Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
September 30, 2004, is by and among COLGATE MEDICAL LTD, a company formed under
the laws of England and Wales and registered with number 01311455 (the
"Borrower"), Orthofix International N.V., a Netherlands Antilles corporation
(the "Parent"), those Subsidiaries of the Borrower identified as a "Guarantor"
on the signature pages hereto (each, a "Subsidiary Guarantor" and, together with
the Parent, the "Guarantors"), INTAVENT ORTHOFIX LIMITED, a company formed under
the laws of England and Wales ("IOL"), the lenders identified on the signature
pages hereto as the Lenders (the "Lenders"), and WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent").
W I T N E S S E T H
WHEREAS, the Borrower, the Guarantors, the Lenders party thereto, and the
Administrative Agent have entered into that certain Credit Agreement dated as of
December 30, 2003 (as amended, supplemented or otherwise modified through the
date hereof, the "Credit Agreement"; capitalized terms used herein shall have
the meanings ascribed thereto in the Credit Agreement);
WHEREAS, the Borrower has requested certain amendments to the Credit
Agreement as set forth herein; and
WHEREAS, the Required Lenders and the Term Loan Lenders have agreed to such
amendments subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the agreements hereinafter set forth,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS TO CREDIT AGREEMENT
1.1 New Definitions. The following definitions are hereby added to Section
1.1 of the Credit Agreement in the appropriate alphabetical order:
"Call Protection" shall have the meaning set forth in Section 2.7(a).
"First Amendment Effective Date" shall mean September 30, 2004.
1.2 Existing Definitions.
(a) The pricing grid in the definition of "Applicable Percentage" set
forth in Section 1.1 of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
- -----------------------------------------------------------------------------------------------------------
LIBOR Rate
Alternate Margin for
Base Rate Revolving Alternate
Borrower Margin for Loans and Base Rate LIBOR Rate
Leverage Revolving Letter of Margin for Margin for Commitment
Level Ratio Loans Credit Fee Term Loans Term Loans Fee
- -----------------------------------------------------------------------------------------------------------
I greater than or 1.25% 2.25% 1.50% 2.50% 0.50%
equal to 2.50 to 1.0
- -----------------------------------------------------------------------------------------------------------
II greater than or 1.00% 2.00% 1.25% 2.25% 0.50%
equal to 2.00 to 1.0 but
less than 2.50 to 1.0
- -----------------------------------------------------------------------------------------------------------
III greater than or 0.75% 1.75% 1.00% 2.00% 0.50%
equal to 1.50 to 1.0 but
less than 2.00 to 1.0
- -----------------------------------------------------------------------------------------------------------
IV less than 1.50 to 1.0 0.50% 1.50% 1.00% 2.00% 0.375%
- -----------------------------------------------------------------------------------------------------------
(b) The definition of "Credit Party Obligations" in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"Credit Party Obligations" shall mean, without duplication, (a) all of
the obligations of the Credit Parties to the Lenders (including the Issuing
Lender) and the Administrative Agent, whenever arising, under this
Agreement, the Notes or any of the other Credit Documents (including, but
not limited to, any interest accruing after the occurrence of a filing of a
petition of bankruptcy under the Bankruptcy Code with respect to any Credit
Party, regardless of whether such interest is an allowed claim under the
Bankruptcy Code), (b) all of the obligations of IOL to the Lenders and the
Administrative Agent, whenever arising, under the IOL Limited Guaranty and
the UK Collateral Documents and (c) all liabilities and obligations,
whenever arising, owing from any Credit Party or any of its Subsidiaries to
any Hedging Agreement Provider arising under any Secured Hedging Agreement
permitted pursuant to Section 6.1(e).
1.3 Section 2.2(b). Section 2.2(b) of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
Section 2.2 Term Loan Facility.
