EXECUTION COPY
SUBSIDIARY GUARANTY AGREEMENT
This SUBSIDIARY GUARANTY AGREEMENT, dated as of December 22, 2005 as
amended, restated, amended and restated, supplemented or otherwise modified from
time to time, this "Agreement"), is made by each of the Persons (such
capitalized term and all other capitalized terms not otherwise defined herein to
have the meanings provided for in Article I) listed on the signature pages
hereof (such Persons, together with the Additional Guarantors (as defined in
Section 5.6) are collectively referred to as the "Guarantors" and individually
as a "Guarantor"), in favor of BANK OF AMERICA, N.A., as administrative and
collateral agent (in such capacity, the "Administrative Agent") for each of the
Secured Parties.
W I T N E S S E T H:
WHEREAS, Integra LifeSciences Holdings Corporation, a Delaware
corporation (the "Borrower") is party to a Credit Agreement, dated as of the
date hereof (as amended, restated, amended and restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the various financial institutions as are, or may from time to time
become, parties thereto, Bank of America, N.A., as Administrative Agent, L/C
Issuer and Swing Line Lender, Citibank FSB and SunTrust Bank, as Co-Syndication
Agents, and Royal Bank of Canada and Wachovia Bank, National Association, as
Co-Documentation Agents and the other Loan Documents referred to therein; and
WHEREAS, each of the Guarantors is a Subsidiary of the Borrower and
will receive substantial direct and indirect benefits from the Credit Agreement
and the Credit Extensions and other financial accommodations to be made or
issued thereunder;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce the Lenders
to make Credit Extensions (including the initial Credit Extension) to the
Borrower pursuant to the Credit Agreement, each Guarantor agrees, for the
benefit of each Secured Party, as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. The following terms (whether or not underscored) when
used in this Agreement, including its preamble and recitals, shall have the
following meanings (such definitions to be equally applicable to the singular
and plural forms thereof):
"Additional Guarantors" is defined in Section 5.6(b).
"Administrative Agent" is defined in the preamble.
"Agreement" is defined in the preamble.
"Borrower" is defined in the first recital.
"Credit Agreement" is defined in the first recital.
"Guaranteed Obligations" is defined in Section 2.1.
"Guarantor" and "Guarantors" are defined in the preamble.
"Indemnitee" is defined in Section 5.4(a).
"Loan Documents" is defined in the Credit Agreement.
"Obligations" is defined in the Credit Agreement.
"Other Taxes" is defined in the Credit Agreement.
"Post Petition Interest" is defined in Section 2.4(b)(ii).
"Subordinated Obligations" is defined in Section 2.4(b).
"Taxes" is defined in the Credit Agreement.
"Termination Date" means the date on which the latest of the following
events occurs:
(a) the payment in full in cash of the Guaranteed Obligations
and all other amounts payable under this Agreement (other than contingent
indemnification obligations);
(b) the termination or expiration of the Availability Period;
and
(c) the termination or expiration of all Letters of Credit and
all Secured Swap Contracts.
1.2 Credit Agreement Definitions. Unless otherwise defined herein or
the context otherwise requires, terms used in this Agreement, including its
preamble and recitals, have the meanings provided in the Credit Agreement.
1.3 Other Interpretive Provisions. The rules of construction in
Sections 1.02 to 1.06 of the Credit Agreement shall be equally applicable to
this Agreement.
ARTICLE II
GUARANTY
2.1 Guaranty; Limitation of Liability. (a) Each Guarantor hereby
absolutely, unconditionally and irrevocably guarantees the punctual payment when
due, whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all Obligations of each other Loan Party
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now or hereafter existing under or in respect of the Loan Documents (including,
without limitation, any extensions, modifications, substitutions, amendments or
renewals of any or all of the foregoing Obligations), whether direct or
indirect, absolute or contingent, and whether for principal, interest, premiums,
fees, indemnities, contract causes of action, costs, expenses or otherwise (such
Obligations being the "Guaranteed Obligations"), and agrees to pay any and all
expenses (including, without limitation, all reasonable fees, charges and
disbursements of counsel) incurred by the Administrative Agent or any other
Secured Party in enforcing any rights under this Agreement or any other Loan
Document. Without limiting the generality of the foregoing, each Guarantor's
liability shall extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by any other Loan Party to any Secured Party under
or in respect of the Loan Documents but for the fact that they are unenforceable
or not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such other Loan Party.
