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Exhibit
10.84
INDEMNITY, SUBROGATION AND
CONTRIBUTION AGREEMENT
THIS INDEMNITY,
SUBROGATION and CONTRIBUTION AGREEMENT is dated as of
June 13, 2008, among EXACTECH, INC. , a Florida
corporation (the “ Borrower ”), EACH
SUBSIDIARY LISTED ON SCHEDULE I HERETO (collectively, the
“Guarantors”), SUNTRUST BANK , a Georgia banking
corporation, as administrative agent (in such capacity, the “
Administrative Agent ”) for the Lenders (as defined in
the Credit Agreement referred to below).
Reference is made to
(a) the Revolving Credit Agreement dated as of June 13,
2008 (as amended, supplemented or otherwise modified from time to
time, the “Credit Agreement”), among the Borrower, the
lenders from time to time party thereto (the “Lenders”)
and SunTrust Bank, as Administrative Agent and swingline lender,
and (b) the Subsidiary Guaranty Agreement dated as
June 13, 2008, among the Guarantors and the Administrative
Agent (as amended, supplemented or otherwise modified from time to
time, the “ Guarantee Agreement ”). Capitalized
terms used herein and not defined herein shall have the meanings
assigned to such terms in the Credit Agreement.
The Lenders have agreed to
make Loans to the Borrower pursuant to, and upon the terms and
subject to the conditions specified in, the Credit Agreement. The
Guarantors have guaranteed such Loans and the other Obligations (as
defined in the Guarantee Agreement) of the Borrower under the
Credit Agreement pursuant to the Guarantee Agreement. The
obligations of the Lenders to make Loans are conditioned on, among
other things, the execution and delivery by the Borrower and the
Guarantors of an agreement in the form hereof.
Accordingly, the Borrower,
each Guarantor and the Administrative Agent agree as
follows:
SECTION 1. Indemnity and
Subrogation . In addition to all such rights of indemnity and
subrogation as the Guarantors may have under applicable law (but
subject to Section 3), the Borrower agrees that (a) in
the event a payment shall be made by any Guarantor under the
Guarantee Agreement, the Borrower shall indemnify such Guarantor
for the full amount of such payment and such Guarantor shall be
subrogated to the rights of the person to whom such payment shall
have been made to the extent of such payment .
SECTION 2. Contribution
and Subrogation . Each Guarantor (a “ Contributing
Guarantor ”) agrees (subject to Section 3) that, in
the event a payment shall be made by any other Guarantor under the
Guarantee Agreement and such other Guarantor (the “
Claiming Guarantor ”) shall not have been fully
indemnified by the Borrower as provided in Section 1, the
Contributing Guarantor shall indemnify the Claiming Guarantor in an
amount equal to the amount of such payment, in each case multiplied
by a fraction of which the numerator shall be the net worth of the
Contributing Guarantor on the date hereof and the denominator shall
be the aggregate net worth of all the Guarantors on the date hereof
(or, in the case of any Guarantor becoming a party hereto pursuant
to Section 12, the date of the Supplement hereto executed and
delivered by such Guarantor). Any Contributing Guarantor making any
payment to a Claiming Guarantor pursuant to this Section 2
shall be subrogated to the rights of such Claiming Guarantor under
Section 1 to the extent of such payment.
Annex I-1
SECTION 3.
Subordination . Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantors under
Sections 1 and 2 and all other rights of indemnity, contribution or
subrogation under applicable law or otherwise shall be fully
subordinated to the indefeasible payment in full in cash of the
Obligations. No failure on the part of the Borrower or any
Guarantor to make the payments required under applicable law or
otherwise shall in any respect limit the obligations and
liabilities of any Guarantor with respect to its obligations
hereunder, and each Guarantor shall remain liable for the full
amount of the obligations of such Guarantor hereunder.
SECTION 4. Termination
. This Agreement shall survive and be in full force and effect so
long as any Obligation is outstanding and has not been indefeasibly
paid in full in cash, and so long as any of the Commitments under
the Credit Agreement have not been terminated, and shall continue
to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded
or must otherwise be restored by any Lender or any Guarantor upon
the bankruptcy or reorganization of the Borrower, a
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