-------------------
**********
(b) Repayment of Term Loan. The principal amount of the Term Loan as of
the First Amendment Effective Date (after giving effect to any prepayment of
the Term Loan on or before such date) shall be repaid in eighteen (18)
consecutive quarterly installments as follows, unless accelerated sooner
pursuant to Section 7.2:
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================================================================================
Principal Amortization Payment Date Term Loan
Principal Amortization Payment
- --------------------------------------------------------------------------------
September 30, 2004 $2,400,000
- --------------------------------------------------------------------------------
December 31, 2004 $2,400,000
- --------------------------------------------------------------------------------
March 31, 2005 $2,400,000
- --------------------------------------------------------------------------------
June 30, 2005 $2,400,000
- --------------------------------------------------------------------------------
September 30, 2005 $2,400,000
- --------------------------------------------------------------------------------
December 31, 2005 $2,500,000
- --------------------------------------------------------------------------------
March 31, 2006 $2,500,000
- --------------------------------------------------------------------------------
June 30, 2006 $2,500,000
- --------------------------------------------------------------------------------
September 30, 2006 $2,500,000
- --------------------------------------------------------------------------------
December 31, 2006 $2,500,000
- --------------------------------------------------------------------------------
March 31, 2007 $2,500,000
- --------------------------------------------------------------------------------
June 30, 2007 $2,500,000
- --------------------------------------------------------------------------------
September 30, 2007 $2,500,000
- --------------------------------------------------------------------------------
December 31, 2007 $2,500,000
- --------------------------------------------------------------------------------
March 31, 2008 $15,000,000
- --------------------------------------------------------------------------------
June 30, 2008 $15,000,000
- --------------------------------------------------------------------------------
September 30, 2008 $15,000,000
- --------------------------------------------------------------------------------
Maturity Date The remainder of the outstanding Term Loan
- --------------------------------------------------------------------------------
*********
1.4 Section 2.7.
(a) The fourth sentence in Section 2.7(a) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
All prepayments under this Section 2.7(a) shall be subject to Section
2.17, but otherwise without premium or penalty; provided that any
refinancing of the outstanding Term Loan with the proceeds of a replacement
term loan on substantially the same terms to effect a re-pricing of the Term
Loan (A) during the first year following the First Amendment Effective Date
shall be made at 101% of par and (B) thereafter shall be made at par (the
"Call Protection").
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(b) The last sentence in Section 2.7(b)(vi) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
All prepayments under this Section 2.7(b) shall be subject to Section
2.17 and be accompanied by interest on the principal amount prepaid through
the date of prepayment, and any mandatory prepayment made, in whole or in
part, with respect to any refinancing of the outstanding Term Loan with the
proceeds of a replacement term loan on substantially the same terms to
effect a re-pricing of the Term Loan (A) during the first year following the
First Amendment Effective Date shall be made at 101% of par and (B)
thereafter shall be made at par.
ARTICLE II
CONDITIONS TO EFFECTIVENESS
2.1 Closing Conditions.
This Amendment shall become effective as of the First Amendment Effective
Date upon satisfaction of the following conditions (in form and substance
reasonably acceptable to the Administrative Agent):
(a) Executed Amendment. Receipt by the Administrative Agent of a copy
of this Amendment duly executed by each of the Credit Parties, IOL, the
Required Lenders and the Term Loan Lenders.
(b) Resolutions. Receipt by the Administrative Agent of copies of
resolutions of the Board of Directors of each of the Credit Parties (other
than Breg Mexico S. de R.L. de C.V.) and IOL approving and adopting this
Amendment, the transactions contemplated herein and authorizing execution
and delivery hereof, certified by a secretary or assistant secretary of such
Credit Party or IOL to be true and correct and in force and effect as of the
date hereof.
(c) Good Standing. Copies of certificates of good standing, existence
or its equivalent (to the extent applicable) with respect to the each Credit
Party (other than Breg Mexico S. de R.L. de C.V.) and IOL certified as of a
recent date by the appropriate Governmental Authorities of the jurisdiction
of incorporation or organization.
(d) Term Loan Prepayment. The Borrower shall have made a voluntary
prepayment of the Term Loan in a principal amount of $10,000,000.
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ARTICLE III
MISCELLANEOUS
3.1 Amended Terms. On and after the First Amendment Effective Date, all
references to the Credit Agreement in each of the Credit Documents shall
hereafter mean the Credit Agreement as amended by this Amendment. Except as
specifically amended hereby or otherwise agreed, the Credit Agreement is hereby
ratified and confirmed and shall remain in full force and effect according to
its terms.
3.2 Representations and Warranties of Credit Parties. Each of the Credit
Parties and IOL represents and warrants as follows:
(a) It has taken all necessary action to authorize the execution,
delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by such Person
and constitutes such Person's legal, valid and binding obligations,
enforceable in accordance with its terms, except as such enforceability may
be subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting creditors'
rights generally and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in
equity).
(c) No consent, approval, authorization or order of, or filing,
registration or qualification with, any court or governmental authority or
third party is required in connection with the execution, delivery or
performance by such Person of this Amendment.
(d) The representations and warranties set forth in Article III of the
Credit Agreement are true and correct in all material respects as of the
date hereof (except for those which expressly relate to an earlier date).
