Execution Copy
FOURTH AMENDMENT
FOURTH AMENDMENT dated as of September 5, 2007 (this "Amendment"),
among INTEGRA LIFESCIENCES HOLDINGS CORPORATION, a Delaware corporation (the
"Borrower"), the lenders party to the Credit Agreement (as defined below)
(collectively, the "Lenders"), BANK OF AMERICA, N.A., as Administrative Agent,
Swing Line Lender and L/C Issuer (the "Administrative Agent"), CITIBANK, N.A.,
successor by merger to Citibank, FSB, as Syndication Agent (the "Syndication
Agent"), and JPMORGAN CHASE BANK, N.A., DEUTSCHE BANK TRUST COMPANY AMERICAS and
ROYAL BANK OF CANADA, as Co-Documentation Agents (the "Co-Documentation
Agents").
PRELIMINARY STATEMENTS:
(1) The Borrower, the Existing Lenders, the Administrative Agent,
the Co-Syndication Agents and the Co-Documentation Agents have
entered into a Credit Agreement, dated as of December 22, 2005 (the
"Original Agreement"), as amended by that certain First Amendment,
dated as of February 15, 2006 (the "First Amendment"), that certain
Second Amendment, dated as of February 23, 2007 (the "Second
Amendment"), and that certain Third Amendment dated as of June 4,
2007 (the "Third Amendment"). The Original Agreement, as amended by
the First Amendment, the Second Amendment and the Third Amendment,
is referred to in this Amendment as the "Credit Agreement", and the
Credit Agreement, as amended by, and together with this Amendment,
and as may be further amended, supplemented or otherwise modified
from time to time, is referred to herein as the "Amended
Agreement". Capitalized terms used but not defined in this
Amendment shall have the meanings assigned to them in the Credit
Agreement.
(2) The Borrower has requested the Lenders amend the Credit
Agreement as set forth below.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
SECTION 1.01. Amendments to Section 1.01.
(a) The definition of "Consolidated EBITDA" set forth in
Section 1.01 of the Credit Agreement is hereby deleted in its entirety
and replaced with the following:
""Consolidated EBITDA" means, for any period, for any Person
and its Subsidiaries determined 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
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Consolidated Net Income: (i) Consolidated Interest Charges for
such period; (ii) the provision for federal, state, local and
foreign income taxes payable for such period; (iii)
depreciation and amortization expense; (iv) other expenses and
all equity compensation charges reducing Consolidated Net
Income which do not represent a cash item in such period or
any future period; and (v) in the event IsoTis Acquisition is
consummated, restructuring charges and transaction expenses
that are actually incurred by the Borrower during the
applicable period as a result of the IsoTis Acquisition up to
but not exceeding an aggregate amount of $5,000,000.00;
provided, that, no such restructuring charges or transaction
expenses may be added back to the extent incurred after June
30, 2008; plus (b) in the event the IsoTis Acquisition is
consummated, then for the stated period, anticipated cost
savings resulting from the integration of the operations of
the Borrower and its Subsidiaries with IsoTis, Inc. not to
exceed (i) $14,680,000.00 for the trailing four-fiscal quarter
period ending as of the last day of the fiscal quarter in
which the consummation of the IsoTis Acquisition occurred,
(ii) $13,700,000.00 for the trailing four-fiscal quarter
period ending as of the last day of the first fiscal quarter
following the quarter in which consummation of the IsoTis
Acquisition occurred, (iii) $9,260,000.00 for the trailing
four-fiscal quarter period ending as of the last day of the
second fiscal quarter following the quarter in which
consummation of the IsoTis Acquisition occurred, and (v)
$4,660,000.00 for the trailing four-fiscal quarter period
ending as of the last day of the third fiscal quarter
following the quarter in which the consummation of the IsoTis
Acquisition occurred, and minus (c) 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. Consolidated EBITDA is subject to calculation on a Pro
Forma Basis in accordance with the provisions in Section 1.03.
