EXHIBIT 10.1
EXECUTION COPY
AMENDMENT NO. 4 dated as of December 3, 2004
(this "Amendment"), to the Credit Agreement dated as
of August 1, 2001, as heretofore amended (as so
amended, the "Credit Agreement"), among WRIGHT
MEDICAL GROUP, INC., a Delaware corporation, WRIGHT
MEDICAL TECHNOLOGY, INC., a Delaware corporation, the
LENDERS from time to time party thereto, JPMORGAN
CHASE BANK, N.A., formerly known as The Chase
Manhattan Bank, as administrative agent and
collateral agent, and the other parties thereto.
A. Pursuant to the Credit Agreement, the Lenders and the
Issuing Bank have extended credit to the Borrower, and have agreed to extend
credit to the Borrower, in each case pursuant to the terms and subject to the
conditions set forth therein.
B. Section 6.04 of the Credit Agreement places limitations on,
among other things, the ability of the Loan Parties to make investments in, and
make or permit to exist loans or advances to, Subsidiaries that are not Loan
Parties.
C. Holdings and the Borrower desire to increase the ability of
Loan Parties to make investments in, and make or permit to exist loans or
advances to, Subsidiaries that are not Loan Parties. Accordingly, Holdings and
the Borrower have informed the Administrative Agent that they seek an amendment
of Section 6.04 of the Credit Agreement to increase the permitted basket for
investments by the Loan Parties in, and loans and advances by the Loan Parties
to, Subsidiaries that are not Loan Parties from 10% of the consolidated assets
of Holdings to 20% of the consolidated assets of Holdings.
D. Section 6.05 of the Credit Agreement places limitations on
the ability of Holdings, the Borrower and the Subsidiaries to sell, transfer,
lease or otherwise dispose of their assets.
E. The Borrower intends to participate in a tax-saving payment
in-lieu-of-tax program instituted by the Industrial Development Board of the
Town of Arlington, Tennessee (the "Arlington Industrial Development Board"),
pursuant to which the Borrower shall transfer title in certain of its assets to,
and thereafter lease such assets from, the Arlington Industrial Development
Board. Accordingly, Holdings and the Borrower have informed the Administrative
Agent that they seek an amendment of Section 6.05 of the Credit Agreement as set
forth herein.
F. The Required Lenders are willing to agree to such
amendments pursuant to the terms, subject to the conditions and to the extent
set forth herein.
G. Each capitalized term used and not otherwise defined herein
shall have the meaning assigned to such term in the Credit Agreement.
2
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments. (a) Section 6.04 of the Credit
Agreement is hereby amended by amending and restating clauses (c) and (d)
thereof in their entirety as follows:
"(c) investments by (i) Holdings in the capital stock of the
Borrower, (ii) the Borrower in the capital stock of any Subsidiary (not
including any such Subsidiary that becomes a Subsidiary pursuant to
such investment) and (iii) any Subsidiary in the capital stock of any
other Subsidiary (not including any such Subsidiary that becomes a
Subsidiary pursuant to such investment); provided that (A) any such
shares of capital stock held by a Loan Party shall be pledged, if
required, pursuant to the applicable Loan Document (subject to the
limitations applicable to voting stock of a Foreign Subsidiary referred
to in Section 5.12) and (B) the amount of investments by Loan Parties
in Subsidiaries that are not Loan Parties, other than the sale,
transfer or disposition of capital stock (or of substantially all the
assets) of Wright Cremascoli Orthotechnique SA owned by the Borrower to
Wright Medical Europe SA (directly or pursuant to an initial transfer
to 2 Hip Holdings SAS), together with the amount of all outstanding
loans or advances to such Subsidiaries (other than investments, loans
or advances listed on Schedule 6.04), shall not exceed 20% of
Consolidated Assets at the time of such investment, loan or advance and
after giving effect thereto;
(d) loans or advances made by the Borrower to any Subsidiary
and made by any Subsidiary to the Borrower or any other Subsidiary;
provided that (i) any such loans and advances made by a Loan Party in
respect of Indebtedness for borrowed money shall be evidenced by a
promissory note payable upon demand and pledged in accordance with
Section 3.02(b) of the Guarantee and Collateral Agreement and (ii) the
outstanding amount of all such loans and advances by Loan Parties to
Subsidiaries that are not Loan Parties, together with the amount of
investments in such Subsidiaries (other than investments, loans or
advances listed on Schedule 6.04), shall not exceed 20% of Consolidated
Assets at the time of such loan or advance and after giving effect
thereto;"
(b) Section 6.05 of the Credit Agreement is hereby amended by
deleting "and" after the semicolon at the end of clause (f) thereof, inserting a
new clause (g) immediately after such clause (f), redesignating the existing
clause (g) as clause (h) and amending the existing clause (g) and the final
proviso, in each case, as follows:
"(f) sales, transfers and dispositions of Loaner Instruments;
(g) transfer by the Borrower of assets, other than any real
property, to the Industrial Development Board of the Town of Arlington,
Tennessee, pursuant to a tax-saving payment in-lieu-of-tax program
instituted by such Board, in an aggregate amount not to exceed
$5,000,000; and
3
(h) sales, transfers and dispositions of assets not permitted
by clauses (a) through (g) above not to exceed $7,500,000 in the
aggregate during any fiscal year of Holdings;
provided that all sales, transfers, leases and other dispositions
permitted hereby (other than any transfer permitted under clause (g)
above) shall be made for fair value and, except in the case of sales,
transfers and other dispositions permitted under clause (b) above, for
at least 80% cash consideration and/or pricing concessions the
aggregate fair market value of which shall not exceed $5,000,000."