(e) With respect to the Secretary's Certificates, each dated December
30, 2003, that each Credit Party and IOL delivered to the Administrative
Agent, (i) those Persons enumerated as duly elected and qualified officers,
and for whom specimen signatures were provided, remain duly authorized to
execute and deliver on behalf of such Credit Party or IOL the Credit
Documents to which it is a party and any certificate or other document to be
delivered by such Credit Party or IOL pursuant to or in connection with the
Credit Documents and (ii) the articles of incorporation, bylaws or other
organizational documents attached to such Secretary's Certificate have not
been amended, restated or otherwise modified since December 30, 2003.
(f) Before and after giving effect to this Amendment, no Default or
Event of Default shall exist.
3.3 Acknowledgment of Guarantors. The Guarantors and IOL acknowledge and
consent to all of the terms and conditions of this Amendment and agree that this
Amendment and all
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documents executed in connection herewith do not operate to reduce or discharge
the Guarantors' obligations under the Credit Documents.
3.4 Credit Document. This Amendment shall constitute a Credit Document under
the terms of the Credit Agreement.
3.5 Entirety. This Amendment and the other Credit Documents embody the
entire agreement between the parties hereto and supersede all prior agreements
and understandings, oral or written, if any, relating to the subject matter
hereof.
3.6 Counterparts; Telecopy. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. Delivery of an
executed counterpart to this Amendment by telecopy shall be effective as an
original and shall constitute a representation that an original will be
delivered.
3.7 No Actions, Claims, Etc. As of the date hereof, each of the Credit
Parties and IOL hereby acknowledges and confirms that it has no knowledge of any
actions, causes of action, claims, demands, damages and liabilities of whatever
kind or nature, in law or in equity, against the Administrative Agent, the
Lenders, or the Administrative Agent's or the Lenders' respective officers,
employees, representatives, agents, counsel or directors arising from any action
by such Persons, or failure of such Persons to act, under the Credit Agreement
on or prior to the date hereof.
3.8 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
3.9 Consent to Jurisdiction; Service of Process; Waiver of Jury Trial. The
jurisdiction, services of process and waiver of jury trial provisions set forth
in Sections 9.14 and 9.17 of the Credit Agreement are hereby incorporated by
reference, mutatis mutandis.
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IN WITNESS WHEREOF the Borrower, the Guarantors, IOL, the Required Lenders
and the Term Loan Lenders have caused this Amendment to be duly executed on the
date first above written.
BORROWER: COLGATE MEDICAL LTD,
a company formed under the laws of England and
Wales
By: /s/ THOMAS HEIN
--------------------------
Name: THOMAS HEIN
Title: DIRECTOR
GUARANTORS: ORTHOFIX INTERNATIONAL N.V.,
a Netherlands Antilles corporation
By: /s/ THOMAS HEIN
--------------------------
Name: THOMAS HEIN
Title: CFO
ORTHOFIX HOLDINGS, INC.,
a Delaware Corporation
By: /s/ THOMAS HEIN
--------------------------
Name: THOMAS HEIN
Title: DIRECTOR
ORTHOFIX INC.,
a Minnesota corporation
By: /s/ THOMAS HEIN
--------------------------
Name: THOMAS HEIN
Title: DIRECTOR & CFO
BREG, INC.,
a California corporation
By: /s/ THOMAS HEIN
--------------------------
Name: THOMAS HEIN
Title: DIRECTOR
ORTHOFIX UK LTD,
a company formed under the laws of England and
Wales
By: /s/ THOMAS HEIN
--------------------------
Name: THOMAS HEIN
Title: DIRECTOR
ORTHOFIX US LLC,
a Delaware limited liability company
By: ORTHOFIX UK LTD,
Sole Member
By: /s/ THOMAS HEIN
--------------------------
Name: THOMAS HEIN
Title: DIRECTOR
AMEI TECHNOLOGIES INC.,
a Delaware corporation
By: /s/ THOMAS HEIN
--------------------------
Name: THOMAS HEIN
Title: DIRECTOR & TREASURER
NEOMEDICS, INC.,
a New Jersey corporation
By: /s/ THOMAS HEIN
--------------------------
Name: THOMAS HEIN
Title: DIRECTOR & TREASURER
