Exhibit 10.28
EXECUTION COPY
$400,000,000
364-DAY CREDIT AGREEMENT
among
ZIMMER HOLDINGS, INC.,
ZIMMER, INC.,
THE BORROWING SUBSIDIARIES,
THE LENDERS NAMED HEREIN,
and
JPMORGAN CHASE BANK, as Administrative Agent,
Dated as of June 12, 2003
Credit Suisse First Boston, J. P. Morgan Securities Inc.
and Banc of America Securities LLC,
as Joint Lead Arrangers and Joint Bookrunners
Credit Suisse First Boston and Bank of America, N.A.
as Co-Syndication Agents
TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Defined Terms .............................................................. 1
SECTION 1.02. Classification of Loans and Borrowings ..................................... 22
SECTION 1.03. Terms Generally ............................................................ 22
SECTION 1.04. Accounting Terms, GAAP ..................................................... 22
ARTICLE II
Amount and Terms of the Commitments
SECTION 2.01. Commitments ................................................................ 23
SECTION 2.02. Revolving Loans and Borrowings ............................................. 23
SECTION 2.03. Requests for Revolving Borrowings .......................................... 24
SECTION 2.04. Borrowing Subsidiaries ..................................................... 25
ARTICLE III
Competitive Bid Loans
SECTION 3.01. Competitive Bid Procedure .................................................. 25
ARTICLE IV
General Provisions Applicable to Loans
SECTION 4.01. Funding of Borrowings ...................................................... 27
SECTION 4.02. Interest Elections ......................................................... 28
SECTION 4.03. Termination and Reduction of Commitments ................................... 29
SECTION 4.04. Repayment of Loans; Evidence of Debt ....................................... 30
SECTION 4.05. Prepayment of Loans ........................................................ 31
SECTION 4.06. Fees ....................................................................... 32
SECTION 4.07. Interest ................................................................... 33
SECTION 4.08. Alternate Rate of Interest ................................................. 34
SECTION 4.09. Increased Costs ............................................................ 34
SECTION 4.10. Break Funding Payments ..................................................... 35
SECTION 4.11. Taxes ...................................................................... 36
SECTION 4.12. Payments Generally; Pro Rata Treatment; Sharing of Setoffs ................. 39
SECTION 4.13. Mitigation Obligations; Replacement of Lenders ............................. 40
ARTICLE V
Representations and Warranties
SECTION 5.01. Organization; Powers ...................................................... 41
SECTION 5.02. Authorization ............................................................. 41
SECTION 5.03. Enforceability ............................................................ 42
SECTION 5.04. Governmental Approvals .................................................... 42
SECTION 5.05. Financial Statements; No Material Adverse Effect .......................... 42
SECTION 5.06. Litigation, Compliance with Laws .......................................... 43
SECTION 5.07. Federal Reserve Regulations ............................................... 43
SECTION 5.08. Taxes ..................................................................... 43
SECTION 5.09. Employee Benefit Plans .................................................... 43
SECTION 5.10. Environmental and Safety Matters .......................................... 44
SECTION 5.11. Properties ................................................................ 44
SECTION 5.12. Investment and Holding Company Status ..................................... 44
</Table>
ARTICLE VI
Conditions
SECTION 6.01. Effective Date ............................................................ 44
SECTION 6.02. Conditions to Offer Loans ................................................. 45
SECTION 6.03. Conditions to All Other Extensions of Credit .............................. 47
SECTION 6.04. Initial Borrowing by Each Borrowing Subsidiary ............................ 47
</Table>
ARTICLE VII
Affirmative Covenants
SECTION 7.01. Existence ................................................................. 47
SECTION 7.02. Business and Properties ................................................... 47
SECTION 7.03. Financial Statements, Reports, Etc ........................................ 48
SECTION 7.04. Insurance ................................................................. 49
SECTION 7.05. Obligations and Taxes ..................................................... 49
SECTION 7.06. Litigation and Other Notices .............................................. 49
SECTION 7.07. Books and Records ......................................................... 49
SECTION 7.08. Subsidiary Guarantor ...................................................... 50
SECTION 7.09. Use of Proceeds ........................................................... 50
SECTION 7.10. Completion of Acquisition ................................................. 50
SECTION 7.11. Termination of Existing Centerpulse Credit Agreement ...................... 50
ii
ARTICLE VIII
Negative Covenants
SECTION 8.01. Consolidations, Mergers, and Sales of Assets ............................ 50
SECTION 8.02. Liens ................................................................... 51
SECTION 8.03. Limitation on Sale and Leaseback Transactions ........................... 53
SECTION 8.04. Financial Condition Covenants ........................................... 53
SECTION 8.05. Indebtedness ............................................................ 53
SECTION 8.06. Transactions with Affiliates ............................................ 53
SECTION 8.07. Restricted Payments ..................................................... 53
SECTION 8.08. Investments ............................................................. 54
ARTICLE IX
Events of Default
ARTICLE X
The Administrative Agent
ARTICLE XI
Miscellaneous
SECTION 11.01. Notices .................................................................. 59
SECTION 11.02. Survival of Agreement .................................................... 60
SECTION 11.03. Binding Effect ........................................................... 60
SECTION 11.04. Successors and Assigns ................................................... 60
SECTION 11.05. Expenses, Indemnity ...................................................... 64
SECTION 11.06. Applicable Law ........................................................... 64
SECTION 11.07. Waivers, Amendment ....................................................... 65
SECTION 11.08. Entire Agreement ......................................................... 65
SECTION 11.09. Severability ............................................................. 66
SECTION 11.10. Counterparts ............................................................. 66
SECTION 11.11. Headings ................................................................. 66
SECTION 11.12. Right of Setoff .......................................................... 66
SECTION 11.13. Jurisdiction: Consent to Service of Process .............................. 66
SECTION 11.14. Waiver of Jury Trial ..................................................... 67
SECTION 11.15. Conversion of Currencies ................................................. 67
SECTION 11.16. Guaranty ................................................................. 68
SECTION 11.17. Confidentiality .......................................................... 70
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SCHEDULES:
Schedule 1.01(a) Centerpulse Offer Conditions Precedent
Schedule 1.01(b) InCentive Offer Conditions Precedent
Schedule 2.01 Commitments
Schedule 8.02 Existing Liens
Schedule 8.06 Transactions with Affiliates
EXHIBITS:
Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Notice of Competitive Bid Request
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid Accept/Reject Letter
Exhibit A-5 Form of Borrowing Request
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Opinion of Dewey Ballantine LLP
Exhibit D Form of Administrative Questionnaire
Exhibit E Form of Borrowing Subsidiary Agreement
Exhibit F Form of Borrowing Subsidiary Termination
iv
CREDIT AGREEMENT (the "Agreement") dated as of
June 12, 2003, among ZIMMER HOLDINGS, INC., a Delaware
corporation (the "Company"), ZIMMER, INC., a Delaware
corporation ("Zimmer"), the BORROWING SUBSIDIARIES (as
defined herein), the LENDERS (as defined herein), and
JPMORGAN CHASE BANK, a New York banking corporation, as
administrative agent for the Lenders (in such capacity,
the "Administrative Agent").
Pursuant to the Centerpulse Offer (such term and each other capitalized
term used but not defined herein having the meaning assigned to it in Article
I), the Company has offered to purchase each outstanding Centerpulse Share for
consideration equal to (a) CHF 120 in cash (the "Centerpulse Cash
Consideration") and (b) 3.68 newly issued shares of Company Stock. Pursuant to
the InCentive Offer, the Company has offered to purchase each outstanding
InCentive Share for Swiss Francs (the "InCentive Cash Consideration") and newly
issued shares of Company Stock, the exact amount of which will be based on a
formula and will be based upon, among other things, the number of Centerpulse
Shares held by InCentive and the net value of other assets remaining at
InCentive on the last day of the InCentive Offer. The aggregate amount of the
Cash Consideration payable in connection with the Offers is approximately CHF
1,429,117,560. In connection with the Offers, and to provide a portion of the
financing therefor, the Company and the Borrowers have entered into this
Agreement and the Revolving Credit and Term Loan Agreement.
The Borrowers have requested that the Lenders, on the terms and subject to
the conditions herein set forth (i) extend credit to the Borrowers in the form
of Revolving Loans at any time and from time to time prior to the Maturity Date
in an aggregate principal amount not in excess of $400,000,000 at any time
outstanding and (ii) provide a procedure pursuant to which the Borrowers may
invite the Lenders to bid on an uncommitted basis on short-term borrowings by
the Borrowers. The proceeds of the Loans made on the Initial Funding Date are to
be used solely by the Borrowers (i) to pay a portion of the Cash Consideration
for Shares purchased pursuant to the Offers, (ii) to refinance Indebtedness of
the Company and Centerpulse and their respective subsidiaries and (iii) to pay
fees and expenses related to the Transactions. The proceeds of the Loans (other
than the Loans used for the purposes specified in the immediately preceding
sentence) made to the Borrowers shall be used for general corporate purposes.
The Lenders are willing to extend such credit on the terms and subject to the
conditions herein set forth.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
2
"ABR" when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Acquisition" shall mean the consummation of the Offers and the purchase
of Shares pursuant thereto, and all related transactions.
"Additional Acceptance Period" shall have the meaning ascribed to that
term in SESTA.
"Adjusted Eurocurrency Rate" shall mean, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum equal to (i) the
applicable Eurocurrency Rate in effect for such Interest Period divided by (ii)
one minus the Eurocurrency Reserve Requirements.
"Administrative Agent" shall mean JPMCB, together with its affiliates (it
being understood that any notices required to be delivered under this Agreement
to the Administrative Agent need not be delivered to such affiliates), as
administrative agent for the Lenders under this Agreement and the other Loan
Documents, and any successor thereto appointed pursuant to Article X.
"Administrative Fees" shall have the meaning assigned to such term in
Section 4.06(b).
"Administrative Questionnaire" shall mean an administrative questionnaire
delivered by a Lender pursuant to Section 11.04 in the form of Exhibit D.
"Advance Agent" shall mean JPMCB, as competitive advance facility agent.
"Affiliate" shall mean, when used with respect to a specified Person,
another Person that directly, or indirectly, Controls or is Controlled by or is
under common Control with the Person specified.
"Alternate Base Rate" shall mean for any day, a rate per annum equal to
the greater of (a) the rate of interest per annum publicly announced from time
to time by JPMCB as its base rate in effect at its principal office in New York
City and (b) 1/2 of one percent above the Federal Funds Effective Rate. If for
any reason JPMCB shall have determined (which determination shall be conclusive
absent manifest error) that it is unable to ascertain the Federal Funds
Effective Rate specified in clause (b) of the first sentence of this definition,
for any reason, including, without limitation, the inability or failure of JPMCB
to obtain sufficient quotations in accordance with the terms hereof, the
Alternate Base Rate shall be determined without regard to clause (b) of the
first sentence of this definition until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate shall be
effective on the effective date of any change in such rate.
"Applicable Margin" shall mean, for each Loan, the applicable rate per
annum determined pursuant to the Pricing Grid.
3
"Applicable Percentage" shall mean, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitments. If
the Commitments have terminated or expired, "Applicable Percentage" shall mean,
with respect to any Lender, the percentage of the aggregate outstanding
principal amount of the Revolving Credit Exposures and Competitive Loans
represented by the aggregate outstanding principal amount of such Lender's
Revolving Credit Exposure and Competitive Loans.
"Arrangers" shall mean CSFB, J.P. Morgan Securities Inc. and Banc of
America Securities LLC.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee in the form of Exhibit B, or such other
form as shall be approved by the Administrative Agent.
"Availability Period" shall mean the period from and including the
Effective Date to (but excluding) the earlier of the Termination Date and the
date of termination of the Commitments.
"Bank of America" shall mean Bank of America, N.A.
"Basis Point" shall mean 1/100th of 1%.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States of America.
"Board of Directors" shall mean either the board of directors of the
Company or any duly authorized committee thereof or any committee of officers of
the Company acting pursuant to authority granted by the board of directors of
the Company or any committee of such board.
"Borrower" shall mean the Company, Zimmer or any Borrowing Subsidiary.
"Borrower Obligations" shall mean the due and punctual payment of (i) the
principal of and interest on any Loans made by the Lenders to the Borrowers
pursuant to this Agreement, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise and (ii)
all other monetary obligations, including fees, costs, expenses and indemnities
(including the obligations described in Section 2.04) of the Borrowers to the
Lenders under this Agreement and the other Loan Documents.
"Borrowing" shall mean (a) Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurocurrency Loans,
as to which a single Interest Period is in effect or (b) a Competitive Loan or
group of Competitive Loans of the same Type made on the same date and as to
which a single Interest Period is in effect.
"Borrowing Request" shall mean a request by any Borrower for a Borrowing
in accordance with Section 2.03.
4
"Borrowing Subsidiary" shall mean any Domestic Wholly Owned Subsidiary of
the Company designated as a Borrowing Subsidiary by the Company pursuant to
Section 2.04.
"Borrowing Subsidiary Agreement" shall mean a Borrowing Subsidiary
Agreement substantially in the form of Exhibit E.
"Borrowing Subsidiary Termination" shall mean a Borrowing Subsidiary
Termination substantially in the form of Exhibit F.
"Business Day" shall mean any day (other than a day which is a Saturday,
Sunday or legal holiday in the State of New York) on which banks are open for
business in New York City; provided, however, that, when used in connection with
a Eurocurrency Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Cash Consideration" shall mean the Centerpulse Cash Consideration and the
InCentive Cash Consideration.
"Capital Lease Obligations" of any Person, shall mean the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Cash Equivalents" shall mean (a) marketable direct obligations issued by,
or unconditionally guaranteed or insured by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition; (b) certificates of deposit, time deposits, eurodollar time
deposits, bankers' acceptances or overnight bank deposits having maturities of
six months or less from the date of acquisition issued by any Lender or by any
commercial bank organized under the laws of the United States or any state
thereof whose short-term commercial paper rating at the time of acquisition is
at least B or the equivalent thereof by Fitch IBCA, A-3 or the equivalent
thereof by S&P, or P-3 or the equivalent thereof by Moody's; (c) commercial
paper of an issuer rated at least A-2 or the equivalent thereof at the time of
acquisition by S&P or at least P-2 or the equivalent thereof at the time of
acquisition by Moody's, or carrying an equivalent rating by a nationally
recognized rating agency, if both of the two named rating agencies cease
publishing ratings of commercial paper issuers generally, and maturing within
six months from the date of acquisition; (d) repurchase obligations of any
Lender or of any commercial bank satisfying the requirements of clause (b) of
this definition, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States
government; (e) securities or marketable direct obligations with maturities of
one year or less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or territory or
by any foreign government, the securities of which state, commonwealth,
territory, political subdivision, taxing authority or foreign government (as the
5
case may be) are rated at least A by S&P or A by Moody's; (f) securities with
maturities of six months or less from the date of acquisition backed by standby
letters of credit issued by any Lender or any commercial bank satisfying the
requirements of clause (b) of this definition; or (g) shares of money market
mutual or similar funds which invest exclusively in assets satisfying the
requirements of clauses (a) through (f) of this definition; provided, however,
that, in case of any investment by a Foreign Subsidiary, "Cash Equivalents"
shall also include: (i) certificates of deposit, time deposits, Eurodollar time
deposits, bankers' acceptances or overnight bank deposits having maturities of
six months or less from the date of acquisition issued by any commercial bank
located in the same jurisdiction as such Foreign Subsidiary whose short-term
commercial paper rating at the time of acquisition would meet or exceed those
ratings applicable to a Lender set forth in clause (b) hereof, (ii) direct
obligations of the sovereign nation (or any agency thereof) in which such
Foreign Subsidiary is organized or is conducting business or in obligations
fully and unconditionally guaranteed by such sovereign nation (or any agency
thereof), in each case maturing within one year from the date of acquisition,
(iii) investments of the type and maturity described in clauses (c) through (f)
above of obligors located in the same jurisdiction as such Foreign Subsidiary,
which Investments or obligors (or the parent of any such obligor) have ratings
described in clauses (c) through (f) or equivalent ratings from comparable
foreign rating agencies and (iv) shares of money market mutual or similar funds
which invest exclusively in assets otherwise satisfying the requirements of this
proviso.