(b) Each Guarantor, and by its acceptance of this Agreement,
the Administrative Agent and each other Secured Party, hereby confirms that it
is the intention of all such Persons that this Agreement and the Obligations of
each Guarantor hereunder not constitute a fraudulent transfer or conveyance for
purposes of Debtor Relief Laws, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar Law to the extent applicable to
this Agreement and the Obligations of each Guarantor hereunder. To effectuate
the foregoing intention, the Administrative Agent, the other Secured Parties and
the Guarantors hereby irrevocably agree that the Obligations of each Guarantor
under this Agreement at any time shall be limited to the maximum amount as will
result in the Obligations of such Guarantor under this Agreement not
constituting a fraudulent transfer or conveyance.
(c) Each Guarantor hereby unconditionally and irrevocably
agrees that in the event any payment shall be required to be made to any Secured
Party under this Agreement or any other guaranty, such Guarantor will
contribute, to the maximum extent permitted by Law, such amounts to each other
Guarantor and each other guarantor so as to maximize the aggregate amount paid
to the Secured Parties under or in respect of the Loan Documents.
2.2 Guaranty Absolute. Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan
Documents, regardless of any Law now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of any Secured Party with respect
thereto. The Obligations of each Guarantor under or in respect of this Agreement
are independent of the Guaranteed Obligations or any other Obligations of any
other Loan Party under or in respect of the Loan Documents, and a separate
action or actions may be brought and prosecuted against each Guarantor to
enforce this Agreement, irrespective of whether any action is brought against
the Borrower or any other Loan Party or whether the Borrower or any other Loan
Party is joined in any such action or actions. This Agreement is an absolute and
unconditional guaranty of payment when due, and not of collection, by each
Guarantor jointly and severally with any other Guarantor of the Guaranteed
Obligations. The liability of each Guarantor under this Agreement shall be
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irrevocable, absolute and unconditional irrespective of, and each Guarantor
hereby irrevocably waives any defenses it may now have or hereafter acquire in
any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document
or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party under or in respect of the Loan Documents,
or any other amendment or waiver of or any consent to departure from any Loan
Document, including, without limitation, any increase in the Guaranteed
Obligations resulting from the extension of additional credit to any Loan Party
or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any
Collateral or any other collateral, or any taking, release or amendment or
waiver of, or consent to departure from, any other guaranty, for all or any of
the Guaranteed Obligations;
(d) any manner of application of Collateral or any other
collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or
any manner of sale or other disposition of any Collateral or any other
collateral for all or any of the Guaranteed Obligations or any other Obligations
of any Loan Party under the Loan Documents or any other assets of any Loan Party
or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries or any
insolvency, bankruptcy, reorganization or other similar proceeding affecting the
Borrower or any other Loan Party or its assets or any resulting release or
discharge of any Guaranteed Obligation;
(f) the existence of any claim, setoff or other right which any
Guarantor may have at any time against any Loan Party, the Administrative Agent,
any Lender or any other Person, whether in connection herewith or any unrelated
transaction;
(g) any invalidity or unenforceability relating to or against
the Borrower or any other Loan Party for any reason of the whole or any
provision of any Loan Document, or any provision of applicable Law purporting to
prohibit the payment or performance by the Borrower of the Guaranteed
Obligations;
(h) any failure of any Secured Party to disclose to any Loan
Party any information relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any other Loan
Party now or hereafter known to such Secured Party (each Guarantor waiving any
duty on the part of the Secured Parties to disclose such information);
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(i) the failure of any other Person to execute or deliver this
Agreement or any other guaranty or agreement or the release or reduction of
liability of any Guarantor or other guarantor or surety with respect to the
Guaranteed Obligations; or
(j) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any representation by
any Secured Party that might otherwise constitute a defense available to, or a
discharge of, any Loan Party or any other guarantor or surety.
This Agreement shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by any Secured Party or any other Person
upon the insolvency, bankruptcy or reorganization of the Borrower or any other
Loan Party or otherwise, all as though such payment had not been made.
