.00 (an “MDL Leverage Increase”), the per annum interest rate (including any Default Rate, if applicable) otherwise applicable to each series of the Notes as specified in the first paragraph thereof shall be increased by 50 basis points (.50%) (the “MDL Leverage Increased Interest Rate”) from the date of such MDL Leverage Increase to but not including the date that the Consolidated Leverage Ratio is 3.75 to 1.00 or less. The Company shall promptly, and in any event within 10 Business Days, following an MDL Leverage Increase notify the holders of the Notes in writing that an MDL Leverage Increase has commenced and the date of such commencement. Payment of the MDL Leverage Increased Interest Rate shall not constitute a waiver of any Default or Event of Default hereunder.”
Section 1.2.Additional Definitions. Schedule B to the Note Purchase Agreement is hereby amended to insert the following definitions, each in its respective alphabetical order:
“First Amendment” means the First Amendment dated as of July 28, 2017 to this Agreement between the Company and the holders party thereto.
“MDL Contract Action” means the claims made against the Company in In re: Stericycle, Inc., Steri-Safe Contract Litigation, Case No. 13 C 5795, MDL No. 2455 brought in the United States District Court for the Northern District of Illinois Eastern Division.
“MDL Leverage Increase” is defined in Section 10.1(a)(ii).
- 2 -
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Stericycle, Inc. |
First Amendment |
“MDL Leverage Increased Interest Rate” is defined in Section 10.1(a)(ii).
“MDL Period” is defined in Section 10.1(a)(i).
“Other Note Agreements” means each of the following note purchase agreements among the Company and the holders of notes party thereto: (i) the Note Purchase Agreement dated as of August 18, 2010, (ii) the Note Purchase Agreement dated as of October 22, 2012 and (iii) the Note Purchase Agreement dated as of April 30, 2015, each as amended, restated, joined, supplemented or otherwise modified from time to time.
“Term Loan Agreement” means the Term Loan Credit Agreement dated as of August 21, 2015 by and among the Company, certain Subsidiaries of the Company named therein, Bank of America, N.A., as administrative agent, and the other financial institutions party thereto, as amended, restated, joined, supplemented or otherwise modified from time to time.
Section 1.3.Amended Definitions. Schedule B to the Note Purchase Agreement is hereby amended by amending and restating each of the following definitions in its entirety to read as follows:
“Consolidated EBITDA” means, for any period, for the Company and its Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the provision for federal, state, local and foreign income taxes payable by the Company and its Subsidiaries for such period, (iii) depreciation and amortization expense, (iv) other non-recurring expenses of the Company and its Subsidiaries reducing such Consolidated Net Income which do not represent a cash item in such period or any future period, (v) non-cash stock compensation expenses of the Company and its Subsidiaries incurred in such period, (vi) up to $45,000,000 in the aggregate of cash charges associated with the settlement of the TCPA Action, (vii) up to $295,000,000 in the aggregate of cash charges associated with the settlement of the MDL Contract Action, and (viii) up to $5,000,000 in the aggregate of cash charges related to legal fees and expenses associated with (x) the MDL Contract Action, (y) the First Amendment and (z) the corresponding amendments to the Bank Credit Agreement, the Term Loan Agreement and Other Note Agreements minus (b) the following to the extent included in calculating such Consolidated Net Income: (i) federal, state, local
- 3 -
|
Stericycle, Inc. |
First Amendment |
and foreign income tax credits of the Company and its Subsidiaries for such period and (ii) all non-cash items increasing Consolidated Net Income for such period; provided, however, that Consolidated EBITDA shall be increased by the amount of Transaction Costs incurred during such period to the extent such amount was deducted in determining Consolidated Net Income for such period. For purposes of calculating Consolidated EBITDA for any period of four consecutive quarters, if during such period the Company or any Subsidiary shall have made any Acquisition or disposed of any Person or of all or substantially all of the operating assets of any Person, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such transaction occurred on the first day of such period.