"Centerpulse" shall mean Centerpulse AG, a Swiss company.
"Centerpulse Cash Consideration" shall have the meaning set forth in the
preamble.
"Centerpulse Offer" shall mean the offer by the Company to acquire all the
issued and outstanding Centerpulse Shares (including the Depositary Shares)
substantially on the terms and conditions referred to in the Offer Documents, as
amended, supplemented or otherwise modified in accordance with the terms of this
Agreement.
"Centerpulse Offer Announcement Date" shall mean the date the Centerpulse
Offer Prospectuses are made available to the public.
"Centerpulse Offer Prospectuses" shall mean the prospectus published by
the Company in connection with Centerpulse Offer pursuant to SESTA and the
tender offer statement on Schedule TO filed with the SEC by the Company in
connection with the Centerpulse Offer, as amended, supplemented or otherwise
modified in accordance with the terms of this Agreement.
"Centerpulse Offer Conditions Precedent" shall mean the conditions
precedent set forth on Schedule 1.01(a).
"Centerpulse Offer Loan" shall mean any Loan the purpose of which is to
finance, directly or indirectly, the Centerpulse Cash Consideration for the
Centerpulse Shares purchased pursuant to the Centerpulse Offer.
6
"Centerpulse Pre-Announcement" shall mean the pre-announcement published
by the Company on May 20, 2003, in connection with the Centerpulse Offer,
pursuant to Article 22 et seq. of SESTA.
"Centerpulse Shares" shall mean the registered shares, nominal value CHF
30 per share, of Centerpulse.
"Change in Control" shall be deemed to have occurred if (a) any Person or
group of Persons (other than (i) the Company, (ii) any Subsidiary or (iii) any
employee or director benefit plan or stock plan of the Company or a Subsidiary
or any trustee or fiduciary with respect to any such plan when acting in that
capacity or any trust related to any such plan) shall have acquired beneficial
ownership of shares representing more than 20% of the combined voting power
represented by the outstanding Voting Shares of the Company (within the meaning
of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended,
and the applicable rules and regulations thereunder) or (b) during any period of
12 consecutive months, commencing before or after the date of this Agreement,
individuals who on the first day of such period were directors of the Company
(together with any replacement or additional directors who were nominated or
elected by a majority of directors then in office) cease to constitute a
majority of the Board of Directors of the Company.
"Change in Law" shall mean (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 4.09, by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Class" when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Loans or
Competitive Loans.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commitment" shall mean, as to any Lender at any time, its obligation to
make Revolving Loans to the Borrowers in an aggregate amount not to exceed at
any time outstanding the Dollar amount set forth opposite such Lender's name in
Schedule 2.01 under the heading "Commitment", as such amount may be reduced from
time to time pursuant to Section 4.03 and the other applicable provisions
hereof. The initial aggregate amount of the Lenders' Commitments is
$400,000,000.
"Company" shall have the meaning set forth in the preamble.
"Company Stock" shall mean the common stock, $0.01 par value per share, of
the Company, and the associated preferred stock purchase rights.
"Competitive Bid" shall mean an offer by a Lender to make a Competitive
Loan pursuant to Article III.
7
"Competitive Bid Accept/Reject Letter" shall mean a notification made by
the Company pursuant to Section 3.01(d) in the form of Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid, the
Competitive Loan Margin or the Fixed Rate, as applicable, offered by the Lender
making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant to Article
III in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a Borrowing consisting of a Competitive
Loan or concurrent Competitive Loans from the Lender or Lenders whose
Competitive Bids for such Borrowing have been accepted under the bidding
procedure described in Article III.
"Competitive Loan" shall mean a Loan made pursuant to Article III. Each
Competitive Loan shall be a Eurocurrency Competitive Loan or a Fixed Rate Loan.
"Competitive Loan Exposure" shall mean, with respect to any Lender at any
time, the aggregate principal amount of the outstanding Competitive Loans of
such Lender.
"Competitive Loan Margin" shall mean, with respect to any Competitive Loan
bearing interest at a rate based on the Eurocurrency Rate, the marginal rate of
interest, if any, to be added to or subtracted from the Eurocurrency Rate in
order to determine the interest rate applicable to such Loan, as specified by
the Lender making such Loan in its related Competitive Bid.
"Conduit Lender" means any special purpose entity organized and
administered by any Lender for the purpose of making Loans otherwise required to
be made by such Lender and designated by such Lender in a written instrument
subject to the consent of the Company (such consent not to be unreasonably
withheld); provided, that the designation by any Lender of a Conduit Lender
shall not relieve the designating Lender of any of its obligations to fund a
Loan under this Agreement if, for any reason, its Conduit Lender fails to fund
any such Loan, and the designating Lender (and not the Conduit Lender) shall
have the sole right and responsibility to deliver all consents and waivers
required or requested under this Agreement with respect to its Conduit Lender,
and provided, further, that no Conduit Lender shall (a) be entitled to receive
any greater amount pursuant to Section 4.09, 4.10, 4.11 or 11.05 than the
designating Lender would have been entitled to receive in respect of the
extensions of credit made by such Conduit Lender or (b) be deemed to have any
Commitment.
"Consolidated EBITDA" shall mean, for any period, Consolidated Net Income
for such period plus, without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income for such period, the sum
of (a) income tax expense, (b) interest expense, amortization or write-off of
debt discount and debt issuance costs and commissions, discounts and other fees
and charges associated with Debt (including the Loans), (c) depreciation and
amortization expense (plus, to the extent GAAP then includes amounts as such
expense, amounts of such expenses (calculated under the current GAAP) for any
prior portion of such
8
period if not otherwise so included), (d) amortization of intangibles (including
goodwill) and organization costs (e) any extraordinary, unusual or non-recurring
non-cash expenses or losses (including, whether or not otherwise includable as a
separate item in the statement of such Consolidated Net Income for such period,
non-cash losses on sales of assets outside of the ordinary course of business),
(f) one-time integration costs in connection with the Acquisition incurred
during the first 12 months (or 18 months in the case of costs associated with
the closure of manufacturing facilities) after the Initial Funding Date in an
amount in the aggregate not to exceed $200,000,000 and one-time transaction
costs (other than integration costs) in connection with the Acquisition incurred
on or before the Initial Funding Date or during the first three months after the
Initial Funding Date, in each case as set forth in reasonable detail on a
schedule prepared by the Company and delivered to the Lenders with the financial
statements for the relevant period, (g) purchase accounting adjustments
(including inventory step-ups and write-downs of in-process research and
development) in connection with the Acquisition and made within the first 12
months of the Initial Funding Date, (h) any non-cash expenses relating to stock
option exercises (if applicable accounting rules so require) and (i) any other
non-cash charges and minus, to the extent included in the statement of such
Consolidated Net Income for such period, the sum of (a) interest income, (b) any
extraordinary, unusual or non-recurring income or gains (including, whether or
not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, gains on the sales of assets outside of
the ordinary course of business) and (c) any other non-cash income, all as
determined on a consolidated basis. For the purposes of calculating Consolidated
EBITDA for any period of four consecutive fiscal quarters (each, a "Reference
Period") pursuant to any determination of the Consolidated Leverage Ratio, (i)
if at any time during such Reference Period the Company or any Subsidiary shall
have made any Material Disposition, the Consolidated EBITDA for such Reference
Period shall be reduced by an amount equal to the Consolidated EBITDA (if
positive) attributable to the property that is the subject of such Material
Disposition for such Reference Period or increased by an amount equal to the
Consolidated EBITDA (if negative) attributable thereto for such Reference Period
and (ii) if during such Reference Period the Company or any Subsidiary shall
have made a Material Acquisition, Consolidated EBITDA for such Reference Period
shall be calculated after giving pro forma effect thereto as if such Material
Acquisition occurred on the first day of such Reference Period. As used in this
definition, "Material Acquisition" means any acquisition of property or series
of related acquisitions of property that (a) constitutes assets comprising all
or substantially all of an operating unit of a business or constitutes all or
substantially all of the common stock of a Person and (b) involves the payment
of consideration by the Company and its Subsidiaries in excess of $25,000,000;
and "Material Disposition" means any Disposition of property or series of
related Dispositions of property that yields gross proceeds to the Borrower or
any of its Subsidiaries in excess of $25,000,000.
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated Interest
Expense for such period.
"Consolidated Interest Expense" shall mean, for any period, total cash
interest expense (including that attributable to Capital Lease Obligations) of
the Company and its Subsidiaries for such period with respect to all outstanding
Debt of the Company and its Subsidiaries (including all commissions, discounts
and other fees and charges owed with respect
9
to letters of credit and bankers' acceptance financing), minus interest income
on cash equivalent investments.
"Consolidated Leverage Ratio" shall mean, as at the last day of any
period, the ratio of (a) the sum of (i) Consolidated Total Debt plus, to the
extent not included in the definition of Consolidated Total Debt, (ii) the
aggregate amount of financing provided by third-parties in connection with
Permitted Receivables Securitizations on such day to (b) Consolidated EBITDA for
such period.
"Consolidated Net Income" shall mean, for any period, the consolidated net
income (or loss) of the Company and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded, without duplication, (a) the income (or deficit) of any Person accrued
prior to the date it becomes a Subsidiary of the Company or is merged into or
consolidated with the Company or any of its Subsidiaries, (b) the income (or
deficit) of any Person (other than a Subsidiary of the Company) in which the
Company or any of its Subsidiaries has an ownership interest, except to the
extent that any such income is actually received by the Company or such
Subsidiary in the form of dividends or similar distributions and (c) the
undistributed earnings of any Subsidiary of the Company to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
is not at the time permitted by the terms of any Contractual Obligation (other
than under any Loan Document) or Requirement of Law applicable to such
Subsidiary.
"Consolidated Net Tangible Assets" shall mean, with respect to the
Company, the total amount of its assets (less applicable reserves and other
properly deductible items) after deducting (i) all current liabilities
(excluding the amount of those which are by their terms extendable or renewable
at the option of the obligor to a date more than 12 months after the date as of
which the amount is being determined) and (ii) all goodwill, tradenames,
trademarks, patents, unamortized debt discount and expense and other like
intangible assets, all as set forth on the most recent balance sheet of the
Company and its consolidated subsidiaries and determined on a consolidated basis
in accordance with GAAP.
"Consolidated Total Debt" shall mean, at any date, the aggregate stated
balance sheet amount of all Debt of the Company and its Subsidiaries at such
date, determined on a consolidated basis in accordance with GAAP, minus up to
$50,000,000 of cash and cash equivalent investments held in the United States by
the Company and Zimmer and the Subsidiary Guarantors; provided that such cash
and cash equivalent investments are free of any Liens.
"Contractual Obligation" shall mean, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
10
"Credit Party" shall mean any Borrower or any Subsidiary Guarantor.
"CSFB" shall mean Credit Suisse First Boston, a bank organized under the
laws of Switzerland, acting through its Cayman Islands branch.
"Debt" of any Person, shall mean, without duplication, (i) all obligations
of such Person represented by notes, bonds, debentures or similar evidences of
indebtedness; (ii) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services other than, in the case of any
such deferred purchase price, on normal trade terms, (iii) all rental
obligations of such Person as lessee under leases which shall have been or
should be recorded as Capital Lease Obligations, (iv) all indebtedness of such
Person created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (v) all
obligations, contingent or otherwise, of such Person as an account party or
applicant under or in respect of acceptances, letters of credit, surety bonds or
similar arrangements, (vi) the liquidation value of all preferred capital stock
of such Person which is redeemable at the option of the holder thereof or which
may become (by scheduled or mandatory redemption) due within one year of the
Maturity Date, (vii) all Guarantees of such Person in respect of obligations of
the kind referred to in clauses (i) through (vi) above, (viii) all obligations
of the kind referred to in clauses (i) through (vii) above secured by (or for
which the holder of such obligation has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including accounts and
contract rights) owned by the applicable Person, whether or not such Person has
assumed or become liable for the payment of such obligation and (ix) for the
purposes of paragraph (f) of Article IX only, all obligations in respect of
Hedge Agreements. The Debt of any Person shall include Debt of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefore as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Debt expressly provide that such Person is not liable therefor.
"Depositary Shares" shall mean the American Depositary Shares, evidenced
by American Depositary Receipts. Ten American Depositary Shares represent one
Centerpulse Share.
"Default" shall mean any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Designated Obligations" shall mean all obligations of the Credit Parties
with respect to (a) principal of and interest on the Revolving Loans and (b) all
facility fees under Section 4.06 with respect thereto.
"Dollars" or "$" shall mean lawful money of the United States of America.
11
"Domestic Wholly Owned Subsidiary" shall mean a Wholly Owned Subsidiary
that is incorporated or organized under the laws of the United States or any
state or political subdivision thereof.
"Effective Date" shall mean the date on which the conditions specified in
Section 6.01 are satisfied (or waived in accordance with Section 11.07).
"Environmental and Safety Laws" shall mean any and all applicable current
and future treaties, laws (including without limitation common law),
regulations, enforceable requirements, binding determinations, orders, decrees,
judgments, injunctions, permits, approvals, authorizations, licenses,
permissions, or binding agreements issued, promulgated or entered by any
Governmental Authority, relating to the environment, to employee health or
safety as it pertains to the use or handling of, or exposure to, any Hazardous
Substance, to preservation or reclamation of natural resources or to the
management, release or threatened release of any Hazardous Substance, including
without limitation the Hazardous Materials Transportation Act, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976
and the Hazardous and Solid Waste Amendments of 1984, the Federal Water
Pollution Control Act, as amended by the Clean Water Act of 1977, the Clean Air
Act of 1970, as amended, the Toxic Substances Control Act of 1976, the
Occupational Safety and Health Act of 1970, as amended, the Emergency Planning
acid Community Right-to-Know Act of 1986, the Safe Drinking Water Act of 1974,
as amended, any similar or implementing state law, all amendments of any of
them, and any regulations promulgated under any of them.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
or ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Termination Event" shall mean (i) a "Reportable Event" described in
Section 4043 of ERISA and the regulations issued thereunder (other than a
"Reportable Event" not subject to the provision for 30-day notice to the PBGC
under such regulations), or (ii) the withdrawal of the Company or any of its
ERISA Affiliates from a "single employer" Plan during a plan year in which it
was a "substantial employer", both of such terms as defined in Section 4001 (a)
of ERISA, or (iii) the incurrence of liability under Title IV of ERISA with
respect to the termination of a Plan, or (iv) the institution of proceedings to
terminate a Plan by the PBGC or (v) the receipt by the Company or any ERISA
Affiliate of any notice (whether or not written) from the PBGC of any event or
condition which the PBGC asserts is reasonably likely to constitute grounds
under Section 4042 of ERISA to terminate, or to appoint a trustee to administer,
any Plan or (vi) the partial or complete withdrawal of the Company or any ERISA
Affiliate of the Company from, or the Insolvency or Reorganization of, a
Multiemployer Plan as defined in Section 4001(a)(3) of ERISA.
12
"Eurocurrency" when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to a Eurocurrency Rate.