2.3 Waivers and Acknowledgments.
(a) Each Guarantor hereby unconditionally and irrevocably
waives promptness, diligence, notice of acceptance, presentment, demand for
performance, notice of nonperformance, default, acceleration, protest or
dishonor and any other notice with respect to any of the Guaranteed Obligations
and this Agreement and any requirement that any Secured Party protect, secure,
perfect or insure any Lien or any property subject thereto or exhaust any right
or take any action against any Loan Party or any other Person or any Collateral.
(b) Each Guarantor hereby unconditionally and irrevocably
waives any right to revoke this Agreement and acknowledges that this Agreement
is continuing in nature and applies to all Guaranteed Obligations, whether
existing now or in the future.
(c) Each Guarantor hereby unconditionally and irrevocably
waives (i) any defense arising by reason of any claim or defense based upon an
election of remedies by any Secured Party that in any manner impairs, reduces,
releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of such Guarantor or other
rights of such Guarantor to proceed against any of the other Loan Parties, any
other guarantor or any other Person or any Collateral and (ii) any defense based
on any right of setoff or counterclaim against or in respect of the Obligations
of such Guarantor hereunder.
(d) Each Guarantor acknowledges that the Administrative Agent
may, without notice to or demand upon such Guarantor and without affecting the
liability of such Guarantor under this Agreement, foreclose under any mortgage
by nonjudicial sale, and each Guarantor hereby waives any defense to the
recovery by the Administrative Agent and the other Secured Parties against such
Guarantor of any deficiency after such nonjudicial sale and any defense or
benefits that may be afforded by applicable Law.
(e) Each Guarantor hereby unconditionally and irrevocably
waives any duty on the part of any Secured Party to disclose to such Guarantor
any matter, fact or thing relating to the business, condition (financial or
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otherwise), operations, performance, properties or prospects of any other Loan
Party or any of its Subsidiaries now or hereafter known by such Secured Party.
(f) Each Guarantor acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in Section 2.2
and this Section 2.3 are knowingly made in contemplation of such benefits.
2.4 Subordination. (a) Each Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against the Borrower, any other Guarantor or any other insider guarantor
that arise from the existence, payment, performance or enforcement of such
Guarantor's Obligations under or in respect of this Agreement or any other Loan
Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution (pursuant to Section 2.1(c) or
otherwise) or indemnification and any right to participate in any claim or
remedy of any Secured Party against the Borrower, any other Guarantor or any
other insider guarantor or any Collateral, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from the Borrower, any other
Guarantor or any other insider guarantor, directly or indirectly, in cash or
other property or by setoff or in any other manner, payment or security on
account of such claim, remedy or right, unless and until the Termination Date
has occurred.
(b) Each Guarantor hereby agrees that any and all debts,
liabilities and other obligations owed to such Guarantor by each other Loan
Party, including pursuant to Section 2.1(c) (collectively, the "Subordinated
Obligations"), are hereby subordinated to the prior payment in full in cash of
the Obligations of such other Loan Party under the Loan Documents to the extent
and in the manner hereinafter set forth in this Section 2.4(b):
(i) Except during the continuance of an Event of
Default (including the commencement and continuation of any proceeding
under any Debtor Relief Law relating to any other Loan Party), each
Guarantor may receive regularly scheduled payments from any other Loan
Party on account of the Subordinated Obligations. After the occurrence
and during the continuance of any Event of Default (including the
commencement and continuation of any proceeding under any Debtor
Relief Law relating to any other Loan Party), however, unless the
Administrative Agent otherwise agrees, no Guarantor shall demand,
accept or take any action to collect any payment on account of the
Subordinated Obligations.
(ii) In any proceeding under any Debtor Relief Law
relating to any other Loan Party, each Guarantor agrees that the
Secured Parties shall be entitled to receive payment in full in cash
of all Obligations (including all interest and expenses accruing after
the commencement of a proceeding under any Debtor Relief Law, whether
or not constituting an allowed claim in such proceeding ("Post
Petition Interest")) of each other Loan Party before such Guarantor
receives payment of any Subordinated Obligations of such other Loan
Party.