For purposes of the Compliance Certificate which the Borrower
will be required to deliver to the Administrative Agent in
connection with the consummation of the IsoTis Acquisition,
the Borrower may add to Consolidated Net Income the
anticipated cost savings set forth in clause (b)(i) of this
definition above."
(b) The following definitions are hereby added to Section 1.01
of the Credit Agreement in appropriate alphabetical order:
""IsoTis Acquisition" means the acquisition by the Borrower,
or one of its wholly owned Domestic Subsidiaries, of IsoTis,
Inc., a Delaware Corporation, pursuant to an Agreement and
Plan of Merger among the Borrower, ICEMergerCorp, Inc. and
IsoTis, Inc. dated as of August 6, 2007.
SECTION 1.02. Amendments to Section 7.17. Section 7.17(a) of the Credit
Agreement is hereby deleted in its entirety and replaced with the following:
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"(a) Maximum Consolidated Total Leverage Ratio.
Permit the Consolidated Total Leverage Ratio of the Borrower
and its Consolidated Subsidiaries at any time during the four
consecutive fiscal quarter periods set forth below to be
greater than the ratio set forth opposite such period:
Trailing Four Fiscal Maximum Consolidated Total
Quarters Ending Leverage Ratio
--------------- --------------
September 30, 2007 through 4.5 to 1.00
June 30, 2008
September 30, 2008 and
continuing thereafter 4.0 to 1.00"
SECTION 1.03. Representations and Warranties. The Borrower hereby
represents and warrants to the Administrative Agent and the Lenders, as
follows:
(a) The representations and warranties set forth in Article V
of the Credit Agreement and in each other Loan Document are true and
correct in all material respects on and as of the date hereof and on
and as of the Fourth Amendment Effective Date (as defined below) with
the same effect as though made on and as of the date hereof or the
Fourth Amendment Effective Date, as the case may be, except to the
extent such representations and warranties expressly relate to an
earlier date (in which case such representations and warranties shall
be true and correct in all material respects on and as of such earlier
date), except that for purposes of this Amendment, the representations
and warranties contained in subsections (a) and (b) of Section 5.05 of
the Credit Agreement shall be deemed to refer to the most recent
statements furnished pursuant to subsections (a) and (b), respectively,
of Section 6.01 of the Credit Agreement.
(b) On the date hereof and on the Fourth Amendment Effective
Date, no Default or Event of Default has occurred and is continuing.
(c) The execution, delivery and performance of this Amendment
by the Borrower have been duly authorized by all requisite corporate or
other organizational action.
(d) This Amendment constitutes the legal, valid and binding
obligation of the Borrower enforceable against the Borrower in
accordance with its terms.
(e) The execution, delivery and performance of this Amendment
by the Borrower do not and will not (i) contravene the terms of any of
the Borrower's Organization Documents; (ii) conflict with or result in
any breach or contravention of, or (except for the Liens created under
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the Loan Documents) the creation of any Lien under, or require any
payment to be made under (A) any Contractual Obligation to which the
Borrower or the Borrower's Affiliate is a party or affecting the
Borrower or the properties of the Borrower or any of its subsidiaries
or (B) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which the Borrower or its property
is subject; or (iii) violate any Law.
SECTION 1.04. Effectiveness. This Amendment shall become effective only
upon satisfaction of the following conditions precedent (the first date upon
which each such condition has been satisfied being herein called the "Fourth
Amendment Effective Date"):
(a) The Administrative Agent shall have received duly executed
counterparts of (i) this Amendment which, when taken together, bear the
authorized signatures of the Borrower and the Required Lenders and (ii)
the Reaffirmation of Guaranty which, when taken together, bear the
authorized signatures of each Subsidiary Guarantor and the
Administrative Agent.
(b) The representations and warranties set forth in Section
1.03 hereof shall be true and correct on and as of the Fourth Amendment
Effective Date.
(c) The Administrative Agent shall have received all fees and
expenses required to be paid by the Borrower pursuant to Section 1.06
of this Amendment.