"Eurocurrency Rate" shall mean, with respect to any Eurocurrency Borrowing
for any Interest Period, the rate appearing on Page 3740 or Page 3750, as the
case may be, of Dow Jones Markets (or on any successor or substitute page of
such service, or any successor to or substitute for such service, providing rate
quotations comparable to those currently provided on such page of such service,
as determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to deposits in Dollars in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for deposits
in Dollars with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "Eurocurrency
Rate" with respect to such Eurocurrency Borrowing for such Interest Period shall
be the rate per annum (rounded upwards, if necessary, to the next Basis Point)
equal to the arithmetic average of the rates at which deposits in Dollars
approximately equal in principal amount to such Borrowing and for a maturity
comparable to such Interest Period are offered to the principal London offices
of the Reference Lenders (or, if any Reference Lender does not at the time
maintain a London office, the principal London office of any Affiliate of such
Reference Lender) in immediately available funds in the London interbank market
at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period; provided, however, that, if only two
Reference Lenders notify the Administrative Agent of the rates offered to such
Reference Lenders (or any Affiliates of such Reference Lenders) as aforesaid,
the Eurocurrency Rate with respect to such Eurocurrency Borrowing shall be equal
to the arithmetic average of the rates so offered to such Reference Lenders (or
any such Affiliates).
"Eurocurrency Reserve Requirements" shall mean, with respect to the
Eurocurrency Loans of any Lender for any day, that percentage (expressed as a
decimal) that is in effect on such day, as prescribed by any Governmental
Authority for determining the reserve, liquid asset or similar requirement with
respect to such Eurocurrency Loans for such Lender that is subject to the rules
and regulations of such Governmental Authority.
"Event of Default" shall have the meaning assigned to such term in Article
IX.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Existing Centerpulse Credit Agreement" shall mean the $635,000,000 Senior
Credit Facility Agreement dated as of October 29, 2002, among Centerpulse,
Sulzer Orthopedics Inc., the lenders named therein and UBS Warburg AG.
"Existing Credit Agreement" shall mean the $600,000,000 Three-Year
Competitive Advance and Revolving Credit Facility Agreement dated as of July 31,
2001, as amended, among the Borrowers named therein, the Lenders named therein,
Bristol Myers Squibb Company and JPMorgan Chase Bank (f/k/a The Chase Manhattan
Bank), as General Administrative Agent.
13
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as released on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so released for any day which is a Business Day, the arithmetic
average (rounded upwards, if necessary, to the next 1/100th of 1%), as
determined by the Administrative Agent, of the quotations for the day of such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fee Letter" shall mean the Fee Letter dated May 19, 2003, among the
Company, the Initial Lenders and the Arrangers.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, vice president of finance, controller or
treasurer of such corporation.
"Fixed Rate" shall mean, with respect to any Competitive Loan (other than
a Eurocurrency Competitive Loan), the fixed rate of interest per annum specified
by the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" shall mean a Competitive Loan bearing interest at a
Fixed Rate.
"Foreign Subsidiary" shall mean any Subsidiary that is not organized under
the laws of the United States or any State or political subdivision thereof.
"GAAP" shall mean generally accepted accounting principles in the United
States of America.
"Governmental Authority" shall mean the government of any nation,
including, but not limited to, the United States of America, or any political
subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Debt or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such Debt or
other obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Debt or
other obligation of the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Debt or other obligation
or (d) as an account party in respect of any letter of credit or letter of
guaranty issued to support
14
such Debt or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantor" shall mean the collective reference to the Company and the
Subsidiary Guarantors.
"Hazardous Substances" shall mean any toxic, radioactive, mutagenic,
carcinogenic, noxious, caustic or otherwise hazardous substance, material or
waste, including petroleum, its derivatives, by-products and other hydrocarbons,
including, without limitation, polychlorinated biphenyls ("PCBs"), asbestos or
asbestos-containing material, and any substance, waste or material regulated or
that could reasonably be expected to result in liability under Environmental and
Safety Laws.
"Hedge Agreements" shall mean all interest rate swaps, caps or collar
agreements or similar arrangements dealing with interest rates or currency
exchange rates or the exchange of nominal interest obligations, either generally
or under specific contingencies.
"Inactive Subsidiary" shall mean, at any time, any Subsidiary that (a) has
consolidated assets of less than $50,000 at such time, (b) has not conducted any
business or other operations during the prior 12-month period and (c) has no
outstanding Debt at such time.
"InCentive" shall mean InCentive Capital AG, a Swiss registered investment
company that holds, as of the date hereof through a wholly owned subsidiary,
approximately 18.9% of the Centerpulse Shares.
"InCentive Cash Consideration" shall have the meaning set forth in the
preamble.
"InCentive Offer" shall mean the public tender offer by the Company to
acquire all issued and outstanding InCentive Shares substantially on the terms
and conditions referred to in the Offer Documents, as amended, supplemented or
otherwise modified in accordance with the terms of this Agreement.
"InCentive Offer Announcement Date" shall mean the date the InCentive
Offer Prospectus is made available to the public.
"InCentive Offer Conditions Precedent" shall mean the conditions precedent
set forth on Schedule 1.01(b).
"InCentive Offer Loan" shall mean any Loan the purpose of which is to
finance, directly or indirectly, the InCentive Cash Consideration for the
InCentive Shares pursuant to the InCentive Offer.
"InCentive Offer Prospectus" shall mean the prospectus published by the
Company in connection with the InCentive Offer pursuant to SESTA, as amended,
supplemented or otherwise modified in accordance with the terms of this
Agreement.
15
"InCentive Pre-Announcement" shall mean the pre-announcement published on
May 20, 2003, by the Company in connection with the InCentive Offer, pursuant to
Article 22 et seq. of SESTA.
"InCentive Shares" shall mean the bearer shares, nominal value CHF 20, of
InCentive.
"Initial Funding Date" shall mean the first day on which Borrowings are
advanced to finance the purchase of Shares, pursuant to the Offers.
"Initial Lenders" shall mean JPMCB, CSFB and Bank of America.
"Insolvency" shall mean with respect to any Multiemployer Plan, the
condition that such plan is insolvent within the meaning of Section 4245 of
ERISA.
"Interest Election Request" shall mean a request by a Borrower to convert
or continue a Borrowing in accordance with Section 4.02.
"Interest Payment Date" shall mean (a) with respect to any ABR Loan, the
last day of each March, June, September and December, (b) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period and (c) with
respect to any Fixed Rate Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a Fixed Rate
Borrowing with an Interest Period of more than 90 days' duration (unless
otherwise specified in the applicable Competitive Bid Request), each day prior
to the last day of such Interest Period that occurs at intervals of 90 days'
duration after the first day of such Interest Period, and any other dates that
are specified in the applicable Competitive Bid Request as Interest Payment
Dates with respect to such Borrowing.
"Interest Period" shall mean (a) as to any Eurocurrency Borrowing, the
period commencing on the date of such Borrowing and ending either (x) on the day
that is two weeks thereafter or (y) on the numerically corresponding day in the
calendar month that is 1, 2, 3 or 6 (or, with the consent of all Lenders making
such Loan, 9 or 12) months thereafter, in each case as the applicable Borrower
may elect, and (b) as to any Fixed Rate Borrowing, the period (which shall not
be less than seven days or more than 360 days) commencing on the date of such
Borrowing and ending on the date specified in the applicable Competitive Bid
Request; provided, that (i) if any Interest Period would end on a day other than
a Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurocurrency Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period referred to in clause (a)(y) above that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially
16
shall be the date on which such Borrowing is made and, in the case of a
Revolving Borrowing, thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
"Investment Grade Standing" shall exist at any time when the actual
Ratings are at or above BBB- from S&P and at or above Baa3 from Moody's. If
either of S&P or Moody's shall change its system of classifications after the
date of this Agreement, Investment Grade Standing shall exist at any time when
the actual Rating is at or above the new Rating which most closely corresponds
to the above-specified level under the previous rating system.
"JPMCB" shall mean JPMorgan Chase Bank, a New York banking corporation.
"Lenders" shall mean (a) the financial institutions listed on Schedule
2.01 (other than any such financial institution that has ceased to be a party
hereto, pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance; provided, that unless the context requires otherwise, each reference
herein to the Lenders shall be deemed to include any Conduit Lender.
"Lien" shall mean any mortgage, lien, pledge, encumbrance, charge or
security interest.
"Loan Documents" shall mean this Agreement, each Borrowing Subsidiary
Agreement, each Borrowing Subsidiary Termination and each promissory note held
by a Lender pursuant to Section 4.04(e).
"Loans" shall mean the loans made by the Lenders to the Borrowers pursuant
to this Agreement.
"Major Breach" shall mean a material breach of a covenant set forth in
Section 8.01, 8.02 or 8.05.
"Major Default" shall mean an event of the type described in (i) paragraph
(b), (c), (g), (h) or (l) of Article IX or (ii) paragraph (d) of Article IX, to
the extent the event referred to therein constitutes a "Major Breach."
"Major Representations" shall mean the representations and warranties set
forth in Section 5.01, 5.02, 5.03 and 5.04 hereto.
"Margin Regulations" shall mean Regulations T, U and X of the Board as
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Material Adverse Effect" shall mean a material adverse effect on the
business, operations, properties or financial condition of the Company and its
consolidated Subsidiaries, taken as a whole.
17
"Maturity Date" shall mean the Termination Date, unless the Maturity
Date is extended pursuant to Section 4.03(d), in which case "Maturity Date"
shall mean the first anniversary of the Termination Date.
"Moody's" shall mean Moody's Investors Service, Inc. or any successor
thereto.
"Net Cash Proceeds" shall mean (a) in the case of a Permitted
Receivables Securitization, the gross cash proceeds obtained from third-party
financing sources net of attorneys' fees, investment banking fees, accountants'
fees, underwriting discounts and commissions and other customary fees and
expenses actually incurred in connection therewith and (b) in the case of a
Permitted Securities Issuance, the gross cash proceeds received from such
issuance or incurrence, net of attorneys' fees, investment banking fees,
accountants' fees, underwriting discounts and commissions and other customary
fees and expenses actually incurred in connection therewith.
"Notice of Competitive Bid Request" shall mean a notification made
pursuant to Article III in the form of Exhibit A-2.
"Offers" shall mean the Centerpulse Offer and the InCentive Offer.
"Offer Documents" shall mean the Pre-Announcements, the Centerpulse
Offer Prospectuses and the InCentive Offer Prospectus.
"Offer Loan" shall mean a Centerpulse Offer Loan or an InCentive Offer
Loan.
"Offer Termination Date" shall mean the earliest of (a) the latest date
upon which the Centerpulse Offer or the InCentive Offer lapses, unsuccessfully
terminates or is withdrawn, (b) the date falling 120 Swiss Stock Exchange
Trading Days after the later of (i) the Centerpulse Offer Announcement Date and
(ii) the InCentive Offer Announcement Date, (c) the date falling 40 Swiss Stock
Exchange Trading Days after the close of the later of (i) the Additional
Acceptance Period for the Centerpulse Offer and (ii) the Additional Acceptance
Period for the InCentive Offer, (d) August 1, 2003, unless on or before such
date, the Centerpulse Offer Announcement Date, or InCentive Offer Announcement
Date shall have occurred, and (e) the date falling 180 days after the Effective
Date.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Permitted Debt" shall mean (i) Debt of any Subsidiary to any Credit
Party, (ii) Guarantees by any Subsidiary of Debt of any Credit Party (other than
the Company) and Guarantees by the Company of any Debt of any Subsidiary, (iii)
any Debt incurred pursuant to Sale and Leaseback Transactions permitted under
Section 8.03, (iv) Debt of any Subsidiary as an account party in respect of
trade letters of credit, to the extent that such letters of credit are not drawn
upon, (v) Debt assumed in connection with any Investment permitted under Section
8.08, (vi) Debt secured by any Lien permitted pursuant to Section 8.02 (b) or
(q), (vii) Debt consisting of guarantees of loans made to officers, directors or
employees of any Subsidiary, (viii) unsecured trade accounts payable and other
unsecured current Debt incurred in the ordinary
18
course of business and not more than 120 days past due (but excluding any Debt
for borrowed money), (ix) any Permitted Receivables Securitization, (x) any
Permitted Securities Issuance, (xi) Debt with respect to surety, appeal and
performance bonds obtained by any Subsidiary in the ordinary course of business,
(xii) Debt incurred under the Revolving Credit and Term Loan Agreement; and
(xiii) any replacement, renewal, refinancing or extension of any Debt referenced
above that does not exceed the aggregate principal amount (plus associated fees
and expenses) of the Debt being replaced, renewed, refinanced or extended
(except that accrued and unpaid interest not delinquent in accordance with its
terms may be part of any refinancing pursuant to this clause) and that otherwise
complies with this Agreement.
"Permitted Receivables Securitization" shall mean the incurrence of
Debt in respect of any receivables securitization of the Company or any
Subsidiary, provided that the aggregate principal amount of all Permitted
Receivables Securitizations outstanding at any time shall not exceed
$200,000,000.
"Permitted Securities Issuance" shall mean the issuance or incurrence
by the Company of any Debt for borrowed money (which may be guaranteed by one or
more Subsidiary Guarantors) in respect of debt securities issued in a public
offering or a private placement, provided that the aggregate principal amount of
all Permitted Securities Issuances outstanding at any time shall not exceed
$500,000,000, and provided further, that any debt securities (and related
guarantees, if any) issued or incurred pursuant to any Permitted Securities
Issuance shall be subordinated to, or pari passu with, the Loans or Guarantees
thereof.
"Person" shall mean any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) as defined in Section 4001(a)(3) of ERISA, subject to the
provisions of Title IV of ERISA or Section 412 of the Code that is maintained by
the Company or any ERISA Affiliate for current or former employees, or any
beneficiary thereof, of the Company or any ERISA Affiliate.
"Pre-Announcements" shall mean the Centerpulse Pre-Announcement and the
InCentive Pre-Announcement.
"Pricing Grid" shall mean the Facility Fee and Applicable Margin
Pricing Grid set forth below.
S&P/MOODY'S APPLICABLE APPLICABLE
RATING EQUIVALENT MARGIN FOR MARGIN FOR
OF THE COMPANY'S EUROCURRENCY ABR
SENIOR UNSECURED FACILITY FEE REVOLVING REVOLVING
NON-CREDIT ENHANCED (IN BASIS LOANS (IN LOANS (IN
LONG-TERM DEBT POINTS) BASIS POINTS) BASIS POINTS)
Higher than
BBB+/Baa1 7.5 30.0 0.0
BBB+/Baa1 or 10.0 40.0 0.0
19
BBB/Baa1 or
BBB+/Baa2
BBB/Baa2 or
BBB-/Baa2 or
BBB/Baa3 12.5 50.0 0.0
BBB-/Baa3 15.0 85.0 0.0
BBB-/Ba1 or
BB+/Baa3 20.0 130.0 30.0
BB+/Ba1 or
lower or unrated 20.0 155.0 55.0
The higher Rating will determine the Facility Fee and Applicable Margin
unless the S&P and Moody's Ratings are more than one level apart, in which case
the Rating one level above the lower Rating will be determinative. In the event
that the Company's senior unsecured long-term debt is rated by only one of S&P
and Moody's, then that single Rating shall be determinative. The Company hereby
agrees that at all times it shall maintain a Rating from either S&P or Moody's.
Each change in a Rating by a Rating Agency shall be effective on the date such
change is announced by such Rating Agency.
