LIMITED WAIVER TO AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT
10.47
LIMITED
WAIVER
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS LIMITED WAIVER TO AMENDED AND
RESTATED CREDIT AGREEMENT, dated as of August 4, 2010 (this “Waiver”), is made
among SYMMETRY MEDICAL
INC., a Delaware corporation (the “Borrower”), certain
Subsidiaries of the Borrower party hereto as Subsidiary Guarantors, and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION (as
successor by merger to Wachovia Bank, National Association, “▇▇▇▇▇ Fargo”), as
administrative agent for the Lenders under the Credit Agreement referenced below
(in such capacity, the “Administrative
Agent”).
RECITALS
A. The
Borrower, the Subsidiary Guarantors, the Lenders, the Administrative Agent and
certain other agents are parties to an Amended and Restated Credit Agreement,
dated as of June 13, 2006 (the “Existing Credit
Agreement” and, as previously amended and as further amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
providing for the availability of certain credit facilities to the Borrower upon
the terms and conditions set forth therein. Capitalized terms used
herein without definition shall have the meanings given to them in the Credit
Agreement.
B. The
Borrower has notified the Administrative Agent and the Lenders that (i) it
failed to meet the minimum Fixed Charge Coverage Ratio required by Section 7.3
of the Credit Agreement for the second fiscal quarter of 2010 and (ii) based
upon its current estimates, it may not be able to meet the minimum Fixed Charge
Coverage Ratio required by Section 7.3 of the Credit Agreement for the third
fiscal quarter of 2010 (collectively, the “Fixed Charge Coverage Ratio
Default”). In addition, the Borrower has notified the
Administrative Agent and the Lenders that, for each of the second and third
fiscal quarters of 2010, it will exceed the maximum amount of investments
permitted to be made in Foreign Subsidiaries pursuant to Section 8.5(xi) (the
“Foreign Investments
Default” and, together with the Fixed Charge Coverage Ratio Default, the
“Specified Events of
Default”).
C. The
Borrower has requested that the Required Lenders waive the Specified Events of
Default. The Administrative Agent and the Lenders have agreed to
waive the Specified Events of Default in accordance with, and subject to, the
terms and conditions set forth herein.
STATEMENT
OF AGREEMENT
NOW, THEREFORE, in
consideration of the foregoing and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
LIMITED
WAIVER
Based
upon the representations and warranties contained herein, the Administrative
Agent and the Required Lenders hereby (i) waive the Fixed Charge Coverage Ratio
Default, but only to the extent that the Borrower maintains a Fixed Charge
Coverage Ratio of at least (A) 0.95 to 1.0 for the second fiscal quarter of 2010
and (B) 1.0 to 1.0 for the third fiscal quarter of 2010 and (ii) waive the
Foreign Investments Default, but only to the extent that the aggregate amount of
Investments in the Borrower’s Foreign Subsidiaries, as of the end of each of the
second and third fiscal quarters of 2010, shall not exceed
$15,000,000. This Waiver is limited as specified and shall not
constitute or be deemed to constitute an amendment, modification or waiver of
any provision of the Credit Agreement or a waiver of any Default or Event of
Default, except as expressly set forth herein.
.1 REPRESENTATIONS
AND WARRANTIES
To induce
the Administrative Agent (on behalf of itself and the Required Lenders) to enter
into this Waiver, each of the Borrower and the Subsidiary Guarantors represents
and warrants as follows:
.1 Representations and
Warranties. After giving effect to this Waiver, each of the
representations and warranties of the Borrower and its Subsidiaries contained in
the Credit Agreement and in the other Credit Documents is true and correct on
and as of the date hereof with the same effect as if made on and as of the date
hereof (except as permitted pursuant to Section 5.24) of the Credit Agreement
and except to the extent any such representation or warranty is expressly stated
to have been made as of a specific date, in which case such representation or
warranty is true and correct as of such date).
.2 No
Default. After giving effect to this Waiver, no Default or
Event of Default has occurred and is continuing.
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.1 EFFECTIVENESS
.1 Conditions to
Effectiveness. This Waiver shall become effective as of the
date hereof upon the satisfaction of the following conditions
precedent:
.A The
Administrative Agent shall have duly executed counterparts of this Waiver from
each party hereto either signed on behalf of such party or written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page to this Agreement) that such party has
signed a counterpart of this Waiver; and
.B The
Borrower shall have paid to the Administrative Agent, for its own account and
the account of each approving Lender, all fees and expenses due in accordance
with the consummation of this Waiver, including without limitation the fees and
expenses required by Section 4.1.3 hereof, and all other fees and expenses
required to have been paid under the Credit Agreement on or prior to the
effectiveness of this Waiver.
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.1 AFFIRMATION
OF OBLIGATIONS
.1 Affirmation of Borrower and
Subsidiary Guarantors. Each of the Borrower and each of the
Subsidiary Guarantors that guaranty any or all of the Obligations under the
Existing Credit Agreement hereby approves and consents to the transactions
contemplated by this Waiver and agrees that its obligations under the Existing
Credit Agreement and the other Credit Documents to which it is a party shall not
be diminished as a result of the execution of this Waiver. This
acknowledgement by each of the Borrower and each such Subsidiary Guarantor is
made and delivered to induce the Lenders to enter into this Waiver, and each of
the Borrower and each such Subsidiary Guarantor acknowledges that the Lenders
would not enter into this Waiver in the absence of the acknowledgements
contained herein.