(iii) After the occurrence and during the continuance
of any Event of Default (including the commencement and continuation
of any proceeding under any Debtor Relief Law relating to any other
Loan Party), each Guarantor shall, if the Administrative Agent so
requests, collect, enforce and receive payments on account of any
Subordinated Obligations due to such Guarantor from any other Loan
Party as trustee for the Secured Parties and deliver such payments to
the Administrative Agent for application to the Guaranteed Obligations
(including all Post Petition Interest), together with any necessary
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endorsements or other instruments of transfer, but without reducing or
affecting in any manner the liability of such Guarantor under the
other provisions of this Agreement.
(iv) After the occurrence and during the continuance of
any Event of Default (including the commencement and continuation of
any proceeding under any Debtor Relief Law relating to any other Loan
Party), the Administrative Agent is authorized and empowered (but
without any obligation to so do), in its discretion, (A) in the name
of any Guarantor, to collect and enforce, and to submit claims in
respect of, Subordinated Obligations due to such Guarantor and to
apply any amounts received thereon to the Guaranteed Obligations
(including any and all Post Petition Interest), and (B) to require any
Guarantor (1) to collect and enforce, and to submit claims in respect
of, Subordinated Obligations due to such Guarantor and (2) to pay any
amounts received on such obligations to the Administrative Agent for
application to the Guaranteed Obligations (including any and all Post
Petition Interest).
(v) In the event of any conflict between the provisions
of this Section 2.4(b) and the provisions of Annex A of any Pledged
Note (as defined in the Pledge Agreement), the provisions of such
Annex A shall govern.
(c) If any amount shall be paid to any Guarantor in violation
of this Section 2.4 at any time prior to the Termination Date, such amount shall
be received and held in trust for the benefit of the Secured Parties, shall be
segregated from other property and funds of such Guarantor and shall forthwith
be paid or delivered to the Administrative Agent in the same form as so received
(with any necessary endorsement or assignment) to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Agreement,
whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as Collateral for any Guaranteed Obligations or other
amounts payable under this Agreement thereafter arising.
(d) If the Termination Date shall have occurred, the
Administrative Agent will, at any Guarantor's request and expense, execute and
deliver to such Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to
such Guarantor of an interest in the Guaranteed Obligations resulting from such
payment made by such Guarantor pursuant to this Agreement.
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2.5 Payments Free and Clear of Taxes, Etc. (a) Any and all payments
made by any Guarantor under or in respect of this Agreement or any other Loan
Document shall be made, in accordance with Section 3.01 of the Credit Agreement,
free and clear of and without reduction or withholding for any Indemnified Taxes
or Other Taxes; provided that if any Guarantor shall be required by any Laws to
deduct any Taxes (including Other Taxes) from such payments, then (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.5), each of the Administrative Agent, Lender or the L/C Issuer,
as the case may be, receives an amount equal to the sum it would have received
had no such deductions been made, (ii) such Guarantor shall make such
deductions, and (iii) such Guarantor shall timely pay the full amount deducted
to the relevant Governmental Authority in accordance with Law.
(b) Without limiting the provisions of subsection (a) above,
each Guarantor shall timely pay any Other Taxes that arise from any payment made
by or on behalf of such Guarantor under or in respect of this Agreement or any
other Loan Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, this Agreement and the other Loan
Documents to the relevant Governmental Authority in accordance with Law.
(c) Each Guarantor shall indemnify the Administrative Agent,
each Lender and the L/C Issuer, within (ten) 10 days after demand therefor, for
the full amount of Taxes or Other Taxes (including any Indemnified Taxes or
Other Taxes imposed or asserted or attributable to amounts payable under this
Section 2.5) paid by the Administrative Agent, such Lender or L/C Issuer, as the
case may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate certifying the amount of such payment or
liability delivered to a Guarantor by a Lender or the L/C Issuer (with a copy to
the Administrative Agent), or by the Administrative Agent on its own behalf or
on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest
error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by any Guarantor to a Governmental Authority, such
Guarantor shall deliver to the Administrative Agent the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such payment,
a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Guarantor hereby makes each representation and warranty made in
the Loan Documents by the Borrower with respect to such Guarantor and each
Guarantor hereby further represents and warrants as follows:
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3.1 No Conditions Precedent. There are no conditions precedent to the
effectiveness of this Agreement that have not been satisfied or waived.