The Applicable Margin for the Loans shall be increased by 25.0 Basis
Points for each day that (i) the sum of (a) the Revolving Credit Exposures, (b)
the Competitive Loan Exposures and (c) the aggregate principal amount of the
loans (other than Term Loans) outstanding under the Revolving Credit and Term
Loan Agreement exceed 50% of the sum of (x) the total Commitments (or, if the
Term Loan Conversion Option has been exercised, the aggregate outstanding
principal amount of the Loans outstanding) and (y) the total revolving
commitments under the Revolving Credit and Term Loan Agreement and (ii) the
Company has an Investment Grade Standing.
In addition to any increase in the Applicable Margins required by the
preceding paragraph, for each day after the effectiveness of the Term Loan
Conversion Option the Applicable Margin for the Loans shall be increased by 12.5
Basis Points if the Ratings shall be in the three highest categories in the
Pricing Grid above, and by 25.0 Basis Points at all other times.
"Rating Agencies" shall mean Moody's and S&P.
"Ratings" shall mean the ratings from time to time established by the
Rating Agencies for senior, unsecured, non-credit-enhanced long-term debt of the
Company.
"Reference Lenders" shall mean CSFB, JPMCB and Bank of America.
"Register" shall have the meaning set forth in Section 11.04(d).
"Reorganization" shall mean with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Required Lenders" shall mean, at any time, Lenders having Revolving
Credit Exposures and unused Commitments representing at least 51% of the sum of
the Revolving
20
Credit Exposures and unused Commitments at such time; provided that, for
purposes of declaring the Loans to be due and payable pursuant to Article IX,
and for all purposes after the loans become due and payable pursuant to Article
IX or the Commitments shall have expired or terminated, the Competitive Loan
Exposures of the Lenders shall be included in their respective Revolving Credit
Exposures in determining the Required Lenders.
"Revolving Credit and Term Loan Agreement" shall mean the Revolving
Credit and Term Loan Agreement dated as of the date of this Agreement, among the
Company, the Borrowers, the lenders party from time to time thereto and the
Administrative Agents.
"Revolving Credit Exposure" shall mean, as at any date of determination
with respect to any Lender, an amount equal to the aggregate unpaid principal
amount of such Lender's Revolving Loans on such date, including, Revolving
Credit Exposure in respect of Revolving Loans for which the Maturity Date has
been extended following the exercise of the Term Loan Conversion Option.
"Revolving Loans" shall have the meaning set forth in Section 2.01.
"Sale and Leaseback Transaction" shall mean any arrangement with any
Person pursuant to which the Company or any Subsidiary leases any property that
has been or is to be sold or transferred by the Company or the Subsidiary to
such Person, other than (i) temporary leases for a term, including renewals at
the option of the lessee, of not more than three years, (ii) leases between the
Company and a Subsidiary or between Subsidiaries, (iii) leases of property
executed by the time of, or within 12 months after the latest of, the
acquisition, the completion of construction or improvement, or the commencement
of commercial operation, of such property and (iv) arrangements pursuant to any
provision of law with an effect similar to that under former Section 168(f)(8)
of the Internal Revenue Code of 1954.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. or any successor rating agency.
"SEC" shall mean the Securities and Exchange Commission.
"SESTA" shall mean the Swiss Federal Act on Stock Exchanges and
Securities Trading.
"Shares" shall mean the Centerpulse Shares and the InCentive Shares.
"subsidiary" shall mean, with respect to any Person (the "parent") at
any date, (a) for purposes of Sections 8.03 and 8.06 only, any Person the
majority of the outstanding Voting Stock (or equivalent voting securities of any
Person which is not a corporation) of which is owned, directly or indirectly, by
the parent or one or more subsidiaries of the parent of such Person and (b) for
all other purposes under this Agreement, any corporation, limited liability
company, partnership, association or other entity the accounts of which would be
consolidated with those of the parent in the parent's consolidated financial
statements if such financial statements were prepared in accordance with GAAP as
of such date, as well as any other corporation, limited liability company,
partnership, association or other entity of which securities
21
or other ownership interests representing more than 50% of the equity or more
than 50% of the ordinary voting power or, in the case of a partnership, more
than 50% of the general partnership interests are, as of such date, owned,
controlled or held.
"Subsidiary" shall mean a subsidiary of the Company.
"Subsidiary Guarantor" shall mean each Domestic Wholly Owned Subsidiary
that has executed a counterpart of this Agreement and has become a guarantor of
the Borrower Obligations.
"Swiss Francs" or "CHF" shall mean the lawful money of Switzerland.
"Swiss Stock Exchange Trading Day" shall mean any "Exchange Day"
pursuant to Section 4.3 Paragraph 1-3 or the "SWX Swiss Exchange General
Conditions" on which the SWX Swiss Exchange is open for transactions or
contemplated in SESTA.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority and all liabilities with respect thereto.
"Term Loans" shall have the meaning assigned to such term in the
Revolving Credit and Term Loan Agreement.
"Term Loan Conversion Option" shall have the meaning set forth in
Section 4.03(d).
"Termination Date" shall mean June 10, 2004.
"Transactions" shall mean the making of the Offers, the consummation of
the Acquisition and the transactions contemplated in connection therewith,
including the execution and delivery by the Credit Parties of this Agreement
(or, in the case of the Borrowing Subsidiaries, the Borrowing Subsidiary
Agreements) and the Revolving Credit and Term Loan Agreement, the performance by
the Credit Parties of their obligations hereunder and thereunder, the borrowings
made or to be made hereunder and thereunder and the use of the proceeds thereof.
"Type" when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, "Rate" shall include the
Eurocurrency Rate, the Alternate Base Rate and the Fixed Rate.
"Value" shall mean, with respect to a Sale and Leaseback Transaction,
an amount equal to the present value of the lease payments with respect to the
term of the lease (reduced by the amount of rental obligations of any sublessee
of all or part of the same property) remaining on the date as of which the
amount is being determined, without regard to any renewal or extension options
contained in the lease, discounted at an interest rate determined by the
22
Company at the time of the consummation of such Sale and Leaseback Transaction
as long as such interest rate is customary for leases of such type.
"Voting Stock" shall mean, as applied to the stock of any corporation,
stock of any class or classes (however designated) having by the terms thereof
ordinary voting power to elect a majority of the members of the board of
directors (or other governing body) of such corporation other than stock having
such power only by reason of the happening of a contingency.
"Wholly Owned Subsidiary" of any Person, a subsidiary of such Person of
which securities (except for directors' qualifying shares) or other ownership
interests representing 100% of the equity are, at the time any determination is
being made, owned by such Person or one or more wholly owned subsidiaries of
such Person or by such Person and one or more wholly owned subsidiaries of such
Person.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type
(e.g., a "Eurocurrency Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof' and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms, GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided,
however, that if the Company notifies the Administrative Agent that the Company
wishes to amend any covenant in Article VIII or any related definition or other
financial term used herein to eliminate the effect of any change in GAAP
occurring after the date of this Agreement on the operation of such covenant (or
if the
23
Administrative Agent notifies the Company that the Required Lenders wish to
amend Article VIII or any related definition or other financial term used herein
for such purpose), then the Company's compliance with such covenant shall be
determined on the basis of GAAP in effect immediately before the relevant change
in GAAP became effective, until either such notice is withdrawn or such covenant
is amended in a manner satisfactory to the Company and the Required Lenders.
ARTICLE II
Amount and Terms of the Commitments
SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees to make revolving loans ("Revolving Loans") to
the Borrowers from time to time during the Availability Period in Dollars in an
aggregate principal amount that will not result in (i) such Lender's Revolving
Credit Exposure exceeding such Lender's Commitment, (ii) the sum of the total
Revolving Credit Exposures exceeding the total Commitments or (iii) the sum of
the total Revolving Credit Exposures plus the total Competitive Loan Exposures
exceeding the total Commitments. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrowers may borrow, prepay and
reborrow Revolving Loans. Revolving Loans repaid or prepaid on or after the
Termination Date may not be reborrowed.
SECTION 2.02. Revolving Loans and Borrowings. (a) Each Revolving Loan
shall be made as part of a Borrowing consisting of Revolving Loans of the same
Type made by the Lenders ratably in accordance with their respective
Commitments. Each Competitive Loan shall be made in accordance with the
procedures set forth in Section 3.01.
(b) The failure of any Lender to make any Loan required to be made by
it shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments and Competitive Bids of the Lenders are several and no
Lender shall be responsible for any other Lender's failure to make such Loans as
required.
(c) Subject to Section 4.08, (i) Each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the Company (on its own
behalf or on behalf of any other applicable Borrower) may request in accordance
herewith and (ii) each Competitive Borrowing shall be comprised entirely of
Eurocurrency Loans or Fixed Rate Loans as the Company (on its own behalf or on
behalf of any other Borrower) may request in accordance herewith. Each Lender at
its option may make any Eurocurrency Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any exercise
of such option shall not affect the obligation of any Borrower to repay such
Loan in accordance with the terms of this Agreement.
(d) At the commencement of each Interest Period for any Eurocurrency
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Borrowing is made, such
24
Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $1,000,000; provided that an ABR Borrowing may be
in an aggregate amount that is equal to the entire unused balance of the total
Commitments. Each Competitive Borrowing shall be in an aggregate amount that is
an integral multiple of $1,000,000 and not less than $5,000,000. Borrowings of
more than one Type and Class may be outstanding at the same time; provided that
there shall not at any time be more than 10 Eurocurrency Revolving Borrowings
outstanding.
(e) Notwithstanding any other provision of this Agreement, the Company
(on its own behalf or on behalf of any other Borrower) shall not be entitled to
request, or to elect to convert or continue, any Revolving Borrowing if the
Interest Period requested with respect thereto would end after the Maturity Date
or to request any Competitive Borrowing if the Interest Period requested with
respect thereto would end after the Termination Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving
Borrowing, the applicable Borrower or the Company (on its own behalf or on
behalf of any other Borrower) shall notify the Administrative Agent of such
request by telephone, (a) in the case of a Eurocurrency Borrowing, not later
than 1:30 p.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00
noon, New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in the form of Exhibit A-5. Each such telephonic and written
Borrowing Request shall specify the following information in compliance with
Section 2.02:
(i) if the requested Borrowing is to be an Offer Loan, a statement to
that effect;
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing;
(v) in the case of a Eurocurrency Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by the
definition of the term "Interest Period";
(vi) the location and number of the account of the applicable Borrower
to which funds are to be disbursed, which shall comply with the requirements of
Section 4.01; and
(vii) the applicable Borrower.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurocurrency Borrowing, then the
applicable Borrower or the Company, as the case
25
may be, shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each applicable Lender of
the details thereof and of the amount of such Lender's Loan to be made as part
of the requested Borrowing.
SECTION 2.04. Borrowing Subsidiaries. The Company may designate any
Domestic Wholly Owned Subsidiary of the Company as a Borrowing Subsidiary under
the Commitments. Upon the receipt by the Administrative Agent of a Borrowing
Subsidiary Agreement executed by such a Domestic Wholly Owned Subsidiary and the
Company, such Domestic Wholly Owned Subsidiary shall be a Borrowing Subsidiary
and a party to this Agreement. A Subsidiary shall cease to be a Borrowing
Subsidiary hereunder at such time as no Loans, fees or any other amounts due in
connection therewith pursuant to the terms hereof shall be outstanding to such
Subsidiary and such Subsidiary and the Company shall have executed and delivered
to the Administrative Agent a Borrowing Subsidiary Termination; provided that,
notwithstanding anything herein to the contrary, no Borrowing Subsidiary shall
cease to be a Borrowing Subsidiary solely because it no longer is a Wholly Owned
Subsidiary of the Company so long as such Borrowing Subsidiary and the Company
shall not have executed and delivered to the Administrative Agent a Borrowing
Subsidiary Termination and the Guarantors' guarantee of the Borrower Obligations
of such Borrowing Subsidiary pursuant to Section 11.16 has not been released.
ARTICLE III
Competitive Bid Loans
SECTION 3.01. Competitive Bid Procedure. (a) Subject to the terms and
conditions set forth herein, from time to time during the Availability Period
the Company (on its own behalf or on behalf of any other Borrower) may request
Competitive Bids and the Company (on its own behalf or on behalf of any other
Borrower) may (but shall not have any obligation to) accept Competitive Bids and
borrow Competitive Loans; provided that no Competitive Loan may be requested
that would result in the sum of the total Revolving Credit Exposures plus the
total Competitive Loan Exposures exceeding the total Commitments. To request
Competitive Bids, the Company (on its own behalf or on behalf of any other
Borrower) shall hand deliver or telecopy to the Advance Agent a duly completed
Competitive Bid Request in the form of Exhibit A-1 hereto, to be received by the
Advance Agent, in the case of a Eurocurrency Borrowing, not later than 10:00
a.m., New York City time, four Business Days before the date of the proposed
Borrowing and, in the case of a Fixed Rate Borrowing, not later than 10:00 a.m.,
New York City time, two Business Days before the date of the proposed Borrowing.
A Competitive Bid Request that does not conform substantially to Exhibit A-1 may
be rejected in the Advance Agent's sole discretion, and the Advance Agent shall
promptly notify the Company of such rejection by telecopy. Each Competitive Bid
Request shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
26
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurocurrency Borrowing or a
Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period" and shall end no later than the Termination Date;
(v) the location and number of the account of the Borrower to which
funds are to be disbursed, which shall comply with the requirements of
Section 4.01; and
(vi) the applicable Borrower.
Promptly following receipt of a Competitive Bid Request in accordance
with this Section, the Advance Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to such Borrower in response to a Competitive Bid Request.
Each Competitive Bid by a Lender must be received by the Advance Agent by
telecopy, in the form of Exhibit A-3 hereto, in the case of a Eurocurrency
Competitive Borrowing, not later than 9:30 a.m., New York City time, three
Business Days before the proposed date of such Competitive Borrowing, and in the
case of a Fixed Rate Borrowing, not later than 11:30 a.m., New York City time,
one Business Day before the proposed date of such Competitive Borrowing.
Competitive Bids that do not conform substantially to the format of Exhibit A-3
may be rejected by the Advance Agent, and the Advance Agent shall notify the
applicable Lender as promptly as practicable. Each Competitive Bid shall specify
(i) the principal amount of the Competitive Loan or Loans that the Lender is
willing to make (which shall be a minimum of $5,000,000 and an integral multiple
of $1,000,000 and which may equal the entire principal amount of the Competitive
Borrowing Request by such Borrower), (ii) the Competitive Bid Rate or Rates at
which the Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal
places) and (iii) the Interest Period applicable to each such Loan and the last
day thereof.
(c) The Advance Agent shall promptly notify such Borrower by telecopy
of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, such Borrower may
accept or reject any Competitive Bid. Such Borrower shall notify the Advance
Agent by telephone, confirmed by telecopy in the form of a Competitive Bid
Accept/Reject Letter, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurocurrency Competitive
Borrowing, not later than 2:00 p.m., New York City time, three Business Days
before the date of the proposed Competitive Borrowing, and in the case of a
Fixed Rate Borrowing, not later than 2:00 p.m., New York City time, on the
proposed date of the
27
Competitive Borrowing; provided that (i) the failure of such Borrower to give
such notice shall be deemed to be a rejection of each Competitive Bid, (ii) such
Borrower shall not accept a Competitive Bid made at a particular Competitive Bid
Rate if the Company rejects a Competitive Bid made at a lower Competitive Bid
Rate, (iii) the aggregate amount of the Competitive Bids accepted by such
Borrower shall not exceed the aggregate amount of the requested Competitive
Borrowing specified in the related Competitive Bid Request, (iv) to the extent
necessary to comply with clause (iii) above, such Borrower may accept
Competitive Bids at the same Competitive Bid Rate in part, which acceptance, in
the case of multiple Competitive Bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such Competitive Bid and (v)
except pursuant to clause (iv) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $5,000,000 and an integral multiple of $1,000,000; provided further that if a
Competitive Loan must be in an amount less than $5,000,000 because of the
provisions of clause (iv) above, such Competitive Loan may be for a minimum of
$5,000,000 or any integral multiple of $1,000,000 thereof, and in calculating
the pro rata allocation of acceptances of portions of multiple Competitive Bids
at a particular Competitive Bid Rate pursuant to clause (iv) the amounts shall
be rounded to integral multiples of $1,000,000 in a manner which shall be in the
discretion of such Borrower. A notice given by such Borrower pursuant to this
paragraph (d) shall be irrevocable.
