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): October 30, 2009
CONMED CORPORATION
(Exact name of registrant as specified in its charter)
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New York |
0-16093 |
16-0977505 |
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(State or other jurisdiction of |
(Commission |
(I.R.S. Employer |
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incorporation or organization) |
File Number) |
Identification No.) |
525 French Road
Utica, New York 13502
(Address of principal executive offices, including zip code)
(315) 797-8375
(Registrant's telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions (See General Instruction A.2 below):
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange 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))
Item 1.01 Entry into a Material Definitive Agreement; Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
On October 30, 2009, CONMED Corporation (the "Registrant") and its subsidiary, CONMED Receivables Corporation, entered into the fifth amendment (the "Amendment to the Amended and Restated Receivables Purchase Agreement”) dated as of October 23, 2003 among CONMED Receivables Corporation, the Registrant and Bank of America, N.A., which
is Exhibit 10.22 to the Company's Annual Report on Form 10-K for the year ended December 31, 2008. The Amendment, among other matters, (1) decreased the purchaser commitment from $50.0 million to $40.0 million and (2) extended the commitment termination date for the receivables securitization from October 31, 2009 until October 29, 2010.
Bank of America, N.A., as the purchaser under the Receivables Purchase Agreement, and its affiliates, have in the past provided, and may in the future provide, investment banking, underwriting, lending, commercial banking and other advisory services to the Registrant and its subsidiaries. Bank of America, N.A. has received, and
may in the future receive, customary compensation from the Registrant and its subsidiaries for such services.
The foregoing description of the Receivables Purchase Agreement and related matters is qualified in its entirety by reference to the Receivables Purchase Agreement, which will be filed as Exhibit 10.1 hereto and incorporated herein by reference.
Section 9 Financial Statements and Exhibits
Item 9.01 Financial Statements and Exhibits.
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(c) |
Exhibits |
The following exhibit is included herewith:
Exhibit No. Description of Exhibit
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10.1 |
Omnibus Amendment No. 5 to the Amended and Restated Receivables Purchase Agreement dated October 30, 2009. |
Signature
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 thereunto duly authorized.
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CONMED CORPORATION | ||
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(Registrant) | ||
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By: |
Robert D. Shallish, Jr. | |
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Vice President – Finance and | ||
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Chief Financial Officer | ||
Date: October 30, 2009
Exhibit 10.1
OMNIBUS AMENDMENT NO. 5
THIS OMNIBUS AMENDMENT NO. 5 (this “Amendment”) dated as of October 30, 2009, is entered into among CONMED RECEIVABLES CORPORATION (“Seller”), CONMED CORPORATION (“Parent”),
as initial Servicer, BANK OF AMERICA, N.A. (together with any other financial institution hereafter party hereto, each a “Purchaser” and collectively, the “Purchasers”) and BANK OF AMERICA, N.A., as administrator for Purchasers (in such capacity, the “Administrator”). Capitalized
terms used herein without definition shall have the meanings ascribed thereto in Appendix A of the Receivables Purchase Agreement, referred to below.
PRELIMINARY STATEMENTS
A. Reference is made to that certain Amended and Restated Receivables Purchase Agreement dated as of October 23, 2003 among Seller, Parent, Purchasers and Administrator (as amended, restated, supplemented or otherwise modified
from time to time, the “Receivables Purchase Agreement”) and that certain Fee Letter, dated as of October 23, 2003 by the Administrator and accepted and agreed to by the Seller and the Parent (as amended, restated, supplemented or otherwise modified from time to time, the “Fee Letter”).
B. The parties hereto have agreed to amend certain provisions of the Receivables Purchase Agreement and the Fee Letter upon the terms and conditions set forth herein.
SECTION 1. Amendments to Receivables Purchase Agreement. Upon the satisfaction of the conditions precedent set forth in Section 3 hereof, the parties hereto hereby agree to amend the Receivables Purchase Agreement to:
(a) delete the reference to $50,000,000 that appears on the signature page for Bank of America, N.A. in its capacity as Purchaser opposite the term “Commitment” and to substitute the following dollar amount therefor: “$40,000,000”.
