Exhibit 10.5
SIXTH AMENDMENT TO CREDIT
AGREEMENT,
PLEDGE AMENDMENT TO GUARANTY
AND SECURITY AGREEMENT
AND WAIVER
THIS SIXTH AMENDMENT TO CREDIT
AGREEMENT, PLEDGE AMENDMENT TO GUARANTY AND SECURITY AGREEMENT AND
WAIVER (“ Amendment ”) is entered into as of
June 30, 2011, by and among CryoLife, Inc., a Florida
corporation (“ CrvoLife ”), AuraZyme
Pharmaceuticals, Inc., a Florida corporation (“
AuraZyme ”), CryoLife International, Inc., a Florida
corporation (“ International ”), Cardiogenesis
Corporation, a Florida corporation (formerly known as CryoLife
Acquisition Corporation, a Florida corporation) (“
Cardiogenesis ”) (CryoLife, AuraZyme, International
and Cardiogenesis are sometimes referred to herein together as the
“ Borrowers ” and individually as a “
Borrower ”), CryoLife, as Borrower Representative, the
other Credit Parties party hereto, General Electric Capital
Corporation, a Delaware corporation (the “ Agent
”), as administrative agent for the several financial
institutions from time to time party to this Amendment
(collectively, the “ Lenders ” and individually
each a “ Lender ”) and for itself as a Lender
and L/C Issuer, and such Lenders.
RECITALS
A. The Borrowers, the other Credit
Parties signatory thereto, the Lenders signatory thereto from time
to time and Agent are parties to that certain Credit Agreement,
dated as of March 27, 2008 (as amended, supplemented, revised,
restated, replaced or otherwise modified, the “ Credit
Agreement ”). Capitalized terms used in this Amendment
without definition shall have the meanings ascribed to such terms
in the Credit Agreement and the Guaranty and Security Agreement, as
applicable.
B. The Borrowers, the other Grantors
from time to time party thereto, and Agent, as Agent for the
Secured Parties referred to therein, are parties to that certain
Guaranty and Security Agreement, dated as of March 27, 2008
(as amended, supplemented, revised, restated, replaced or otherwise
modified, the “ Guaranty and Security Agreement
”).
C. The Borrowers have requested that
Lenders amend the Credit Agreement in certain respects and Lenders
have agreed to so amend the Credit Agreement, subject to the terms
and conditions hereof.
NOW, THEREFORE, in consideration of
the premises and the mutual covenants hereinafter contained, and
intending to be legally bound, the parties hereto agree as
follows:
A. AMENDMENTS
1. Amendment to
Section 4.12 Section 4.12 of the Credit Agreement is
amended by adding the following sentence to the end of such
Section:
Notwithstanding the foregoing,
landlord, bailee or mortgagee waivers shall not be required with
respect to locations where hospitals and other clients of the
Credit Parties store laser consoles which are rented by such
hospitals or clients from a Credit Party.
2. Amendment to
Section 5.4 Section 5.4 of the Credit Agreement is
amended by deleting the word “and” at the end of clause
(h), replacing the period at the end of clause (i) with
“; and”, and adding the following new clause
(j) to such Section:
(j) Investments by any Credit Party
to or in ValveXchange, Inc., a Delaware corporation, consisting of
(i) up to $3,500,000 of preferred Stock and
(ii) advances, loans and extensions of credit at any time
outstanding of up to $2,500,000.
3. Amendment to
Section 6.3 Section 6.3 of the Credit Agreement is
amended by reducing from $20,000,000 to 17,500,000 the minimum
Adjusted EBITDA requirement set forth therein for June 30,
2011; provided, that the requirement for each Fiscal Quarter
thereafter shall remain unchanged at $20,000,000.
4. Amendment to
Section 11.1 Section 11.1 of the Credit Agreement is
amended by replacing the definition of “Revolving Termination
Date” in its entirety with the following:
“Revolving Termination
Date” means the earlier to occur of: (a) August 31,
2011; and (b) the date on which the Aggregate Revolving Loan
Commitment shall terminate in accordance with the provisions of
this Agreement.
B. PLEDGE
AMENDMENT
Pursuant to Section 8.6 of the
Guaranty and Security Agreement, Cardiogenesis hereby agrees that
the information set forth in Annex 1 is hereby added to the
information set forth in Schedules 1 through 6 to the
Guaranty and Security Agreement and that this Amendment may be
attached to the Guaranty and Security Agreement and that the
Pledged Collateral listed on Annex 1 to this Amendment
shall be and become part of the Collateral referred to in the
Guaranty and Security Agreement and shall secure all Secured
Obligations.
C. WAIVER
The Agent and Lenders hereby waive
the requirement set forth under Section 4.13(b) of the Credit
Agreement that the Credit Parties cause CGCP Corp., a Delaware
corporation (“ CGCP ”) and Compleat, Inc., a
California corporation (“ Compleat ”) to become
Borrowers under the Credit Agreement, to cross-guaranty the
Obligations and to grant to the Agent, for the benefit of the
Secured Parties, a security interest in all of CGCP’s and
Compleat’s Property to secure such guaranty; provided, that
no later than 60 days after the date hereof the Credit Parties
shall have caused CGCP and Compleat to be dissolved and evidence of
the same shall have been delivered to the Agent.
2
D. CONDITIONS TO EFFECTIVENESS
Notwithstanding any other provision
of this Amendment and without affecting in any manner the rights of
the Lenders hereunder, it is understood and agreed that this
Amendment shall not become effective, and the Borrower shall have
no rights under this Amendment, until Agent shall have received
(a) duly executed signature pages to this Amendment from the
Lenders, Borrowers, L/C Issuer, Agent and each Credit Party and
(b) an amendment fee in the amount of $10,000, and (c) a
certificate of the secretary or other officer of each Credit Party
in charge of maintaining books and records of such Credit Party
certifying as to (i) the names and signatures of each officer
of such Credit Party authorized to execute and deliver any Loan
Document, (ii) the Organization Documents of such Credit Party
attached to such certificate are complete and correct copies of
such Organization Documents as in effect on the date of such
certification and (iii) the resolutions of such Credit
Party’s board of directors or other appropriate governing
body approving and authorizing the execution, delivery and
performance of this Amendment.
E. REPRESENTATIONS
Each Credit Party hereby represents
and warrants to Lenders, L/C Issuer and Agent that:
1. The execution, delivery and
performance by such Credit Party of this Amendment (a) are
within such Credit Party’s power; (b) have been duly
authorized by all necessary corporate, limited liability company or
limited partnership action; (c)&nb