(e) The Advance Agent shall promptly notify each bidding Lender by
telecopy whether or not its Competitive Bid has been accepted (and, if so, the
amount and Competitive Bid Rate so accepted), and each successful bidder will
thereupon become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Advance Agent shall elect to submit a Competitive Bid in its
capacity as a Lender, it shall submit such Competitive Bid directly to the
Company (on its own behalf or on behalf of any other Borrower) at least one
quarter of an hour earlier than the time by which the other Lenders are required
to submit their Competitive Bids to the Advance Agent pursuant to paragraph (b)
of this Section 3.01.
(g) All notices required by this Section 3.01 shall be given in
accordance with Section 11.01.
ARTICLE IV
General Provisions Applicable to Loans
SECTION 4.01. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the account of the Administrative Agent or an
Affiliate thereof, most recently designated by it for such purpose by notice to
the Lenders, by 2:00 p.m., New York City time. The Administrative Agent will
make Loans available to the applicable Borrower by promptly crediting the
amounts so received, in like funds, to an account of such Borrower maintained
with
28
the Administrative Agent in New York City. If a Borrowing shall not occur on
such date because any condition precedent herein specified shall not have been
met, the Administrative Agent shall return the amounts so received to the
respective Lenders.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
4.01 and may, in reliance upon such assumption, make available to such Borrower
a corresponding amount. In such event, if a Lender has not in fact made its
share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the applicable Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to such Borrower to but excluding the date of payment to the Administrative
Agent, at (i) in the case of such Lender, the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation or (ii) in the case of
such Borrower, the interest rate on the applicable Borrowing; provided that no
repayment by such Borrower pursuant to this sentence shall be deemed to be a
prepayment for purposes of Section 4.10. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 4.02. Interest Elections. (a) Each Borrowing initially shall be
of the Type specified in the applicable Borrowing Request and, in the case of a
Eurocurrency Borrowing, shall have an initial Interest Period as specified in
such Borrowing Request. Thereafter, the applicable Borrower or the Company (on
its own behalf or on behalf of any other Borrower) may elect to convert such
Borrowing to a different Type or to continue such Borrowing and, in the case of
a Eurocurrency Borrowing, may elect Interest Periods therefor, all as provided
in this Section. The applicable Borrower or the Company (on its own behalf or on
behalf of any other Borrower) may elect different options with respect to
different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. This Section shall not apply to Competitive Borrowings,
which may not be converted or continued.
(b) To make an election pursuant to this Section, the applicable
Borrower or the Company (on its own behalf or on behalf of any other Borrower)
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the applicable
Borrower or the Company (on its own behalf or on behalf of any other Borrower)
were requesting a Borrowing of the Type resulting from such election to be made
on the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Company or the
Applicable Borrower.
29
(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.03:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or
Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the applicable Borrower or the Company (on
its own behalf or on behalf of any other Borrower) shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each applicable Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
(e) If the Company or the applicable Borrower fails to deliver a timely
Interest Election Request with respect to a Eurocurrency Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such Borrowing is
repaid as provided herein, at the end of such Interest Period such Borrowing
shall be converted to an ABR Borrowing.
SECTION 4.03. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Termination Date.
Notwithstanding the foregoing, all Commitments shall terminate at 5:00 p.m., New
York City time, on the Offer Termination Date if the Initial Funding Date shall
not have occurred by that time.
(b) The Company may at any time terminate, or from time to time reduce,
the Commitments; provided that (i) each reduction of the Commitments shall be in
an amount that is an integral multiple of $1,000,000 and not less than
$3,000,000 and (ii) the Company shall not terminate or reduce the Commitments
if, after giving effect to any concurrent prepayment of the Loans, (i) the
outstanding Revolving Credit Exposure would exceed the Commitments or (ii) the
sum of the Revolving Credit Exposures plus the Competitive Loan Exposures would
exceed the total Commitments.
30
(c) The Company shall notify the Administrative Agent, of any election
to terminate or reduce the Commitments under paragraph (b) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent or an affiliate
thereof shall advise the applicable Lenders of the contents thereof. Each notice
delivered by the Company pursuant to this Section shall be irrevocable; provided
that a notice of termination of any Commitments delivered by the Company may
state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Company (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of any Commitments shall be made ratably
among the applicable Lenders in accordance with their respective applicable
Commitments.
(d) The Company, may by written notice delivered to the Administrative
Agent not less than 20 and not more than 60 days prior to the Termination Date,
extend the Maturity Date with respect to all or any portion of the outstanding
Revolving Loans ("Term Loan Conversion Option") from the Termination Date to a
date no later than the first anniversary of the Termination Date; provided that
(i) no Event of Default shall have occurred and be continuing and (ii) the
representations and warranties of each Credit Party set forth in the Loan
Documents shall be true and correct on and as of the Termination Date, and the
Administrative Agent shall have received, with a counterpart or copy for each
Lender, a certificate signed by the President, a Vice President or a Financial
Officer of the Company confirming the foregoing.
SECTION 4.04. Repayment of Loans; Evidence of Debt. (a) Each of the
Borrowers hereby unconditionally promises to pay to the Administrative Agent for
the account of each Lender (i) on the Maturity Date, the then unpaid principal
amount of the Revolving Loans of such Lender and (ii) the then unpaid principal
amount of each Competitive Loan made by such Lender to such Borrower on the last
day of the Interest Period applicable to such Loan.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of each Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain a Register pursuant to
subsection 11.04(d) and an account for each applicable Lender in which it shall
record (i) the amount of each Loan made hereunder and any promissory note
evidencing such Loan, the Class and Type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from each Borrower to each Lender hereunder and
(iii) the amount of any sum received by the Administrative Agent hereunder for
the account of the Lenders and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to paragraphs (b) and (c) of this Section shall be prima
facie evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Administrative Agent to maintain
such accounts or any error therein shall not in
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any manner affect the obligation of any Borrower to repay the Loans in
accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the applicable Borrower shall
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 11.04) be
represented by one or more promissory notes in such form payable to the order of
the payee named therein (or, if such promissory note is a registered note, to
such payee and its assigns).
SECTION 4.05. Prepayment of Loans. (a) A Borrower shall have the right
at any time and from time to time to prepay any Borrowing in whole or in part,
subject to prior notice in accordance with paragraph (b) of this Section;
provided that no Borrower shall have the right to prepay any Competitive Loan
without the prior consent of the Lender thereof.
(b) A Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any optional or mandatory prepayment hereunder (i) in
the case of prepayment of a Eurocurrency Borrowing, not later than 12:00 noon,
New York City time, three Business Days before the date of prepayment, and (ii)
in the case of prepayment of an ABR Borrowing, not later than 12:00 noon, New
York City time, one Business Day before the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date and the principal
amount of each Borrowing or portion thereof to be prepaid and, in the case of a
mandatory prepayment, a reasonably detailed calculation of the amount of such
prepayment; provided that, if a notice of prepayment is given in connection with
a conditional notice of termination of any Commitments as contemplated by
Section 4.03, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 4.03. Promptly following
receipt of any such notice relating to a Borrowing, the Administrative Agent
shall advise the applicable Lenders of the contents thereof. Each partial
prepayment of any Borrowing shall be in an amount that would be permitted in the
case of an advance of a Borrowing of the same Class and Type as provided in
Section 2.02, except as necessary to apply fully the required amount of a
mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to
the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 4.07.
(c) In the event and on each occasion that the Company or any
Subsidiary receives any Net Cash Proceeds from a Permitted Receivables
Securitization, the Company shall promptly after such Net Cash Proceeds are
received, prepay the Term Loans in an aggregate amount equal to such Net Cash
Proceeds. After the payment in full of all outstanding Term Loans, the aggregate
Revolving Commitments (as defined in the Revolving Credit and Term Loan
Agreement) will be automatically and permanently reduced by the amount of any
Net Cash Proceeds so received (or, following prepayment in full of the Term
Loans, so remaining). Following the reduction in full of the Revolving
Commitments under the Revolving Credit and Term Loan Agreement, the aggregate
Commitments hereunder will be automatically and permanently reduced by the
amount of any Net Cash Proceeds so received (or, following the
32
reduction in full of the Revolving Commitments under the Revolving Credit and
Term Loan Agreement, so remaining).
(d) In the event and on each occasion that the Company or any
Subsidiary receives any Net Cash Proceeds from a Permitted Securities Issuance,
the Company shall promptly after such Net Cash Proceeds are received, prepay the
Term Loans in an aggregate amount equal to such Net Cash Proceeds. After the
payment in full of all outstanding Term Loans, the aggregate Revolving
Commitments (as defined in the Revolving Credit and Term Loan Agreement) will be
automatically and permanently reduced by the amount of any Net Cash Proceeds so
received (or, following prepayment in full of the Term Loans, so remaining) less
the aggregate amount, as of the date of such Permitted Securities Issuance, by
which the Revolving Commitments have been reduced or terminated pursuant to
Section 4.03(b). Following the reduction in full of the Commitments under the
Revolving Credit and Term Loan Agreement, the aggregate Commitments hereunder
will be automatically and permanently reduced by the amount of any Net Cash
Proceeds so received (or, following the reduction in full of the Revolving
Commitments under the Revolving Credit and Term Loan Agreement, so remaining).
(e) If at any time for any reason the sum of the total Revolving Credit
Exposures plus the total Competitive Loan Exposures exceeds the total
Commitments then in effect, the Borrowers shall, as soon as practicable but in
no event later than the Business Day after learning thereof, prepay Revolving
Loans in an aggregate principal amount equal to the amount of such excess.
SECTION 4.06. Fees. (a) The Company agrees to pay to the Administrative
Agent for the account of each Lender a facility fee, which shall accrue at the
facility fee rate set forth in the Pricing Grid from time to time on the daily
amount of the Commitments of such Lender (whether used or unused) and, following
the Termination Date, on the Revolving Credit Exposure of such Lender, during
the period from and including the Effective Date to but excluding the Maturity
Date; provided that, if such Lender continues to have any Revolving Credit
Exposure after the Maturity Date, then such facility fee shall continue to
accrue on the daily amount of such Lender's Revolving Credit Exposure from and
including the Maturity Date to but excluding the date on which such Lender
ceases to have any Revolving Credit Exposure; provided further that, from and
including the Effective Date, to but excluding the Initial Funding Date, for so
long as the Initial Lenders are the only Lenders hereunder, no facility fees
shall accrue or be payable hereunder. Accrued facility fees shall be payable in
arrears on the last day of March, June, September and December of each year, and
on the date on which the Commitments terminate and on the Maturity Date,
commencing on the first such date to occur after the Effective Date; provided
that any facility fees accruing after the Maturity Date shall be payable on
demand. All facility fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(b) The Company agrees to pay to the Administrative Agent, for its own
account, the administrative, auction and other fees separately agreed upon
between the Company and the Administrative Agent (collectively, the
"Administrative Fees").
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(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees and participation fees, to the Lenders. Fees paid
shall not be refundable under any circumstances.
SECTION 4.07. Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate plus the Applicable Margin.
(b) The Loans comprising each Eurocurrency Borrowing shall bear
interest (i) in the case of a Eurocurrency Loan, at the Adjusted Eurocurrency
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Margin or (ii) in the case of a Eurocurrency Competitive Loan, at the Adjusted
Eurocurrency Rate for the Interest Period in effect for such Borrowing plus (or
minus, as applicable) the Competitive Loan Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by any Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and upon termination of the Commitments;
provided that (i) interest accrued pursuant to paragraph (d) of this Section
shall be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of
the Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii)
in the event of any conversion of any Eurocurrency Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be payable
on the effective date of such conversion.
(f) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at time when the Alternate Base Rate is based on clause (a) of the first
sentence of the definition of Alternate Base Rate shall be computed on the basis
of a year of 365 days (or 366 days in a leap year), and in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate or Eurocurrency Rate
shall be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
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SECTION 4.08. Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurocurrency Borrowing:
(a) the Administrative Agent shall have determined (which determination
shall be made in good faith and shall be conclusive absent manifest error) that
adequate and reasonable means do not exist for ascertaining the Eurocurrency
Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders (or, in
the case of a Eurocurrency Competitive Loan, the Lender that is required to make
such Loan) that the Eurocurrency Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (or Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Company (on its
own behalf or on behalf of the applicable Borrower) and the Lenders by telephone
or telecopy as promptly as practicable thereafter and, until the Administrative
Agent notifies the Company (on its own behalf or on behalf of the applicable
Borrower) and the Lenders that the circumstances giving rise to such notice no
longer exist, (i) any Interest Election Request that requests the conversion of
any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Borrowing
shall be ineffective, (ii) if any Borrowing Request requests a Eurocurrency
Borrowing, such Borrowing, shall be made as an ABR Borrowing and (iii) any
request by the Company (on its own behalf or on behalf of any other Borrower) or
any other Borrower for a Eurocurrency Competitive Borrowing shall be
ineffective; provided that (x) if the circumstances giving rise to such notice
do not affect all the Lenders, then requests by the Company for Eurocurrency
Competitive Borrowings may be made to Lenders that are not affected thereby and
(y) if the circumstances giving rise to such notice affect only one Type of
Borrowing, then the other Type of Borrowings shall be permitted.
SECTION 4.09. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except for any such reserve
requirement which is reflected in the Adjusted Eurocurrency Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurocurrency Loans or Fixed Rate
Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) by an amount deemed by such
Lender to be material or to reduce the amount of any sum received or receivable
by such Lender hereunder (whether of principal, interest or otherwise) by an
amount deemed by such Lender to be material, then the applicable Borrower will
pay to such Lender such additional amount or amounts as will compensate such
Lender for such additional costs actually incurred or reduction actually
suffered.
35
(b) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by such Lender to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy) by an amount deemed by such Lender to be material, then from
time to time the applicable Borrower will pay to such Lender such additional
amount or amounts as will compensate such Lender or such Lender's holding
company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company as specified in
paragraph (a) or (b) of this Section and setting forth in reasonable detail the
manner in which such amount or amounts shall have been determined, shall be
delivered to the applicable Borrower and shall be conclusive absent manifest
error. The applicable Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrowers shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 90 days prior to the date that such Lender
notifies such Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 90-day period referred to above shall be
extended to include the period of retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section, a Lender
shall not be entitled to compensation pursuant to this Section in respect of any
Competitive Loan if the Change in Law that would otherwise entitle it to such
compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made. The obligations of the
Borrowers under this Section shall survive the termination of this Agreement and
the payment of the Loans and all other amounts payable hereunder.