.2 Liens. Each
of the Borrower and each of the Subsidiary Guarantors party to the Existing
Credit Agreement hereby ratifies and confirms the grant of a security interest
in and Lien on the Collateral contained in the Security Documents to which each
is a party that were executed in connection with the Existing Credit Agreement,
which security interest and Lien shall continue in full force and effect without
interruption, and shall constitute the single grant of a security interest and
Lien.
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.1 MISCELLANEOUS
.1 Credit
Documents. The parties hereto acknowledge and agree that this
Waiver is a Credit Document for all purposes under the Credit Agreement and the
other Security Documents.
.2 Governing
Law. This Waiver shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
.3 Expenses. The
Borrower agrees, on demand (i) to pay all reasonable fees and expenses of
counsel to the Administrative Agent, and (ii) to reimburse the Administrative
Agent for all reasonable out-of-pocket costs and expenses, in each case, in
connection with the preparation, negotiation, execution and delivery of this
Waiver.
.4 Severability. To
the extent any provision of this Waiver is prohibited by or invalid under the
applicable law of any jurisdiction, such provision shall be ineffective only to
the extent of such prohibition or invalidity and only in any such jurisdiction,
without prohibiting or invalidating such provision in any other jurisdiction or
the remaining provisions of this Waiver in any jurisdiction.
.5 Successors and
Assigns. This Waiver shall be binding upon, inure to the
benefit of and be enforceable by the respective successors and permitted assigns
of the parties hereto.
.6 Construction. The
headings of the various sections and subsections of this Waiver have been
inserted for convenience only and shall not in any way affect the meaning or
construction of any of the provisions hereof.
.7 Counterparts;
Effectiveness. This Waiver may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. This Waiver
shall become effective upon the execution and delivery of a counterpart hereof
by each of the parties hereto. A facsimile of a counterpart executed
by a party shall be acceptable temporary evidence of the execution by that party
of that counterpart.
IN WITNESS WHEREOF, the
parties hereto have caused this Waiver to be executed by their duly authorized
officers as of the date first above written.
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BORROWER:
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By:
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▇▇▇▇
▇. ▇▇▇▇
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Chief
Financial Officer
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SUBSIDIARY GUARANTORS:
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▇▇▇▇▇
MEDICAL INC.
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By:
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▇▇▇▇
▇. ▇▇▇▇
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Vice
President
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SYMMETRY
MEDICAL EVEREST LLC
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By: Symmetry
Medical USA Inc., its Sole Member
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By:
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▇▇▇▇
▇. ▇▇▇▇
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Chief
Financial Officer
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TNCO,
INC.
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By:
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▇▇▇▇
▇. ▇▇▇▇
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Vice
President
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SPECIALTY
SURGICAL INSTRUMENTATION, INC.
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By:
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▇▇▇▇
▇. ▇▇▇▇
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Vice
President
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UCA,
LLC
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By: Symmetry
Medical USA, Inc., its Sole Member
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By:
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▇▇▇▇
▇. ▇▇▇▇
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Senior
Vice President
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SYMMETRY
MEDICAL SSI REAL ESTATE LLC
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By: Symmetry
Medical USA, Inc., its Sole Member
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By:
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▇▇▇▇
▇. ▇▇▇▇
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Senior
Vice President
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SYMMETRY
MEDICAL USA INC.
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By:
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▇▇▇▇
▇. ▇▇▇▇
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Chief
Financial Officer
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SYMMETRY
MEDICAL INTERNATIONAL INC.
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By:
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▇▇▇▇
▇. ▇▇▇▇
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Chief
Financial Officer
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METTIS
GROUP INC
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By:
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▇▇▇▇
▇. ▇▇▇▇
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Chief
Financial Officer
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ULTREXX,
INC.
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By:
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▇▇▇▇
▇. ▇▇▇▇
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Chief
Financial Officer
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JET
ENGINEERING, INC.
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By:
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▇▇▇▇
▇. ▇▇▇▇
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Chief
Financial Officer
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SMA
REAL ESTATE, LLC
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By: Symmetry
Medical USA Inc., its Sole Member
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By:
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▇▇▇▇
▇. ▇▇▇▇
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Chief
Financial Officer
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SYMMETRY
MEDICAL NEW BEDFORD, LLC
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By: TNCO,
Inc., Sole Member
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By:
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▇▇▇▇
▇. ▇▇▇▇
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Vice
President
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SYMMETRY
NEW BEDFORD REAL ESTATE, LLC
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By: TNCO,
Inc., Sole Member
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By:
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▇▇▇▇
▇. ▇▇▇▇
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Vice
President
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▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as
Administrative Agent and on behalf of the Required Lenders pursuant to written authorization |
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By:
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