April 1, 2009 ArthroCare Corporation
Exhibit 10.73
[Bank of America Letterhead]
April 1, 2009
ArthroCare
Corporation
0000 Xxxxxx
Xxxxxxxxx
Building Two, Suite 100
Austin, Texas 78735
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Attention:
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Xx. Xxxxxxx
Xxxxxxx
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Xx. Xxxxxxx Xxx, Senior Vice-President
and General Counsel
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Re:
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Credit Agreement dated as of
January 13, 2006 (as amended by that certain First Amendment dated as of December
18, 2007, that certain Second Amendment and Consent dated as of November
26, 2008, that certain Waiver dated as of January 16, 2009 and as further
amended, restated, supplemented or otherwise modified prior to the date
hereof, the “Credit
Agreement”) by and
among ArthroCare Corporation, a Delaware corporation, as Borrower (the
“Borrower”), the banks and other financial
institutions party thereto from time to time, as Lenders (the
“Lenders”) and Bank of America, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer (the “Administrative
Agent”). Each
capitalized term used herein but not defined herein shall be defined in
accordance with the Credit
Agreement.
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Dear Messrs. Xxxxxxx and
Rew:
This letter also references those
certain letters to the Borrower from the Administrative Agent dated February 23,
2009 (the “February 23
Letter”) and March 20, 2009
(the “March 20
Letter,” and together with
the February 23 Letter, the “Default
Letters”). As you are
aware, pursuant to the Default Letters the Administrative Agent notified you of
the existence and continuance of several Existing Events of Default (as defined
in the March 20 Letter) under the Credit Agreement. In the Default Letters, the
Administrative Agent further notified you that, by virtue of the Existing Events of Default
and in addition to any pertinent provision of any other Loan Document, the
Administrative Agent and the Lenders were not required to, and did not intend to, honor any
request for any Credit Extension (other than the possible extension/renewal of
an existing Letter of Credit) and that, among other things, the Administrative
Agent was expressly reserving its ability to exercise any further rights,
powers, and/or remedies in its sole discretion.
Consistent with the foregoing, this
letter is to further notify you that pursuant to Section 8.02 of the Credit
Agreement, the Administrative Agent, at the request of the Required Lenders, hereby declares the
commitment of each Lender to make Loans and any obligation of the L/C Issuer to
make L/C Credit Extensions to be terminated, and such commitments and obligation
are hereby terminated effective as of close of business on March 31,
2009.
Exhibit 10.73
ArthroCare
Corporation
April 1, 2009
Page 2
While the Administrative Agent and the
Lenders are not presently exercising any other rights, powers, or remedies
available to them with respect to the Existing Events of Default described
above, nothing contained herein shall be deemed to constitute any waiver by the
Administrative Agent or the Lenders of any Existing Events of Default or any
other Events of Default, and the Administrative Agent, on behalf of itself and
the Lender, hereby expressly reserves all rights, powers, and remedies, and
shall be entitled, to pursue at any time and from time to time, without notice,
demand or any other action, any and all rights, powers, and/or remedies provided
under the Credit Agreement and/or the other Loan Documents, at law, in equity or
otherwise, whether or not with respect to any Existing Events of Default or any
other Events of Default, all in the sole and absolute discretion of the
Administrative Agent and the Lenders. Neither this letter nor any other
communication between the Administrative Agent and/or the Lenders, on the one
hand, and the Borrower, on the other hand, shall be construed as a consent,
waiver, forbearance or other modification with respect to any term, condition or
other provision of the Credit Agreement and/or any other Loan Document. Neither
this letter, any other communication between the Administrative Agent and/or the
Lenders, on the one hand, and the Borrower, on the other hand, nor any act or
omission on the part of the Administrative Agent and/or the Lenders constitutes,
or shall be deemed to constitute, a course of conduct or a course of dealing so
as to justify an expectation by the Borrower that the Administrative Agent and
the Lenders will not exercise any rights or remedies available to them with
respect to any Existing Event of Default, any other existing Event of Default or
any subsequent Event of Default or an expectation by the Borrower that the
Administrative Agent and the Lenders will waive any Existing Event of Default,
any other existing Event of Default or any subsequent Event of
Default.
Without limiting the generality of the
foregoing, nothing contained herein is intended to or shall be deemed to
constitute any binding commitment or other agreement on behalf of the
Administrative Agent or the Lenders to enter into any amendment to the Credit
Agreement or any forbearance or other type of agreement with respect to the
Existing Events of Default or any other Events of Default, including, without
limitation, to extend any funding or loan commitment pursuant to any such
amendment or other type of agreement. As conspicuously set forth in the Credit
Agreement, only terms in writing executed by the Administrative Agent and the
requisite Lenders (and not other terms or oral promises) are enforceable against
the Administrative Agent or the Lenders.
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Very truly
yours,
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BANK OF AMERICA, N.A., as
Administrative
Agent on behalf of the
Lenders
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By:
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/s/ Xxxxx Xxxxxxxxx
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Name:
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Xxxxx Xxxxxxxxx
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Title:
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Senior Vice
President
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Phone:
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(###)
###-####
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