SECTION 4.10. Break Funding Payments. In the event of (a) the payment
or prepayment of any principal of any Eurocurrency Loan or Fixed Rate Loan other
than on the last day of an Interest Period applicable thereto (including as a
result of an Event of Default), (b) the conversion of any Eurocurrency Loan
other than on the last day of the Interest Period applicable thereto, (c) the
failure to borrow, convert, continue or prepay any Loan on the date specified in
any notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 4.05(b) and is revoked in accordance therewith), (d) the
failure to borrow any Competitive Loan after accepting the Competitive Bid to
make such Loan or (e) the assignment of any Eurocurrency Loan or Fixed Rate Loan
other than on the last day of the Interest Period applicable thereto as a result
of a request by any Borrower pursuant to Section 4.13, then, in any such event,
the applicable Borrower shall compensate each Lender for the out-of-pocket loss,
cost and expense attributable to such event. In the case of a Eurocurrency Loan,
such loss, cost
36
or expense to any Lender shall be deemed to include an amount determined by such
Lender to be the present value of the excess, if any, of (i) its cost of
obtaining the funds for the Loan being paid, prepaid, refinanced or not borrowed
(assumed to be the Eurocurrency Rate applicable thereto) for the period from the
date of such payment, prepayment, refinancing or failure to borrow or refinance
to the last day of the Interest Period for such Loan (or, in the case of a
failure to borrow or refinance the Interest Period for such Loan which would
have commenced on the date of such failure) over (ii) the amount of interest (as
reasonably determined by such Lender) that would be realized by such Lender in
reemploying the funds so paid, prepaid or not borrowed or refinanced for such
period or Interest Period, as the case may be. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section and setting forth in reasonable detail the manner in
which such amount or amounts shall have been determined shall be delivered to
the applicable Borrower and shall be conclusive absent manifest error. Such
Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof. The obligations of the Borrowers under
this Section shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
SECTION 4.11. Taxes. (a) Any and all payments to the Lenders or the
Administrative Agent hereunder by a Borrower or on behalf of any Borrower shall
be made free and clear of and without deduction for any and all current or
future Taxes or Other Taxes (as defined in Section 4.11(b) below) excluding (i)
Taxes imposed on the Administrative Agent or any Lender (or participant) as a
result of a present or former connection between the Administrative Agent or
such Lender (or participant) and the jurisdiction of the Governmental Authority
imposing such Tax or any political subdivision or taxing authority thereof or
therein (other than as a result of entering into this Agreement, performing any
obligations hereunder, receiving any payments hereunder or enforcing any rights
hereunder) and (ii) any Taxes that are attributable solely to the failure of any
Lender to comply with Section 4.11(g) or 4.11(h) (all such nonexcluded Taxes or
Other Taxes collectively or individually, "Non-Excluded Taxes"). If the relevant
Borrower shall be required to deduct any Non-Excluded Taxes from or in respect
of any sum payable hereunder to any Lender or the Administrative Agent, (i) the
sum payable shall be increased by the amount (an "Additional Amount") necessary
so that after making all required deductions (including deductions applicable to
Additional Amounts payable under this Section 4.11) such Lender or the
Administrative Agent (as the case may be) shall receive an amount equal to the
sum it would have received had no such deductions been made, (ii) the relevant
Borrower shall make such deductions and (iii) the relevant Borrower shall pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) In addition, the relevant Borrower (or the Guarantors, as
applicable) shall pay to the relevant Governmental Authority in accordance with
applicable law any current or future stamp, intangibles or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or any other Loan Document that are
imposed by a Governmental Authority in a jurisdiction in which the relevant
Borrower (or Guarantor, as applicable) is incorporated, organized, managed and
controlled or considered to have its seat or otherwise has a connection (other
than as a result of entering into this Agreement,
37
performing any obligations hereunder, making payments hereunder or enforcing any
rights hereunder ("Other Taxes").
(c) The relevant Borrower (or Guarantor, as applicable) shall indemnify
each Lender (or participant) and the Administrative Agent for the full amount of
Non-Excluded Taxes paid by such Lender (or participant) or the Administrative
Agent, as the case may be, and any liability (including penalties, interest and
expenses (including reasonable attorney's fees and expenses)) arising therefrom
or with respect thereto, whether or not such Non-Excluded Taxes were correctly
or legally asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability prepared by a Lender, or the
Administrative Agent on its behalf and setting forth in reasonable detail the
manner in which such amount shall have been determined, absent manifest error,
shall be final, conclusive and binding for all purposes. Such indemnification
shall be made within 30 days after the date the Lender or the Administrative
Agent, as the case may be, makes written demand therefor, which written demand
shall be made within 60 days of the date such Lender or the Administrative Agent
receives written demand for payment of such Non-Excluded Taxes from the relevant
Governmental Authority.
(d) If a Lender (or participant) or the Administrative Agent receives a
refund, which in its reasonable judgment is in respect of any Non-Excluded Taxes
as to which it has been indemnified by the relevant Borrower or with respect to
which the relevant Borrower has paid Additional Amounts pursuant to this Section
4.11, it shall within 30 days from the date of such receipt pay over such refund
to the relevant Borrower (but only to the extent of indemnity payments made, or
Additional Amounts paid, by the relevant Borrower under this Section 4.11 with
respect to the Non-Excluded Taxes giving rise to such refund), net of all
out-of-pocket expenses of such Lender (or participant) or the Administrative
Agent and without interest (other than interest paid by the relevant
Governmental Authority with respect to such refund); provided, however, that the
relevant Borrower, upon the request of such Lender (or participant) or the
Administrative Agent, agrees to repay the amount paid over to the relevant
Borrower (plus penalties, interest or other charges) to such Lender (or
participant) or the Administrative Agent in the event such Lender (or
participant) or the Administrative Agent is required to repay such refund to
such Governmental Authority.
(e) As soon as practicable after the date of any payment of
Non-Excluded Taxes by the relevant Borrower to the relevant Governmental
Authority, the relevant Borrower will deliver to the Administrative Agent at its
address referred to in Section 11.01, the original or a certified copy of a
receipt issued by such Governmental Authority evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 4.11 shall
survive the payment in full of the principal of and interest on all Loans made
hereunder.
(g) Each Lender (or participant) that is not a United States Person as
defined in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver
to the Company and the Administrative Agent two copies of either (i) United
States Internal Revenue Service Form W-8BEN or W8ECI or any subsequent or
substitute versions thereof or successors thereto or (ii) in the case of a
Non-U.S. Lender claiming exemption from U.S. Federal withholding tax
38
under Section 871 (h) or 881 (c) of the Code with respect to payments of
"portfolio interest," a Form W-8BEN, or any subsequent or substitute versions
thereof or successors thereto (and, if such Non-U.S. Lender delivers a Form
W-8BEN pursuant to this clause (ii), a certificate representing that such
Non-U.S. Lender is not a bank for purposes of Section 881(c)(3)(A) of the Code,
is not a 10 percent shareholder (within the meaning of Section 881(c)(3)(B) of
the Code) of the Company and is not a controlled foreign corporation related to
the Company (within the meaning of Section 881(c)(3)(C) of the Code)), in each
case properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or reduced rate of, U.S. Federal withholding tax on
payments by the Company under this Agreement. Each Lender (or participant) that
is a U.S. Person as defined in Section 7701(a)(30) of the Code shall deliver to
the Company and the applicable Administrative Agent two copies of Internal
Revenue Service Form W-9, or any subsequent or substitute versions thereof or
successors thereto, certifying that such Lender (or participant) is entitled to
a complete exemption from U.S. Federal backup withholding tax on payments made
pursuant to this Agreement. Such forms shall be delivered by each Lender on or
before the date it becomes a party to this Agreement (or, in the case of a
participant, on or before the date such participant becomes a participant
hereunder) and on or before the date, if any, such Lender changes its applicable
lending office by designating a different lending office (a "New Lending
Office"), unless each of the applicable lending office prior to such designation
and the New Lending Office are located within the United States. In addition,
each Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Lender. Notwithstanding any
other provision of this Section 4.11(g), a Lender shall not be required to
deliver any form pursuant to this Section 4.11(g) that such Lender is not
legally able to deliver.
(h) A Lender (or participant) that is entitled to an exemption from or
reduction of non-U.S. withholding tax under the law of the jurisdiction in which
a Borrower (other than the Company) is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall
deliver to such Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law or reasonably requested by such Borrower,
such properly completed and executed documentation prescribed by applicable law
as will permit such payments to be made without withholding or at a reduced
rate, provided that such Lender (or participant) is legally entitled to
complete, execute and deliver such documentation and in such Lender's reasonable
judgment such completion, execution or submission would not materially prejudice
the legal position of such Lender (or participant).
(i) The relevant Borrower shall not be required to indemnify any
Lender, or to pay any Additional Amounts to any Lender, in respect of any
withholding tax pursuant to paragraph (a) or (c) above to the extent that (i)
the obligation to withhold amounts with respect to such withholding tax was in
effect and would apply to amounts payable to such Lender on the date such Lender
became a party to this Agreement (or, in the case of a participant, on the date
such participant became a participant hereunder) or, with respect to payments to
a New Lending Office, the date such Lender designated such New Lending Office
with respect to a Loan or, with respect to payments by a Borrower pursuant to a
Competitive Loan, as of the date the Company accepts a Competitive Bid pursuant
to Section 3.01(d); provided, however, that this clause (i) shall not apply to
any Lender (or participant) if the assignment, participation, transfer or
designation of a New Lending Office was made at the request of the relevant
Borrower; and
39
provided further, however, that this clause (i) shall not apply to
the extent the indemnity payment or Additional Amounts any Lender (or
participant) would be entitled to receive (without regard to this clause (i)) do
not exceed the indemnity payment or Additional Amounts that the Lender (or
participant) making the assignment, participation, transfer or designation of
such New Lending Office would have been entitled to receive in the absence of
such assignment, participation, transfer or designation or (ii) the obligation
to pay such Additional Amounts would not have arisen but for a failure by such
Lender (or participant) to comply with the provisions of paragraph (g) or (h) of
this Section 4.11.
(j) Any Lender (or participant) claiming any indemnity payment or
Additional Amounts payable pursuant to this Section 4.11 shall use reasonable
efforts (consistent with legal and regulatory restrictions) to file any
certificate or document reasonably requested in writing by the relevant Borrower
or to change the jurisdiction of its applicable lending office if the making of
such a filing or change would avoid the need for or reduce the amount of any
such indemnity payment or Additional Amounts that may thereafter accrue and
would not, in the sole determination of such Lender (or participant), be
otherwise disadvantageous to such Lender (or participant).
(k) Nothing contained in this Section 4.11 shall require any Lender (or
participant) or the Administrative Agent to make available any of its tax
returns (or any other information that it deems to be confidential or
proprietary).
SECTION 4.12. Payments Generally; Pro Rata Treatment; Sharing of
Setoffs. (a) Each Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees, or of amounts payable under
Section 4.09, 4.10 or 4.11, or otherwise) prior to 3:00 p.m., New York City time
at the place of payment, on the date when due, in immediately available funds,
without setoff or counterclaim. Any amounts received after such time on any date
may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative Agent at
its office referred to in Section 11.01, or such other location as the
Administrative Agent shall designate from time to time, except that payments
pursuant to Sections 4.09, 4.10 or 4.11 and 11.05 shall be made directly to the
Persons entitled thereto. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment hereunder shall be
due on a day that is not a Business Day, the date for payment shall be extended
to the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, towards payment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.
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(c) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans
and accrued interest thereon than the proportion received by any other Lender
participating in such Revolving Loan, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans of such other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by such Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans; provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by any Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the Company or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). Each Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from a
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that such Borrower will not make
such payment, the Administrative Agent may assume that such Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if such
Borrower has not in fact made such payment, then each of the applicable Lenders
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lenders with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by
it pursuant to Section 4.01(b) or 4.11(d), then the Administrative Agent may, in
its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 4.13. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 4.09, or if any Borrower is
required to pay any Additional Amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 4.11, then such
Lender shall use reasonable efforts to file any certificate or document
requested by the applicable Borrower (consistent with legal and regulatory
41
restrictions), to designate a different lending office for funding or booking
its Loans hereunder or to assign its rights and obligations hereunder to another
of its offices, branches or affiliates, if, in the judgment of such Lender, such
filing, designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 4.09 or 4.11, as the case may be, in the future and (ii)
would not otherwise be disadvantageous to such Lender.
(b) If any Lender requests compensation under Section 4.09, or if any
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 4.11,
or if any Lender defaults in its obligation to fund Loans hereunder, then such
Borrower may, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 11.04), all its interests,
rights and obligations under this Agreement (other than any outstanding
Competitive Loans held by it and any and all rights and interests related
thereto) to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that (i) such
Borrower shall have received the prior written consent of the Administrative
Agent which consent shall not unreasonably be withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
Revolving Loans, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or such Borrower (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 4.09 or payments required to be made
pursuant to Section 4.10, such assignment will result in a reduction in such
compensation or payments.
ARTICLE V
Representations and Warranties
The Company represents and warrants to each of the Lenders and the
Administrative Agent that:
SECTION 5.01. Organization; Powers. Each Credit Party (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted and as
proposed to be conducted and (c) is qualified to do business in every
jurisdiction where such qualification is required, except where the failure so
to qualify would not result in a Material Adverse Effect. Each Credit Party has
the corporate power and authority to execute and deliver this Agreement (or, in
the case of the Borrowing Subsidiaries, the Borrowing Subsidiary Agreements), to
perform its obligations under this Agreement and to borrow hereunder.
SECTION 5.02. Authorization. The Transactions (a) are within each
Credit Party's corporate powers and have been duly authorized by all requisite
corporate action and (b) do not (i) violate (A) any provision of any law,
statute, rule or regulation (including, without limitation, the Margin
Regulations), (B) any provision of the certificate of incorporation or other
42
constitutive documents or by-laws of the Company or any Subsidiary, (C) any
order of any Governmental Authority or (D) any provision of any indenture,
agreement or other instrument to which the Company or any Subsidiary is a party
or by which it or any of its property is or may be bound, (ii) conflict with,
result in a breach of or constitute (alone or with notice or lapse of time or
both) a default under any such indenture, agreement or other instrument or (iii)
result in the creation or imposition of any lien upon any property or assets of
the Company or any Subsidiary other than, in the case of clauses (i)(A), (i)(C),
(i)(D), (ii) and (iii), any such violations, conflicts, breaches, defaults or
liens that, individually or in the aggregate, would not have a Material Adverse
Effect.
SECTION 5.03. Enforceability. This Agreement has been duly executed and
delivered by each of the Borrowers and constitutes, and each other Loan Document
constitutes or, when executed and delivered, will constitute a legal, valid and
binding obligation of each Credit Party thereto, enforceable in accordance with
its terms (subject, as to enforceability, to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity)).
SECTION 5.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or other action by any Governmental Authority is
required in connection with the Transactions except such as have, or on or prior
to the Initial Funding Date will have, been obtained or made and are in full
force and effect or except for the failure of which to obtain could not
reasonably be expected to have a Material Adverse Effect.
SECTION 5.05. Financial Statements; No Material Adverse Effect. (a) The
Company has heretofore furnished to the Administrative Agent and the Lenders its
consolidated balance sheet and statements of income, stockholders' equity and
cash flows (i) as of and for the fiscal year ended December 31, 2002, reported
on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of
and for the fiscal quarter and the portion of the fiscal year ended March 31,
2003, certified by its chief financial officer. Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of the Company and its consolidated Subsidiaries as of
such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.
(b) The Company has heretofore delivered to the Administrative Agent
and the Lenders its unaudited pro forma consolidated balance sheet and
statements of income, stockholders' equity and cash flows as of and for the
12-month period ended March 31, 2003, prepared giving effect to the Transactions
as if they had occurred, with respect to such balance sheet, on such date and,
with respect to such other financial statements, on the first day of the
12-month period ending on such date. Such pro forma financial statements have
been prepared in good faith by the Company, based on assumptions believed by the
Company on the date hereof to be reasonable, are based on the best information
available to the Company as of the date of delivery thereof, accurately reflect
all adjustments required to be made to give effect to the Transactions and
present fairly on a pro forma basis the estimated consolidated financial
position of the Company and its consolidated Subsidiaries as of such date and
for such period,
43
assuming that the Transactions had actually occurred at such date or at the
beginning of such period, as the case may be.