“Increased Interest Rate” means the occurrence of a Primary Increased Interest Rate or MDL Leverage Increased Interest Rate, as applicable.
|
Section 2. |
Representations and Warranties of the Company. |
Section 2.1.To induce the Noteholders to execute and deliver this Agreement, the Company represents and warrants (which representations shall survive the execution and delivery of this Agreement) to the Noteholders that:
(a)this Agreement has been duly authorized, executed and delivered by the Company and, upon execution and delivery thereof by the parties hereto, this Agreement constitutes the legal, valid and binding obligation, contract and agreement of the Company enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(b)the Note Purchase Agreement, as amended by this Agreement, constitutes the legal, valid and binding obligation, contract and agreement of the Company enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(c)the execution, delivery and performance by the Company of this Agreement (i) has been duly authorized by all requisite corporate actions on the part of the Company, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation applicable to the Company or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any material indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, or (B) result in a breach or constitute (alone or with due notice or lapse of time or
- 4 -
|
Stericycle, Inc. |
First Amendment |
both) a default under any indenture, agreement or other instrument referred to in clause (iii)(A)(3) of this Section 2.1(c);
(d)as of the date hereof and after giving effect to this Agreement, no Default or Event of Default has occurred which is continuing; and
(e)the representations and warranties contained in Section 5 of the Note Purchase Agreement are true and correct in all material respects with the same force and effect as if made by the Company on and as of the date hereof, except to the extent that any such representation or warranty expressly relates to an earlier date.
|
Section 3. |
Conditions to Effectiveness of Amendments and Waivers. |
Section 3.1.The amendments to the Note Purchase Agreement set forth herein shall not become effective until, and shall become effective when (the “Effective Date”), each of the following conditions shall have been satisfied:
(a)executed counterparts of this Agreement, duly executed by the Company and the holders of 51% in principal amount of the outstanding Notes, shall have been delivered to the Noteholders;
(b)copies of a favorable written opinion of counsel to the Company addressed to each of the Noteholders as to matters set forth in Section 2.1(a) through (c) hereof (provided that the opinion regarding Section 2.1(c)(iii)(3) will relate to the Other Note Purchase Agreements, Bank Credit Agreement and the Term Loan Agreement (as defined in the Note Purchase Agreement after giving effect to this Agreement)), in form and substance satisfactory to the Noteholders, shall have been delivered to the Noteholders;
(c)the representations and warranties of the Company set forth in Section 2 hereof shall be true and correct on and with respect to the date hereof, and the execution and delivery by the Company of this Agreement shall constitute certification by the Company of the same;
(d)the Company shall have paid a fee to each holder of Notes equal to five basis points (.05%) on the outstanding principal amount of Notes held by each such holder of Note as of the Effective Date;
(e)the Company shall have paid the fees and expenses of Chapman and Cutler LLP, special counsel to the Noteholders, incurred in connection with the negotiation, preparation, approval, execution and delivery of this Agreement for which an invoice has been provided;
(f)the Company shall have delivered copies of an amendment to each of the Bank Credit Agreement and the Term Loan Agreement (as defined in the Note Purchase Agreement after giving effect to this Agreement), each amending such agreements in
- 5 -
|
Stericycle, Inc. |
First Amendment |
substance consistent with the amendments to the Note Purchase Agreement as contemplated by this Agreement; and
(g)the Company shall have delivered copies of an amendment to each of the Other Note Agreements (as defined in the Note Purchase Agreement after giving effect to this Agreement) between the Company and the purchasers named therein, each amending such agreements in substance consistent with the amendments to the Note Purchase Agreement as contemplated by this Agreement.
Upon receipt and satisfaction of all of the foregoing, such amendments shall become effective.
|
Section 4. |
Miscellaneous. |
Section 4.1.This Agreement shall be construed in connection with and as part of the Note Purchase Agreement, and except as modified and expressly amended by this Agreement, all terms, conditions and covenants contained in the Note Purchase Agreement are hereby ratified and confirmed and shall be and remain in full force and effect.
Section 4.2.Any and all notices, requests, certificates and other instruments, including the Notes, may refer to the “Note Purchase Agreement” or the “Note Purchase Agreement dated as of October 1, 2015” without making specific reference to this Agreement, but nevertheless all such references shall be deemed to include this Agreement unless the context shall otherwise require.
Section 4.3.The descriptive headings of the various Sections or parts of this Agreement are for convenience only and shall not affect the meaning or construction of any of the provisions hereof.
Section 4.4.This Agreement shall be governed by and construed in accordance with New York law excluding choice‑of‑law principles of the law of New York that would require the application of the laws of jurisdiction other than New York.