3.2 Independent Credit Analysis. Such Guarantor has, independently and
without reliance upon any Secured Party and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and each other Loan Document to which it
is or is to be a party, and such Guarantor has established adequate means of
obtaining from each other Loan Party on a continuing basis information
pertaining to, and is now and on a continuing basis will be completely familiar
with, the business, condition (financial or otherwise), operations, performance,
properties and prospects of such other Loan Party.
ARTICLE IV
COVENANTS
4.1 Performance of Loan Documents. Each Guarantor covenants and agrees
that until the Termination Date, such Guarantor will perform and observe, and
cause each of its Subsidiaries to perform and observe, all of the terms,
covenants and agreements set forth in the Loan Documents on its or their part to
be performed or observed or that the Borrower has agreed to cause such Guarantor
or such Subsidiaries to perform or observe.
ARTICLE V
MISCELLANEOUS PROVISIONS
5.1 Loan Document. This Agreement is a Loan Document executed pursuant
to the Credit Agreement and shall (unless otherwise expressly indicated herein)
be construed, administered and applied in accordance with the terms and
provisions thereof.
5.2 No Waiver; Remedies. No failure on the part of any Secured Party
to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by the Law.
5.3 Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Secured Party and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
applicable Law, to setoff and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations (in
whatever currency) at any time owing by, such Secured Party or any such
Affiliate to or for the credit or the account of any Guarantor against any and
all of the Obligations of such Guarantor now or hereafter existing under this
Agreement or any other Loan Documents to such Secured Party, irrespective of
whether or not such Secured Party shall have made any demand under this
Agreement or any other Loan Document and although such Obligations of such
Guarantor may be contingent or unmatured or are owed to a branch or office of
such Secured Party different from the branch or office holding such deposit or
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obligated on such indebtedness. The rights of each Secured Party and their
respective Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Secured Party or their
respective Affiliates may have. Each Secured Party agrees to notify such
Guarantor and the Administrative Agent promptly after any such setoff and
application; provided, that the failure to give such notice shall not affect the
validity of such setoff and application.
5.4 Indemnification. (a) Without limitation on any other Obligations
of any Guarantor or remedies of the Secured Parties under this Agreement, each
Guarantor shall indemnify the Administrative Agent (and any sub-agent thereof),
each other Secured Party, and each Related Party of any of the foregoing Persons
(each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses (including the reasonable fees, charges and disbursements of
any counsel for any Indemnitee; provided, that, as long as no Default exists,
the Guarantors shall engage and pay for defense counsel that is reasonably
acceptable to the Administrative Agent in connection with claims brought by
third parties and the other Secured Parties may engage separate counsel under
such circumstances at their own expense (it being understood that upon the
occurrence of an Event of Default, all counsel shall be at the cost and expense
of Guarantors), incurred by any Indemnitee or asserted against any Indemnitee by
any third party or by the Borrower or any other Loan Party arising out of, in
connection with, or as a result of any failure of any Guaranteed Obligations to
be the legal, valid and binding obligations of any Loan Party enforceable
against such Loan Party in accordance with their terms; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (x) are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee or
(y) result from a claim brought by the Loan Party against an Indemnitee for
breach in bad faith of such Indemnitee's obligations hereunder or under any
other Loan Document, if such other Loan Party has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction.
(b) Each Guarantor hereby also agrees that none of the
Indemnitees shall have any liability (whether direct or indirect, in contract,
tort or otherwise) to any of the Guarantors or any of their respective
Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact, and each Guarantor hereby agrees not to assert any claim
against any Indemnitee on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of or otherwise relating to the Loans, the actual or proposed use of
the proceeds of the Credit Extensions, the Loan Documents or any of the
transactions contemplated by the Loan Documents.
(c) All amounts due under this Section 5.4 shall be payable not
later than ten Business Days after demand therefor.
(d) Without prejudice to the survival of any of the other
agreements of any Guarantor under this Agreement or any of the other Loan
Documents, the agreements and obligations of each Guarantor contained in Section
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2.1(a) (with respect to enforcement expenses), the last sentence of Section 2.2,
Section 2.5 and this Section 5.4 shall survive the payment in full of the
Guaranteed Obligations and all of the other amounts payable under this
Agreement.
5.5 Continuing Guaranty. This Agreement is a continuing agreement and
shall: (a) remain in full force and effect until the Termination Date, (b) be
binding upon each Guarantor, its successors and assigns and (c) inure to the
benefit of and be enforceable by the Secured Parties and their successors,
transferees and assigns.