(c) Since December 31, 2002, there has been no material adverse effect
on the business, operations, properties or financial condition of the Company
and its Subsidiaries, taken as a whole.
SECTION 5.06. Litigation, Compliance with Laws. (a) There are no
actions, proceedings or investigations filed or (to the knowledge of the
Company) threatened against the Company or any Subsidiary in any court or before
any Governmental Authority or arbitration board or tribunal which question the
validity or legality of this Agreement, the Transactions or any action taken or
to be taken pursuant to this Agreement and no order or judgment has been issued
or entered restraining or enjoining the Company from the execution, delivery or
performance of this Agreement nor is there any other action, proceeding or
investigation filed or (to the knowledge of the Company) threatened against the
Company or any Subsidiary in any court or before any Governmental Authority or
arbitration board or tribunal as to which there is a reasonable likelihood of an
adverse determination and that, if adversely determined, would be reasonably
likely to result in a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in violation of any law,
rule or regulation, or in default with respect to any judgment, writ, injunction
or decree of any Governmental Authority, where such violation or default would
be reasonably likely to result in a Material Adverse Effect.
SECTION 5.07. Federal Reserve Regulations. No part of the proceeds of
any Loan will be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose which entails a violation of, or
which is inconsistent with, the provisions of the Margin Regulations.
SECTION 5.08. Taxes. The Company and the Subsidiaries have filed or
caused to be filed all Federal and material state, local and foreign Tax returns
which are required to be filed by them, and have paid or caused to be paid all
material Taxes required to have been paid by them, other than any Taxes or
assessments the validity of which is being contested in good faith by
appropriate proceedings, and with respect to which appropriate accounting
reserves have, to the extent required by GAAP, been set aside.
SECTION 5.09. Employee Benefit Plans. The present aggregate value of
accumulated benefit obligations of each Plan and each foreign employee pension
benefit plan required to be funded (based on those assumptions used for
disclosure of such obligations in corporate financial statements in accordance
with GAAP) did not, as of the most recent statements available, exceed the
aggregate value of the assets for each plan by an amount in the aggregate for
all such plans that would reasonably be expected to have a Material Adverse
Effect. Except as would not individually or in the aggregate be reasonably
expected to have a Material Adverse Effect, (a) no ERISA Termination Event has
occurred or (b) each Plan has been established and administered in accordance
with its terms and in compliance with the applicable provisions of ERISA, the
Code and other applicable laws, rules and regulations.
44
SECTION 5.10. Environmental and Safety Matters. Other than exceptions
to any of the following that would not in the aggregate have a Material Adverse
Effect: (a) the Company and the Subsidiaries comply and have complied with all
applicable Environmental and Safety Laws; (b) there are and have been no
Hazardous Substances at any property owned, leased or operated by the Company
now or in the past, or at any other location, that could reasonably be expected
to result in liability of the Company or any Subsidiary under any Environmental
and Safety Law or result in costs to any of them arising out of any
Environmental and Safety Law; (c) there are no past, present, or, to the
knowledge of the Company and the Subsidiaries, anticipated future events,
conditions, circumstances, practices, plans, or legal requirements that could
reasonably be expected to prevent the Company or any of the Subsidiaries from,
or increase the costs to the Company or any of the Subsidiaries of, complying
with applicable Environmental and Safety Laws or obtaining or renewing all
material permits, approvals, authorizations, licenses or permissions required of
any of them pursuant to any such law; and (d) neither the Company nor any of the
Subsidiaries has retained or assumed, by contract or operation of law, any
liability, fixed or contingent, under any Environmental and Safety Law.
SECTION 5.11. Properties. (a) Each of the Company and its Subsidiaries
has good title to, or valid leasehold interests in, all its real and personal
property that are material to the business of the Company and its Subsidiaries
taken as a whole, except for defects in title that could not reasonably be
expected to result in a Material Adverse Effect.
(b) Each of the Company and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property that are material to the business of the Company and its Subsidiaries
taken as a whole, and the use thereof by the Company and its Subsidiaries does
not infringe upon the rights of any other Person, except for any such
infringements that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.12. Investment and Holding Company Status. Neither the
Company nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
ARTICLE VI
Conditions
SECTION 6.01. Effective Date. The effectiveness of this Agreement shall
be subject to the satisfaction of each of the following conditions:
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy
45
transmission of a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, with a counterpart or
copy for each Lender, such documents and certificates as the Administrative
Agent or its counsel may reasonably request relating to the organization,
existence and good standing of each Credit Party, the authorization of the
Transactions and other legal matters relating to the Credit Parties, the Loan
Documents or the Transactions, all in form and substance reasonably satisfactory
to the Administrative Agent and its counsel.
(c) The representations and warranties of each Credit Party set forth
in the Loan Documents shall be true and correct on and as of the Effective Date,
except to the extent such representations and warranties expressly relate to an
earlier or later date and no Default shall have occurred and be continuing, and
the Administrative Agent shall have received, with a counterpart or copy for
each Lender, a certificate signed by the President, a Vice President or a
Financial Officer of the Company confirming the foregoing.
(d) The Administrative Agent shall have received a copy, certified by
the Secretary or an Assistant Secretary of the Company, of each Offer Document,
which shall be consistent with the terms of the Offers set forth in the
Pre-Announcements and shall otherwise be reasonably satisfactory to the Initial
Lenders.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by any Credit Party hereunder or under any Loan
Document.
(f) The Administrative Agent (or its counsel) shall have received a
favorable written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) from Dewey Ballantine LLP, U.S. counsel for the
Borrowers, substantially in the form of Exhibit C and covering such other
matters relating to the Credit Parties, the Loan Documents or the Transactions
as the Administrative Agent or the Lenders shall reasonably request. The Company
hereby requests such counsel to deliver such opinion.
(g) Each Lender shall have received a properly completed and executed
Federal Reserve Form U-1.
The Administrative Agent shall notify the Company and the Lenders of
the Effective Date, and such notice shall be conclusive and binding.
SECTION 6.02. Conditions to Offer Loans. The obligation of each Lender
to make an Offer Loan is subject to the satisfaction of the following
conditions:
(a) The Administrative Agent shall have received a Borrowing Request in
accordance with Section 2.03.
46
(b) The Existing Credit Agreement and all commitments of the lenders
thereunder shall have been or shall simultaneously be terminated, all amounts
outstanding thereunder shall have been or shall simultaneously be paid in full
and the Administrative Agent shall have received evidence satisfactory in form
and substance to it demonstrating such termination and payment.
(c) In the case of a Centerpulse Offer Loan, each of the Centerpulse
Offer Conditions Precedent and, in the case of an InCentive Offer Loan, each of
the InCentive Offer Conditions Precedent, unless waived in writing by the
Required Lenders and each Initial Lender, shall have been satisfied in all
material respects; provided, however, that (i) the Company may increase the
amount of Company Stock to be issued in the Offers without the approval of the
Required Lenders and the Initial Lenders; (ii) the Company may increase the
amount of the Centerpulse Cash Consideration by an amount not to exceed CHF 2.5
per Centerpulse Share (and may make a corresponding increase in the amount of
the InCentive Cash Consideration), in each case without the approval of the
Required Lenders and the Initial Lenders.
(d) The Centerpulse Offer shall have become or been declared wholly
unconditional in all respects, in the case of an InCentive Offer Loan, the
InCentive Offer shall have become or been declared wholly unconditional in all
respects; and Centerpulse Shares or InCentive Shares, as applicable, shall have
been or shall contemporaneously be purchased pursuant to the applicable Offer
and shall have been or shall be paid for contemporaneously with a Borrowing
hereunder.
(e) The applicable conditions precedent with respect to a borrowing to
finance the Centerpulse Offer set forth in the Revolving Credit and Term Loan
Agreement shall have been or shall simultaneously be satisfied or waived in
accordance with the terms thereof, and such agreement shall be in full force and
effect.
(f) The Major Representations shall be true and correct as they relate
to the Borrowers, Centerpulse and InCentive as of the date of such Borrowing,
with the same effect as if made on such date.
(g) At the time of and immediately after giving effect to such
Borrowing, no Major Default shall have occurred and be continuing.
(h) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Initial Funding Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by any Credit Party hereunder or under any
Loan Documents.
(i) In the case of the initial Offer Loan, the Administrative Agent
shall have received, with a counterpart or copy for each Lender, a certificate
signed by the President, a Vice President or a Financial Officer of the Company
confirming, as of the Initial Funding Date, the satisfaction (unless waived by
the Initial Lenders and the Required Lenders) of the conditions specified in
clauses (b), (c), (d), (f) and (g) of this Section.
47
SECTION 6.03. Conditions to All Other Extensions of Credit. The
obligation of each Lender to make a Loan on the occasion of any Borrowing (other
than a Borrowing (i) consisting solely of Offer Loans or (ii) made solely to
refinance outstanding Borrowings that does not increase the aggregate principal
amount of the Loans of any Lender outstanding) is subject to the satisfaction of
the following conditions:
(a) The Administrative Agent shall have received a Borrowing Request in
accordance with Section 2.03.
(b) The Initial Funding Date shall have occurred.
(c) The representations and warranties of each Credit Party set forth
in the Loan Documents shall be true and correct on and as of the date of any
such Borrowing, except to the extent such representations and warranties
expressly relate to an earlier or later date.
(d) At the time of and immediately after giving effect to such
Borrowing, as applicable, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Company on the date thereof as to the matters specified in paragraphs (c)
and (d) of this Section.
SECTION 6.04. Initial Borrowing by Each Borrowing Subsidiary. The
obligation of each Lender to make a Loan on the occasion of the first Borrowing
by each Borrowing Subsidiary is subject to the satisfaction of the condition
that the Administrative Agent (or its counsel) shall have received a Borrowing
Subsidiary Agreement properly executed by such Borrowing Subsidiary and the
Company.
ARTICLE VII
Affirmative Covenants
The Company covenants and agrees with each Lender and the
Administrative Agent that so long as this Agreement shall remain in effect or
the principal of or interest on any Loan or any fees or any other amounts
payable hereunder shall be unpaid, unless the Required Lenders shall otherwise
consent in writing, it will, and will cause each of the Subsidiaries to, on and
after the Effective Date:
SECTION 7.01. Existence. Do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate, partnership and/or
limited liability company existence and its rights and franchises that are
material to the business of the Company and its Subsidiaries as a whole, except
as expressly permitted under Section 8.01 or 8.06 and except, in the case of any
Subsidiary, where the failure to do so would not result in a Material Adverse
Effect.
SECTION 7.02. Business and Properties. Comply in all respects with all
applicable laws, rules, regulations and orders of any Governmental Authority
(including
48
Environmental and Safety Laws and ERISA), whether now in effect or hereafter
enacted except instances that could not, in the aggregate, reasonably be
expected to result in a Material Adverse Effect; and at all times maintain and
preserve all property material to the conduct of the business of the Company and
its Subsidiaries as a whole and keep such property in good repair, working order
and condition and from time to time make, or cause to be made, all needful and
proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may be
properly conducted at all times, except where the failure to do so would not
result in a Material Adverse Effect.
SECTION 7.03. Financial Statements, Reports, Etc. Furnish to the
Administrative Agent for distribution to each Lender:
(a) within 105 days after the end of each fiscal year, its annual
report on Form 10-K as filed with the SEC, including its consolidated balance
sheet and the related consolidated earnings statement showing its consolidated
financial condition as of the close of such fiscal year and the consolidated
results of its operations during such year, all audited by
PricewaterhouseCoopers LLP or other independent certified public accountants of
recognized national standing selected by the Company and accompanied by an
opinion of such accountants to the effect that such consolidated financial
statements fairly present the Company's financial condition and results of
operations on a consolidated basis in accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year, its quarterly report on Form 10-Q as filed with
the SEC, including its unaudited consolidated balance sheet and related
consolidated earnings statement, showing its consolidated financial condition as
of the close of such fiscal quarter and the consolidated results of its
operations during such fiscal quarter and the then elapsed portion of the fiscal
year (and each delivery of such statements shall be deemed a representation that
such statements fairly present the Company's financial condition and results of
operations on a consolidated basis in accordance with GAAP, subject to normal
year-end audit adjustments and the absence of footnotes);
(c) concurrently with any delivery of financial statements under
paragraph (a) or (b) above, a certificate of a Financial Officer (i) certifying
that no Event of Default or Default has occurred or, if such an Event of Default
or Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto and (ii)
demonstrating in reasonable detail calculation of the covenants set forth in
Section 8.04 as of the last day of the period covered by such financial
statements;
(d) promptly after the same become publicly available, copies of all
reports on Form 8-K filed by it with the SEC, or any Governmental Authority
succeeding to any of or all the functions of the SEC, or copies of all reports
distributed to its shareholders, as the case may be;
(e) promptly after the same become publicly available, copies of all
materials filed by it with any other Governmental Authority or stock exchange,
whether domestic or foreign, relating to the Offers; and
49
(f) promptly, from time to time, such other information as any Lender
shall reasonably request through the Administrative Agent, including any
additional information relating to any one-time integration or transaction costs
referred to in clause (f) of the definition of the term "Consolidated EBITDA"
(it being understood that the Company shall not be required to provide any
information or documents which are subject to confidentiality provisions the
nature of which prohibit such disclosure).
Information required to be delivered pursuant to this Section shall be deemed to
have been delivered on the date on which the Company provides notice (reasonably
identifying where the applicable disclosure may be obtained) to the
Administrative Agent that such information has been posted on the Company's
website on the internet at www.zimmer.com, or on the SEC's website on the
internet at www.sec.gov, or at another website identified in such notice and
accessible by the Lenders without charge.
SECTION 7.04. Insurance. Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers (which may
include captive insurers), and maintain such other insurance or self insurance
(including product liability insurance), to such extent and against such risks,
including fire and other risks insured against by extended coverage, as is
customary with companies similarly situated and in the same or similar
businesses.
SECTION 7.05. Obligations and Taxes. Pay and discharge promptly when
due all material taxes, assessments and governmental charges imposed upon it or
upon its income or profits or in respect of its property, in each case before
the same shall become delinquent or in default and before penalties accrue
thereon, unless and to the extent that the same are being contested in good
faith by appropriate proceedings and adequate reserves with respect thereto
shall, to the extent required by GAAP, have been set aside.
SECTION 7.06. Litigation and Other Notices. Give the Administrative
Agent written notice of the following within ten Business Days after any
executive officer of the Company obtains knowledge thereof:
(a) the filing or commencement of any action, suit or proceeding which
the Company reasonably expects to result in a Material Adverse Effect;
(b) any Event of Default or Default, specifying the nature and extent
thereof and the action (if any) which is proposed to be taken with respect
thereto; and
(c) any change in any of the Ratings.
provided, that in each case the Company shall not be required to provide
separate notice of any event disclosed in any report promptly filed with the SEC
if the Company has provided notice to the Administrative Agent in accordance
with Section 7.03 as long as the Company has provided notice reasonably
identifying where the applicable disclosure may be obtained to the
Administrative Agent that such information has been posted.
SECTION 7.07. Books and Records. (a) Keep proper books of record and
account in which full, true and correct entries are made of all material
dealings and transactions
50
in relation to its business and activities and (b) permit any representatives
designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and (in the presence of officers of a Credit Party, whether by
phone or in person) its independent accountants (in each case subject to the
Company's obligations under applicable confidentiality provisions), all at such
reasonable times and as often as reasonably requested, all at the expense of the
applicable Lenders; provided that during the continuation of any Default (x) any
expense of the Lenders in connection with the foregoing shall be for the account
of the Company and (y) Lenders shall be permitted to discuss the affairs,
finances and condition of the Company and its Subsidiaries without officers of
the Credit Parties being present.