Section 4.5.This Agreement may be executed in any number of counterparts, each executed counterpart constituting an original, but all together only one agreement. This Agreement, together with the Note Purchase Agreement (as amended hereby) and the Notes, constitutes the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.
- 6 -
|
Stericycle, Inc. |
Second Amendment |
In Witness Whereof, the parties hereto have executed this Agreement as of the Effective Date.
|
Stericycle, Inc. |
||
|
|
|
|
|
By |
|
/s/ Daniel V. Ginnetti |
|
|
Name: |
Daniel V. Ginnetti |
|
|
Title: |
Chief Financial Officer, Executive Vice |
|
|
|
President |
|
Stericycle, Inc. |
First Amendment |
|
Metropolitan Life Insurance Company |
||
|
|
||
|
General American Life Insurance Company |
||
|
by |
Metropolitan Life Insurance Company, Its Investment Manager |
|
|
|
|
|
|
By |
|
/s/ John Wills |
|
|
Name: |
John Wills |
|
|
Title: |
Senior Vice President & Managing Director |
|
Brighthouse Life Insurance Company |
||
|
by |
MetLife Investment Advisors, LLC, Its Investment Manager |
|
|
|
||
|
Erie family Life Insurance Company |
||
|
by |
MetLife Investment Advisors, LLC, Its Investment Manager |
|
|
|
||
|
By |
|
/s/ Judith A. Gulotta |
|
|
Name: |
Judith A. Gulotta |
|
|
Title: |
Managing Director |
|
Stericycle, Inc. |
First Amendment |
Accepted and Agreed to:
|
The Northwestern Mutual Life Insurance Company |
||
|
|
||
|
by |
Northwestern Mutual Investment Management Company, LLC, Its Investment Adviser |
|
|
|
|
|
|
By |
|
/s/ David A. Barras |
|
|
Name: |
David A. Barras |
|
|
Title: |
Managing Director |
|
The Northwestern Mutual Life Insurance Company for its Group Annuity Separate Account |
||
|
|
||
|
By |
|
/s/ David A. Barras |
|
|
Name: |
David A. Barras |
|
|
Title: |
Its Authorized Representative |
|
Stericycle, Inc. |
First Amendment |
Accepted and Agreed to:
|
New York Life Insurance Company |
||
|
|
||
|
By |
|
/s/ A. Post Howland |
|
|
Name: |
A. Post Howland |
|
|
Title: |
Vice President |
|
New York Life Insurance And Annuity Corporation |
||
|
|
||
|
by |
NYL Investors LLC Its Investment Manager |
|
|
|
|
|
|
By |
|
/s/ A. Post Howland |
|
|
Name: |
A. Post Howland |
|
|
Title: |
Vice President |
|
New York Life Insurance and Annuity Corporation Institutionally Owned Life Insurance Separate Account (BOLI 3) |
||
|
|
||
|
by |
NYL Investors LLC Its Investment Manager |
|
|
|
|
|
|
By |
|
/s/ A. Post Howland |
|
|
Name: |
A. Post Howland |
|
|
Title: |
Vice President |
|
Stericycle, Inc. |
First Amendment |
Accepted and Agreed to:
|
The Bank of New York Mellon, a banking corporation organized under the laws of New York, not in its individual capacity but solely as trustee under that certain trust agreement dated as of July 1st, 2015 between New York Life Insurance Company (U.S.A.), as Beneficiary, John Hancock Life Insurance Company of New York, as Beneficiary, and the Bank of New York Mellon, as Trustee |
||
|
|
||
|
by |
New York Life Insurance Company, its Attorney-in-Fact |
|
|
|
|
|
|
By |
|
/s/ A. Post Howland |
|
|
Name: |
A. Post Howland |
|
|
Title: |
Vice President |
|
Stericycle, Inc. |
First Amendment |
Accepted and Agreed to:
|
State Farm Life Insurance Company |
||
|
|
||
|
By |
|
/s/ Julie Hoyer |
|
|
Name: |
Julie Hoyer |
|
|
Title: |
Investment Executive |
|
|
|
|
|
By |
|
/s/ Jeffrey Attwood |
|
|
Name: |
Jeffrey Attwood |
|
|
Title: |
Investment Professional |
|
State Farm Life and Accident Assurance Company |
||
|
|
||
|
By |
|
/s/ Julie Hoyer |
|
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Name: |
Julie Hoyer |
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Title: |
Investment Executive |
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By |
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/s/ Jeffrey Attwood |
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Name: |
Jeffrey Attwood |
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Title: |
Investment Professional |
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Stericycle, Inc. |
First Amendment |
Accepted and Agreed to:
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Nationwide Life Insurance Company |
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By |
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/s/ Jason Comisar |
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Name: |
Jason Comisar |
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Title: |
Authorized Signatory |
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Stericycle, Inc. |
First Amendment |
Accepted and Agreed to:
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Thrivent Financial For Lutherans |
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By |
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/s/ Martin Rosucker |
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Name: |
Martin Rosucker |
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Title: |
Managing Director |
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Stericycle, Inc. |
First Amendment |
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Principal Life Insurance Company |
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By: |
Principal Global Investors, LLC, a Delaware limited liability company, its authorized signatory |
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By |
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/s/ Eldwin A. Nichols |
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Name: |
Eldwin A. Nichols |
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Title: |
Counsel |
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By |
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/s/ Colin Pennycooke |