SECTION 2. Representations and Warranties. Each of Holdings
and the Borrower represents and warrants to each other party hereto that (a)
this Amendment has been duly executed and delivered by each of Holdings and the
Borrower and constitutes a legal, valid and binding obligation of Holdings and
the Borrower, enforceable against it in accordance with its terms, and (b) after
giving effect to this Amendment (i) the representations and warranties set forth
in Article III of the Credit Agreement are true and correct in all material
respects on and as of the date hereof, except to the extent such representations
and warranties expressly relate to an earlier date (in which case such
representations and warranties were true and correct in all material respects as
of the earlier date), and (ii) no Default or Event of Default has occurred and
is continuing.
SECTION 3. Effectiveness. This Amendment shall become
effective as of the date set forth above on the date on which the following
conditions are satisfied:
(a) the Administrative Agent (or its counsel) shall have
received from each of Holdings, the Borrower and the Required Lenders a
counterpart of this Amendment signed on behalf of such party; and
(b) the Administrative Agent shall have received all fees and
other invoiced amounts required to be reimbursed by any Loan Party
under the Credit Agreement.
SECTION 4. Effect of Amendment. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect, the rights and remedies of the
Lenders, the Issuing Bank, Collateral Agent or the Administrative Agent under
the Credit Agreement or any other Loan Document, and shall not 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, all
of which are ratified and affirmed in all respects and shall continue in full
force and effect. Nothing herein shall be deemed to entitle Holdings or the
Borrower to a consent to, or a waiver, amendment, modification or other change
of, any of the terms, conditions, obligations, covenants or agreements contained
in the Credit Agreement or any other Loan Document in similar or different
circumstances.
SECTION 5. Counterparts. This Amendment may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which
4
shall constitute an original, but all of which when taken together shall
constitute a single contract. Delivery of an executed counterpart of a signature
page of this Amendment by telecopy shall be as effective as delivery of a
manually executed counterpart of this Amendment.
SECTION 6. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Headings. Section headings used herein are for
convenience of reference only, are not part of this Amendment and shall not
affect the construction of, or be taken into consideration in interpreting, this
Amendment.
5
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
WRIGHT MEDICAL GROUP, INC.,
by /s/ JOHN BAKEWELL
------------------------------------
Name: John Bakewell
Title: CFO & EVP
WRIGHT MEDICAL TECHNOLOGY, INC.,
by /s/ JASON P. HOOD
------------------------------------
Name: Jason P. Hood, Vice President
Title: General Counsel and Secretary
JPMORGAN CHASE BANK, N.A.,
as a Lender and as Administrative Agent,
by /s/ STEPHANIE PARKER
------------------------------------
Name: Stephanie Parker
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 4 TO
THE WRIGHT MEDICAL TECHNOLOGY, INC.
CREDIT AGREEMENT DATED AS OF
AUGUST 1, 2001
Name of Lender: Bank of America, N.A.
-----------------------------------
by /s/ ELIZABETH L. KNOX
-----------------------------------
Name: Elizabeth L. Knox
Title: SVP
SIGNATURE PAGE TO
AMENDMENT NO. 4 TO
THE WRIGHT MEDICAL TECHNOLOGY, INC.
CREDIT AGREEMENT DATED AS OF
AUGUST 1, 2001
CREDIT SUISSE FIRST BOSTON
Name of Lender: acting through its Cayman Islands Branch
by /s/ PAUL L. COLON
----------------------------------------
Name: Paul L. Colon
Title: Director
by /s/ KARIM BLASETTI
----------------------------------------
Name: Karim Blasetti
Title: Associate
SIGNATURE PAGE TO
AMENDMENT NO. 4 TO
THE WRIGHT MEDICAL TECHNOLOGY, INC.
CREDIT AGREEMENT DATED AS OF
AUGUST 1, 2001
Name of Lender: SunTrust Bank
-----------------------------------
by /s/ W. BROOKS HUBBARD
-----------------------------------
Name: W. Brooks Hubbard
Title: Director
SIGNATURE PAGE TO
AMENDMENT NO. 4 TO
THE WRIGHT MEDICAL TECHNOLOGY, INC.
CREDIT AGREEMENT DATED AS OF
AUGUST 1, 2001
Name of Lender: US Bank
-------------------------------------
by /s/ RUSSELL ROGERS
-------------------------------------
Name: Russell Rogers
Title: Vice President