5.6 Amendments, etc.; Additional Guarantors; Successors and Assigns.
(a) No amendment to or waiver of any provision of this Agreement nor consent to
any departure by any Guarantor herefrom, shall in any event be effective unless
the same shall be in writing and signed by the Administrative Agent and, with
respect to any such amendment, by the Guarantors, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
(b) Upon the execution and delivery by any Person of a Joinder
Agreement in substantially the form of Exhibit G to the Credit Agreement, such
Person shall be referred to as an "Additional Guarantor" and shall be and become
a Guarantor, and each reference in this Agreement to "Guarantor" shall also mean
and be a reference to such Additional Guarantor.
(c) This Agreement shall be binding upon each Guarantor and its
successors, transferees and assigns and shall inure to the benefit of the
Administrative Agent and each other Secured Party and their respective
successors, transferees and assigns; provided, however, that no Guarantor may
assign its obligations hereunder without the prior written consent of the
Administrative Agent.
5.7 Addresses for Notices. All notices and other communications
provided for hereunder shall be in writing and mailed, delivered or transmitted
by telecopier to each party hereto at the address set forth in Section 10.02 of
the Credit Agreement (with any notice to a Guarantor being delivered to such
Guarantor in care of the Borrower). All such notices and other communications
shall be deemed to be given or made at the times provided in Section 10.02 of
the Credit Agreement.
5.8 Section Captions. Section captions used in this Agreement are for
convenience of reference only, and shall not affect the construction of this
Agreement.
5.9 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, (a) the legality, validity and enforceability
of the remaining provisions of this Agreement 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.
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5.10 Counterparts. This Agreement 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.
5.11 Governing Law, Etc. (a) THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(b) EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR
ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT
COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A
FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL
AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY OTHER SECURED PARTY MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AGAINST ANY GUARANTOR OR ITS PROPERTIES IN THE COURTS OF
ANY JURISDICTION.
(c) EACH GUARANTOR IRREVOCABLY AND UNCONDITI-ONALLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED
TO IN PARAGRAPH (b) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT.
(d) EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 5.7. NOTHING IN THIS
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AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW.
5.12 Right to Trial by Jury. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
5.13 Entire Agreement. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES
OR BY PRIOR OR CONTEMPORANEONS WRITTEN AGREEMENTS. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.
5.14 Release of Guarantor. Upon any Disposition of all of the
outstanding Equity Interests of any Guarantor (whether direct or indirect)
permitted by Section 7.05 of the Credit Agreement, the Administrative Agent
will, pursuant to Section 9.10 of the Credit Agreement, at the Borrower's
expense and without any representations, warranties or recourse of any kind
whatsoever, execute and deliver to the Borrower such documents as the Borrower
shall reasonably request to evidence the release of such Guarantor from its
obligations hereunder.
[Signature Page Follows]
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IN WITNESS WHEREOF, each Guarantor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
INTEGRA LIFESCIENCES CORPORATION, a
Delaware corporation
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President, Finance
INTEGRA LIFESCIENCES
INVESTMENT CORPORATION, a
a Delaware corporation
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
INTEGRA OHIO, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
INTEGRA MASSACHUSETTS, INC., a
Delaware corporation
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President and Treasurer
INTEGRA CLINICAL EDUCATION
INSTITUTE, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
INTEGRA HEALTHCARE PRODUCTS LLC,
a Delaware limited liability company
By: Integra LifeSciences
Corporation, its sole member
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
X. XXXXXX SURGICAL INSTRUMENTS, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
JARIT INSTRUMENTS, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
INTEGRA SELECTOR CORPORATION, a
Delaware corporation
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
INTEGRA NEUROSCIENCES PR, INC., a
Delaware corporation
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
SPINAL SPECIALTIES, INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
INTEGRA NEUROSCIENCES (IP), INC., a
Delaware corporation
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
INTEGRA NEUROSCIENCES
(INTERNATIONAL), INC., a Delaware
corporation
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
INTEGRA LIFESCIENCES (FRANCE) LLC,
a Delaware limited liability company
By: Integra NeuroSciences
(International), Inc., its sole
member
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
ACKNOWLEDGED AND ACCEPTED:
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