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Name: |
Colin Pennycooke |
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Title: |
Counsel |
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Stericycle, Inc. |
First Amendment |
Accepted and Agreed to:
|
State of Wisconsin Investment Board |
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By |
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/s/ Christopher P. Prestigiacomo |
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Name: |
Christopher P. Prestigiacomo |
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Title: |
Portfolio Manager |
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Stericycle, Inc. |
First Amendment |
Accepted and Agreed to:
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By: |
Fort Washington Investment Advisors, as investment adviser for Auto-Owners Insurance Company |
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By |
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/s/ Douglas E. Kelsey |
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Name: |
Douglas E. Kelsey |
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Title: |
VP – Private Placements |
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By |
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/s/ Brendan White |
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Name: |
Brendan White |
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Title: |
Co-Chief Investment Officer |
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By: |
Fort Washington Investment Advisors, as investment adviser for Auto-Owners Life Insurance Company |
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By |
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/s/ Douglas E. Kelsey |
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Name: |
Douglas E. Kelsey |
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Title: |
VP – Private Placements |
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By |
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/s/ Brendan White |
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Name: |
Brendan White |
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Title: |
Co-Chief Investment Officer |
|
Stericycle, Inc. |
First Amendment |
Accepted and Agreed to:
|
American United Life Insurance Company |
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By |
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/s/ Michael I. Bullock |
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Name: |
Michael I. Bullock |
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Title: |
VP – Private Placements |
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The State Life Insurance Company |
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By: |
American United Life Insurance Company |
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Its: |
Agent |
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By |
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/s/ Michael I. Bullock |
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Name: |
Michael I. Bullock |
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Title: |
VP – Private Placements |
|
Stericycle, Inc. |
First Amendment |
Accepted and Agreed to:
|
Ameritas Life Insurance Corp. |
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Ameritas Life Insurance Corp. of New York |
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By |
Ameritas Investment Partners, Inc., as Agent |
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By |
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/s/ Tina Udell |
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Name: |
Tina Udell |
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Title: |
Vice President & Managing Director |
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Stericycle, Inc. |
First Amendment |
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PHL Variable Insurance Company |
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By |
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/s/ Christopher M. Wilkos |
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Name: |
Christopher M. Wilkos |
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Title: |
Vice President |
|
Stericycle, Inc. |
First Amendment |
|
Woodmen of the World Life Insurance Society |
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By |
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/s/ Dean Holdsworth |
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Name: |
Dean Holdsworth |
|
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Title: |
Director Mortgage Loan/RE |
|
Stericycle, Inc. |
First Amendment |
Accepted and Agreed to:
|
Southern Farm Bureau Life Insurance Company |
||
|
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By |
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/s/ David Divine |
|
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Name: |
David Divine |
|
|
Title: |
Senior Portfolio Manager |
|
Stericycle, Inc. |
First Amendment |
Accepted and Agreed to:
|
Physicians Mutual Insurance Company |
||
|
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by |
Prudential Private Placement Investors, L.P. (as Investment Advisor) |
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by |
Prudential Private Placement Investors, Inc. (as its General Partner) |
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By |
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/s/ Physicians Mutual Insurance Company |
|
|
Name: |
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Title: |
Vice President |