OSTEOGENICS INC.,
a Delaware corporation
By: /s/ THOMAS HEIN
--------------------------
Name: THOMAS HEIN
Title: DIRECTOR & TREASURER
Breg Mexico S. de R.L. de C.V.,
a company organized under the laws of Mexico
By: /s/ BRADLEY R. MASON
--------------------------
Name: BRADLEY R. MASON
Title: PARTNER
IOL: INTAVENT ORTHOFIX LIMITED,
a company formed under the laws of England and
Wales
By: /s/ GALVIN MOULD
--------------------------
Name: GALVIN MOULD
Title: DIRECTOR
ADMINISTRATIVE AGENT
AND EXISTING LENDERS: WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent and as an Existing Lender
By: /s/ SCOTT SANTA CRUZ
--------------------------
Name: SCOTT SANTA CRUZ
Title: DIRECTOR
Allied Irish Bank, p.l.c.,
an Existing Lender
By: /s/ JOSEPH S. AUGUSTINI
--------------------------
Name: JOSEPH S. AUGUSTINI
Title: VICE PRESIDENT
By: /s/ MARGARET BRENNAN
--------------------------
Name: MARGARET BRENNAN
Title: VICE PRESIDENT
AIB Debt Management Limited,
as an Existing Lender
By: /s/ JOSEPH AUGUSTINI
--------------------------
Name: JOSEPH AUGUSTINI
Title: VICE PRESIDENT
INVESTMENT ADVISOR TO
AIB DEBT MANAGEMENT, LIMITED
By: /s/ MARGARET BRENNAN
--------------------------
Name: MARGARET BRENNAN
Title: VICE PRESIDENT
INVESTMENT ADVISOR TO
AIB DEBT MANAGEMENT, LIMITED
Bank of America, N.A.
By: /s/ JOHN L. MERCURI
--------------------------
Name: JOHN L. MERCURI
Title: SENIOR VICE PRESIDENT
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By: /s/ STEVE J. WARNER
--------------------------
Name: STEVE J. WARNER
Title: DULY AUTHORIZED SIGNATORY
IKB DEUTSCHE INDUSTRIEBANK A.G. LONDON BRANCH,
as an Existing Lender
By: /s/ D.M. MATSON
--------------------------
Name: D.M. MATSON
Title: DIRECTOR
By: /s/ M. J. WRIGHT
--------------------------
Name: M. J. WRIGHT
Title: DIRECTOR
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ CHRIS GOERGEN
--------------------------
Name: CHRIS GOERGEN
Title: AUTHORIZED SIGNATORY
By: /s/ JERRY D. ZINKULA
--------------------------
Name: JERRY D. ZINKULA
Title: AUTHORIZED SIGNATORY
BLACKROCK LIMITED DURATION INCOME FUND
BLACKROCK SENIOR LOAN TRUST
MAGNETITE IV CLO, LIMITED
MAGNETITE V CLO, LIMITED
SENIOR LOAN FUND
By: /s/ TOM COLWELL
--------------------------
Name: TOM COLWELL
Title: AUTHORIZED SIGNATORY
HAMILTON FLOATING RATE FUND, LLC
By: /s/ DEAN STEPHAN
--------------------------
Name: DEAN STEPHAN
Title: MANAGING DIRECTOR
HAMILTON FLOATING RATE FUND, LLC
By: /s/ DEAN STEPHAN
--------------------------
Name: DEAN STEPHAN
Title: MANAGING DIRECTOR
EATON VANCE SENIOR INCOME TRUST
BY: EATON VANCE MANAGEMENT
AS INVESTMENT ADVISOR
By: /s/ MICHAEL B. BOTTHOF
--------------------------
Name: MICHAEL B. BOTTHOF
Title: VICE PRESIDENT
EATON VANCE CDO VI LTD
BY: EATON VANCE MANAGEMENT
AS INVESTMENT ADVISOR
By: /s/ MICHAEL B. BOTTHOF
--------------------------
Name: MICHAEL B. BOTTHOF
Title: VICE PRESIDENT
EATON VANCE SENIOR FLOATING-RATE TRUST
BY: EATON VANCE MANAGEMENT
AS INVESTMENT ADVISOR
By: /s/ MICHAEL B. BOTTHOF
--------------------------
Name: MICHAEL B. BOTTHOF
Title: VICE PRESIDENT
EATON VANCE INSTITUTIONAL SENIOR LOAN FUND
BY: EATON VANCE MANAGEMENT
AS INVESTMENT ADVISOR
By: /s/ MICHAEL B. BOTTHOF
--------------------------
Name: MICHAEL B. BOTTHOF
Title: VICE PRESIDENT
EATON VANCE LIMITED DURATION INCOME FUND
BY: EATON VANCE MANAGEMENT
AS INVESTMENT ADVISOR
By: /s/ MICHAEL B. BOTTHOF
--------------------------
Name: MICHAEL B. BOTTHOF
Title: VICE PRESIDENT
EATON VANCE VT FLOATING-RATE INCOME FUND
BY: EATON VANCE MANAGEMENT
AS INVESTMENT ADVISOR
By: /s/ MICHAEL B. BOTTHOF
--------------------------
Name: MICHAEL B. BOTTHOF
Title: VICE PRESIDENT
EATON VANCE FLOATING-RATE INCOME TRUST
BY: EATON VANCE MANAGEMENT
AS INVESTMENT ADVISOR
By: /s/ MICHAEL B. BOTTHOF
--------------------------
Name: MICHAEL B. BOTTHOF
Title: VICE PRESIDENT
GRAYSON & CO
BY: BOSTON MANAGEMENT AND RESEARCH
AS INVESTMENT ADVISOR
By: /s/ MICHAEL B. BOTTHOF
--------------------------
Name: MICHAEL B. BOTTHOF
Title: VICE PRESIDENT
SENIOR DEBT PORTFOLIO
BY: BOSTON MANAGEMENT AND RESEARCH
AS INVESTMENT ADVISOR
By: /s/ MICHAEL B. BOTTHOF
--------------------------
Name: MICHAEL B. BOTTHOF
Title: VICE PRESIDENT
TOLLI & CO.