(d) The Lenders shall have received such other documents,
legal opinions, instruments and certificates as they shall reasonably
request and such other documents, legal opinions, instruments and
certificates shall be satisfactory in form and substance to the Lenders
and their counsel. All corporate and other proceedings taken or to be
taken in connection with this Amendment and all documents incidental
thereto, whether or not referred to herein, shall be satisfactory in
form and substance to the Lenders and their counsel.
SECTION 1.05. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE
TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 1.06. Fees and Expenses. The Borrower shall pay (i) to the
Administrative Agent, for the account of each Lender that executes and delivers
this Amendment on or before 5:00 pm Charlotte, North Carolina time on September
5, 2007 (each, an "Approving Lender"), an amount equal to .05% of such Approving
Lender's Commitment as in effect as of such date and time and (ii) all
reasonable out-of-pocket expenses incurred by the Administrative Agent in
connection with the preparation, negotiation, execution, delivery and
enforcement of this Amendment, including, but not limited to, the reasonable
fees and disbursements of counsel.
SECTION 1.07. Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one agreement. Delivery by facsimile by
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any of the parities hereto of an executed counterpart of this Amendment shall be
as effective as an original executed counterpart hereof and shall be deemed a
representation that an original executed counterpart hereof will be delivered,
but the failure to deliver a manually executed counterpart shall not affect the
validity, enforceability or binding effect of this Amendment.
SECTION 1.08. Credit Agreement. Except as expressly set forth herein,
the amendments provided herein shall not by implication or otherwise limit,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders or the Administrative Agent under the Credit Agreement or any other Loan
Document, nor shall they constitute a waiver of any Default or Event of Default,
nor shall they alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document. Each of the amendments provided herein
shall apply and be effective only with respect to the provisions of the Credit
Agreement specifically referred to by such amendment. Except as expressly
amended herein, the Credit Agreement shall continue in full force and effect in
accordance with the provisions thereof. As used in the Credit Agreement, the
terms "Agreement", "herein", "hereinafter", "hereunder", "hereto" and words of
similar import shall include, from and after the Fourth Amendment Effective
Date, the Amended Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date first above
written.
Borrower:
INTEGRA LIFESCIENCES HOLDINGS CORPORATION,
a Delaware corporation
By:
-----------------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date first above
written.
BANK OF AMERICA, N.A., as Administrative
Agent
By:
------------------------------------
Name:
Title:
BANK OF AMERICA, N.A., as Swing Line
Lender, L/C Issuer and as a Lender
By:
------------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date first above
written.
CITIBANK, N.A., successor by merger to
Citibank, FSB, as Syndication Agent and
as a Lender
By:
------------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date first above
written.
THE ROYAL BANK OF CANADA, as
Co-Documentation Agent and as a Lender
By:
-----------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date first above
written.
JPMORGAN CHASE BANK, N.A., as
Co-Documentation Agent and as a Lender
By:
------------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date first above
written.
DEUTSCHE BANK TRUST COMPANY AMERICAS, as
Co-Documentation Agent and as a Lender
By:
------------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date first above
written.
WACHOVIA BANK, NATIONAL ASSOCIATION, as
a Lender
By:
-----------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date first above
written.
CITIZENS BANK PA, as a Lender
By:
------------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date first above
written.
HSBC BANK USA, NATIONAL ASSOCIATION,
as a Lender
By:
----------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date first above
written.
COMMERCE BANK, N.A., as a Lender
By:
-----------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date first above
written.
PEOPLE'S UNITED BANK, as a Lender
By:
---------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date first above
written.
XXXXX BROTHERS XXXXXXXX & CO, as a
Lender
By:
---------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date first above
written.
PNC BANK NATIONAL ASSOCIATION, as a
Lender
By:
----------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date first above
written.
XXXXXX XXXXXXX BANK, as a Lender
By:
---------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date first above
written.
CIBC INC., as a Lender
By:
---------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date first above
written.
XXXXXXX SACHS CREDIT PARTNERS L.P.,
as a Lender
By:
------------------------------
Name:
Title:
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