(b) delete the definition of “Applicable Stress Factor” set forth in Appendix A and substitute the following therefor:
“Applicable Stress Factor” means 1.50.
(c) delete the definition of “Commitment Termination Date” set forth in Appendix A and substitute the following therefor:
“Commitment Termination Date” means October 29, 2010, as such date may be extended from time to time with the consent of the parties to the Agreement.
(d) delete the reference to “25%” appearing in (i) of the definition of “Required Reserve Percentage” set forth in Appendix A and to substitute the following therefor: “35%”.
(e) replace Exhibit A to Appendix A with the Exhibit A attached hereto.
SECTION 2. Amendment to Fee Letter: Upon the satisfaction of the conditions precedent set forth in Section 3 hereof, the parties hereto hereby agree to amend section (b) of the Fee Letter in its entirety as follows:
“Commitment Fee Rate. The Commitment Fee Rate shall equal 0.5%.”
SECTION 3. Conditions Precedent. The effectiveness of this Amendment is subject to the conditions precedent that (a) the Administrator shall have received a duly executed counterpart to this Amendment from each of the Seller, the Parent and the Purchaser
and (b) the Administrator shall have received a Servicer Report from the Servicer, dated as of the date hereof, in form and substance reasonably satisfactory to the Administrator.
SECTION 4. Representations and Warranties. Each of the parties hereto hereby represents and warrants to each other, as to itself that:
(a) this Amendment constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law; and
(b) on the date hereof, before and after giving effect to this Amendment, no Liquidation Event has occurred and is continuing.
SECTION 5. Reference to and Effect on the Transaction Documents.
(a) Upon the effectiveness of this Amendment, (i) each reference in the Receivables Purchase Agreement to “this Receivables Purchase Agreement”, “this Agreement”, “hereunder”, “hereof”, “herein” or words of like
import shall mean and be a reference to the Receivables Purchase Agreement as amended or otherwise modified hereby, (ii) each reference in the Fee Letter to “this Fee Letter”, “this letter”, “hereunder”, “hereof”, “herein” or words of like import shall mean and be a reference to the Fee Letter as amended or otherwise modified hereby, and (iii) each reference to the Receivables Purchase Agreement or the Fee Letter in any other Transaction Document or
any other document, instrument or agreement executed and/or delivered in connection therewith, shall mean and be a reference to the Receivables Purchase Agreement or Fee Letter, respectively, as amended or otherwise modified hereby.
(b) Except as specifically amended, terminated or otherwise modified above, the terms and conditions of the Receivables Purchase Agreement, of the Fee Letter, of all other Transaction Documents and any other documents, instruments and agreements executed and/or delivered
in connection therewith, shall remain in full force and effect and are hereby ratified and confirmed.
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(c) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Seller, Parent, Purchasers and Administrator under the Receivables Purchase Agreement, the Fee Letter or any other Transaction Document or any
other document, instrument or agreement executed in connection therewith, nor constitute a waiver of any provision contained therein, in each case except as specifically set forth herein.
SECTION 6. Execution in Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which
taken together shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment.
SECTION 5. GOVERNING LAW.
THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.
[Remainder of Page Deliberately Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective officers as of the date first above written.
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CONMED RECEIVABLES CORPORATION, as Seller | ||
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By: |
/s/ Robert D. Shallish, Jr. | |
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Name: Robert D. Shallish, Jr. | ||
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Title: Vice President | ||
| CONMED CORPORATION, as initial Servicer | ||
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By: |
/s/ Robert D. Shallish, Jr. | |
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Name: Robert D. Shallish, Jr. | ||
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Title: Vice President | ||
Signature Page to Omnibus Amendment No. 5
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BANK OF AMERICA, N.A., as Purchaser | ||
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By: |
/s/ Michael W. Brunner | |
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Name: Michael W. Brunner | ||
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Title: Senior Vice President | ||
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BANK OF AMERICA, N.A., as Administrator | ||
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By: |
/s/ Michael W. Brunner | |
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Name: Michael W. Brunner | ||
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Title: Senior Vice President | ||
Signature Page to Omnibus Amendment No. 5
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Exhibit A
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Obligor |
Applicable Percentage |
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Owens & Minor |
5% |
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Cardinal Health |
5% |