BY: EATON VANCE MANAGEMENT
AS INVESTMENT ADVISOR
By: /s/ MICHAEL B. BOTTHOF
--------------------------
Name: MICHAEL B. BOTTHOF
Title: VICE PRESIDENT
FORTRESS PORTFOLIO TRUST, as Lender
By: Four Corners Capital Management LLC,
as Collateral Manager
By: /s/ ADAM BROWN
--------------------------
Name: ADAM BROWN
Title: VICE PRESIDENT
SEMINOLE FUNDING LLC
By: /s/ MEREDITH J. KOSLICK
--------------------------
Name: MEREDITH J. KOSLICK
Title: ASSISTANT VICE PRESIDENT
COLUMBIA FLOATING RATE ADVANTAGE FUND
BY: Highland Capital Management, L.P., its
Investment Advisor
By: /s/ MARK OKADA
--------------------------
Name: MARK OKADA
Title: Chief Investment Officer
Highland Capital Management, L.P.
COLUMBIA FLOATING RATE LIMITED LIABILITY
COMPANY
BY: Highland Capital Management, L.P., its
Investment Advisor
By: /s/ MARK OKADA
--------------------------
Name: MARK OKADA
Title: Chief Investment Officer
Highland Capital Management, L.P.
NEW LENDERS
- -----------
ING SENIOR INCOME FUND
By: ING Investment Management Co.
as its investment manager
By: /s/ MICHAEL PRINCE, CFA
--------------------------
Name: MICHAEL PRINCE, CFA
Title: Vice President
Floating Rate Income Strategies Fund, Inc.
By: /s/ JAYL MATTEO
--------------------------
Name: JAYL MATTEO
Title:
SENIOR HIGH INCOME PORTFOLIO, INC.
By: /s/ JAYL MATTEO
--------------------------
Name: JAYL MATTEO
Title:
SENIOR FLOATING RATE TRUST
By: /s/
---------------------------
Name:
Title:
Morgan Stanley Price Income Trust
By: /s/ ELIZABETH BODISCH
--------------------------
Name: Elizabeth Bodisch
Title: Authorized Signatory
PPM SHADOW CREEK FUNDING LLC
By: /s/ MEREDITH J. KOSLICK
--------------------------
Name: MEREDITH J. KOSLICK
Title: Assistant Vice President
PPM SPYGLASS FUNDING TRUST
----------------------------
By: /s/ ANN E. MORRIS
--------------------------
Name: ANN E. MORRIS
Title: Authorized Agent
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
By: /s/ JON C. HEINY
--------------------------
Name: JON C. HEINY
Title: Counsel
By: /s/
--------------------------
Name:
Title:
Citigroup Investments Corporate Loan Fund Inc.
By: Travelers Asset Management International
Company LLC
By: /s/ MELANIE HANLON
--------------------------
Name: MELANIE HANLON
Title: Vice President
VAN KAMPEN
SENIOR INCOME TRUST
By: Van Kampen Investment Advisory Corp.
By: /s/ BRAD LANGS
--------------------------
Name: BRAD LANGS
Title: EXECUTIVE DIRECTOR
VAN KAMPEN
SENIOR INCOME TRUST
By: Van Kampen Investment Advisory Corp.
By: /s/ BRAD LANGS
--------------------------
Name: BRAD LANGS
Title: EXECUTIVE DIRECTOR