SECTION 7.08. Subsidiary Guarantor. Cause each Domestic Wholly Owned
Subsidiary (other than a special purpose subsidiary organized to facilitate a
Permitted Receivables Securitization or an Inactive Subsidiary) to execute and
deliver a counterpart to this Agreement thereby assuming the obligations of a
Subsidiary Guarantor under Section 11.16 on the Effective Date, or, if later,
within 15 Business Days of such Person becoming such a Domestic Wholly Owned
Subsidiary.
SECTION 7.09. Use of Proceeds. All proceeds of the Loans shall be used
for the purposes referred to in the recitals to this Agreement.
SECTION 7.10. Completion of Acquisition. Following the Initial Funding
Date, use its best efforts to complete the acquisition, directly or indirectly,
of all the issued and outstanding Centerpulse Shares as promptly as practicable.
SECTION 7.11. Termination of Existing Centerpulse Credit Agreement. On
or as promptly following the Initial Funding Date as practicable, to cause the
Existing Centerpulse Credit Agreement to be paid in full and terminated and all
Liens, if any, securing the obligations thereunder or under any related
agreements to be released, and to provide evidence reasonably satisfactory in
form and substance to the Administrative Agent demonstrating such termination,
payment and release.
ARTICLE VIII
Negative Covenants
The Company covenants and agrees with each Lender and the
Administrative Agent that so long as this Agreement shall remain in effect or
the principal of or interest on any Loan or any fees or any other amounts
payable hereunder shall be unpaid, unless the Required Lenders shall otherwise
consent in writing, it will not, and will not permit any of the Subsidiaries to,
on and after the Effective Date:
SECTION 8.01. Consolidations, Mergers, and Sales of Assets. (a)
Consolidate or merge with or into any other Person or liquidate, wind up or
dissolve (or suffer any liquidation
51
or dissolution) or (b) sell, or otherwise transfer (in one transaction or a
series of transactions), or permit any Subsidiary to sell, or otherwise transfer
(in one transaction or a series of transactions), all or substantially all of
the assets of the Company and the Subsidiaries, taken as a whole, to any other
Person; provided that (i) the Company may merge or consolidate with another
Person if the Company is the corporation surviving such merger or consolidation,
(ii) a Subsidiary may merge or consolidate with another Person if (A) the
Company is the surviving corporation if the Company is a party to such merger or
consolidation or (B) the survivor of such merger or consolidation (in the event
that it is not the Subsidiary) shall assume all of the payment and performance
obligations of such Subsidiary on terms reasonably satisfactory to the
Administrative Agent and (iii) immediately after giving effect to any such
merger or consolidation, no Default or Event of Default shall have occurred and
be continuing; provided, however, that the foregoing restrictions of this
Section 8.01 shall not apply to transactions permitted under Section 8.06 or
8.08.
SECTION 8.02. Liens. Create, assume or suffer to exist any Lien upon
any property, except that the foregoing shall not prevent the Company or any
Subsidiary from creating, assuming or suffering to exist any of the following
Liens:
(a) Liens existing on the date hereof and set forth on Schedule 8.02
hereof;
(b) any Lien existing on property owned or leased by any Person at the
time it becomes a Subsidiary, provided that such Lien was not created in
anticipation of such person becoming a Subsidiary;
(c) any Lien existing on property at the time of the acquisition
thereof by the Company or any Subsidiary provided that such Lien was not created
in anticipation of such acquisition;
(d) Liens on property acquired, constructed or improved by the Company
or any Subsidiary; provided that the Debt secured thereby does not exceed 80% of
the cost of acquiring, constructing or improving such property and such Liens do
not apply to any other property of the Company or any Subsidiary;
(e) Liens on receivables and the proceeds thereof securing any
Permitted Receivables Securitization;
(f) any Liens securing Debt of the Company owing to a Subsidiary or a
Subsidiary owing to the Company or to another Subsidiary;
(g) Liens for taxes, assessments or governmental charges or levies not
yet due or that are being contested in good faith by appropriate proceedings;
provided that adequate reserves with respect thereto are maintained on the books
of the Company or its Subsidiaries, as the case may be, in conformity with GAAP;
(h) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business that are not more
than 60 days
52
delinquent in accordance with their terms or that are being contested in good
faith by appropriate proceedings;
(i) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(j) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(k) easements, rights-of-way, restrictions, licenses, reservations,
utility easements and other similar encumbrances imposed by law or incurred in
the ordinary course of business that, do not materially detract from the value
of the property subject thereto or materially interfere with the ordinary
conduct of the business of the Company and its Subsidiaries, considered as a
whole;
(l) any interest or title of a lessor under any lease entered into by
the Company or any Subsidiary in the ordinary course of its business and
covering only the assets so leased;
(m) attachment or judgment Liens in respect of judgments or decrees
that have been vacated, discharged or stayed within 30 days from the entry
thereof; and attachment or judgment Liens in respect of judgments or decrees
that have been bonded pending appeal within 30 days from the entry thereof and
which do not exceed $75,000,000 in the aggregate;
(n) Liens arising from precautionary U.C.C. financing statement filings
with respect to operating leases or consignment arrangements entered into by the
Company or any Subsidiary in the ordinary course of business;
(o) customary Liens in favor of a banking institution arising by
operation of law encumbering deposits (including the right of set-off) held by
such banking institutions incurred in the ordinary course of business and that
are within the general parameters customary in the banking industry;
(p) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Lien referred to in clauses
(a) through (o) above, so long as the principal amount of the Debt or other
obligations secured thereby does not exceed the principal amount of Debt or
obligations so secured at the time of such extension, renewal or replacement
(except that, where an additional principal amount of Debt is incurred to
provide funds for the completion of a specific project, the additional principal
amount, and any related financing costs, may be secured by the Lien as well) and
such Lien is limited to the same property subject to the Lien so extended,
renewed or replaced (and improvements on such property); and
(q) any Lien not permitted by clauses (a) through (p) above securing
Debt which, together with the aggregate outstanding principal amount of all
other Debt of the
53
Company and its Subsidiaries which would otherwise be subject to the foregoing
restrictions and the aggregate Value of their existing Sale and Leaseback
Transactions which would be subject to the restrictions of Section 8.02 but for
this clause (q), does not at any time exceed 5% of Consolidated Net Tangible
Assets.
SECTION 8.03. Limitation on Sale and Leaseback Transactions. Enter into
any Sale and Leaseback Transaction, or permit any Subsidiary to do so, unless
the Company or such Subsidiary would be entitled to incur Debt, in a principal
amount equal to the Value of such Sale and Leaseback Transaction, which is
secured by Liens on the property to be leased without violating Section 8.02.
SECTION 8.04. Financial Condition Covenants. (a) Consolidated Leverage
Ratio. Permit the Consolidated Leverage Ratio as at the last day of any period
of four consecutive fiscal quarters of the Company to exceed 3.0 to 1.0.
(b) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio as at the last day of any period of four consecutive
fiscal quarters of the Company to be less than 3.5 to 1.0.
SECTION 8.05. Indebtedness. Permit Subsidiaries of the Company to
create, issue, incur, assume, become liable in respect of or suffer to exist any
Debt (other than Permitted Debt) in an aggregate principal amount exceeding
$125,000,000 outstanding at any time.
SECTION 8.06. Transactions with Affiliates. Enter into any material
transaction, including any purchase, sale, lease or exchange of property, the
rendering of any service or the payment of any management, advisory or similar
fees, with any Affiliate, except any such transaction which is (a) otherwise
permitted under this Agreement, in the ordinary course of business of the
relevant Affiliate and upon fair and reasonable terms no less favorable to the
relevant Affiliate than it would obtain in a comparable arm's length transaction
with a Person that is not an Affiliate, (b) entered into prior to the date
hereof or contemplated by any agreement identified on Schedule 8.06 hereof, (c)
between or among the Company or any Subsidiary exclusively, (d) any Restricted
Payment permitted under Section 8.07, (e) any transactions in connection with
any Permitted Receivables Securitization or (f) any arrangements with officers,
directors, representatives or other employees of the Company or any Subsidiary
relating specifically to employment as such.
SECTION 8.07. Restricted Payments. At any time that the Company does
not have an Investment Grade Standing, declare or pay any dividend (other than
(i) dividends payable solely in common stock of the Person making such dividend
or options, warrants or rights to purchase shares of such common stock or (ii)
dividends or other distributions made pursuant to the Rights Agreement) on, or
make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any capital stock of any Subsidiary, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of any Subsidiary
(collectively, "Restricted Payments"), except that
54
any Subsidiary may make Restricted Payments to the Company and its other equity
holders, pro rata in accordance with their respective equity interests in such
Subsidiary.
SECTION 8.08. Investments. At any time that the Company does not have
an Investment Grade Standing, make any advance, loan, extension of credit (by
way of guaranty or otherwise) or capital contribution to, or purchase any
capital stock, bonds, notes, debentures or other debt securities of, or any
assets constituting a business unit of, or make any other investment in, any
Person (all of the foregoing, "Investments"), except the Acquisition and except:
(a) investments in Cash Equivalents;
(b) extensions of trade credit in the ordinary course of business;
(c) Loans and advances to employees of the Company or any Subsidiary in
the ordinary course of business (including for travel, entertainment and
relocation expenses) in an aggregate amount for such employees not to exceed
$10,000,000 at any one time outstanding;
(d) Loans to employees of the Company or any Subsidiary solely for the
purpose of exercising options to purchase the common stock of the Company or any
Subsidiary;
(e) intercompany Investments by the Company or any Subsidiary in the
Company or any Person that, prior to such investment, is a Guarantor, including
Guarantees by the Company of any Debt of any Subsidiary;
(f) in addition to Investments otherwise expressly permitted by this
Section 8.08, Investments by the Company or any of its Subsidiaries in an
aggregate amount (valued at cost) at any time invested not to exceed the sum of
$250,000,000 plus any amount thereof financed with Company Stock or the proceeds
of the issuance of Company Stock;
(g) Investments made or committed to be made when the Company has
Investment Grade Standing, together with any extensions, renewals or
replacements thereof (provided the aggregate amount of the Investment is not
increased), and
(h) Loans and advances to vendors, distributors or agents in the
ordinary course of business in an aggregate amount not to exceed $20,000,000 at
any time outstanding.
ARTICLE IX
Events of Default
In case of the happening of any of the following events (each an
"Event of Default"):
(a) any representation or warranty made or deemed made in or in
connection with the execution and delivery of this Agreement or the Borrowings
hereunder or under any
55
Borrowing Subsidiary Agreement shall prove to have been false or misleading in
any material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any
Loan when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration thereof or
otherwise;
(c) default shall be made in the payment of any interest on any Loan
or any fee or any other amount (other than an amount referred to in paragraph
(b) above) due hereunder, when and as the same shall become due and payable, and
such default shall continue unremedied for a period of five Business Days;
(d) default shall be made in the due observance or performance of
any covenant, condition or agreement contained in Section 7.06 or Article VIII;
(e) default shall be made in the due observance or performance of
any covenant, condition or agreement contained herein (other than those
specified in (b), (c) or (d) above) and such default shall continue unremedied
for a period of 30 days after notice thereof from the Administrative Agent or
any Lender to the Company;
(f) the Company or any Subsidiary shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of one or more items
of Debt in an aggregate principal amount greater than or equal to $75,000,000,
when and as the same shall become due and payable (giving effect to any
applicable grace period) or (ii) fail to observe or perform any other term,
covenant, condition or agreement contained in any agreement or instrument
evidencing or governing any such Debt if the effect of any failure referred to
in this clause (ii) is to cause such Debt to become due prior to its stated
maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of the Company or any Subsidiary, or of a substantial part of the
property or assets of the Company or any Subsidiary, under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Subsidiary or for a
substantial part of the property or assets of the Company or any Subsidiary or
(iii) the winding up or liquidation of the Company or any Subsidiary; and such
proceeding or petition shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall be entered;
(h) the Company or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other Federal,
state or foreign bankruptcy, insolvency, receivership or similar law, (ii)
consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or the filing of any petition described in (g) above,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any Subsidiary
or for a substantial part of the
56
property or assets of the Company or any Subsidiary, (iv) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors, (vi)
become unable, admit in writing its inability or fail generally to pay its debts
as they become due or (vii) take any action for the purpose of effecting any of
the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount equal to or greater than $75,000,000 (exclusive of any amount thereof
reasonably expected to be covered by insurance) shall be rendered against the
Company, any Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution shall
not be effectively stayed, or any action shall be legally taken by a judgment
creditor (whose liquidated judgment, along with those of any other judgment
creditors, exceeds $75,000,000) to levy upon assets or properties of the Company
or any Subsidiary to enforce any such judgment;
(j) (i) a Plan of any Borrower shall fail to maintain the minimum
funding standard required by Section 412 of the Code for any plan year or a
waiver of such standard is sought or granted under Section 412(d) or (ii) an
ERISA Termination Event shall have occurred with respect to any Borrower or an
ERISA Affiliate has incurred, or in the reasonable opinion of the Required
Lenders is reasonably likely to incur, a liability to or on account of a Plan
under Section 4062, 4063, 4064, 4201 or 4204 of ERISA or (iii) any Person shall
engage in any prohibited transaction described in Sections 406 of ERISA or 4975
of the Code for which a statutory or class exemption is not available or a
private exemption has not been previously obtained from the United States
Department of Labor or (iv) any Borrower or any ERISA Affiliate shall fail to
pay any required installment or any other payment required to be paid by such
entity under Section 412 of the Code on or before the due date for such
installment or other payment (taking into account any extensions granted) or (v)
any Borrower or any ERISA Affiliate shall fail to make any contribution or
payment to any Multiemployer Plan (as defined in Section 4001(a)(3) of ERISA)
which any Borrower or any ERISA Affiliate is required to make under any
agreement relating to such Multiemployer Plan or any law pertaining thereto
(taking into account any extensions granted), and, in the event of the
occurrence of any of the events described in clauses (i) through (v) above,
there shall result from any such event or events either a liability or a
material risk of incurring a liability which is reasonably expected to have a
Material Adverse Effect;
(k) a Change in Control shall occur; or
(l) the guarantee in Section 11.16 shall cease to be, or shall be
asserted by any Credit Party not to be, a valid and binding obligation on the
part of any Guarantor;
then, and in every such event (other than an event with respect to any Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Company or any other Borrower (which
notice to any other Borrower may be given to the Company), take either or both
of the following actions, at the same or different times: (i) terminate
forthwith the Commitments and (ii) declare the Loans then outstanding to be
forthwith due and payable in
57
whole or in part, whereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and any unpaid accrued fees and
all other liabilities of the Borrowers accrued hereunder, shall become forthwith
due and payable, without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived anything contained herein to the
contrary notwithstanding; and, in any event with respect to any Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued fees and all other liabilities of the
Borrowers accrued hereunder shall automatically become due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived anything contained herein to the contrary
notwithstanding. Notwithstanding the foregoing, during the period commencing on
the Effective Date and ending on the Offer Termination Date, the Administrative
Agent and the Lenders shall not be entitled (i) to terminate the Commitments,
rescind this Agreement or declare the Loans to be due and payable or (ii)
prevent any funding of an Offer Loan, unless (x) in the case of clause (i), a
Major Default shall have occurred and be continuing, or (y) in the case of
clause (ii), a condition precedent to Borrowing set forth in Section 6.02 shall
not have been satisfied.
ARTICLE X
The Administrative Agent
In order to expedite the transactions contemplated by this Agreement,
JPMCB is hereby appointed to act as the Administrative Agent and Advance Agent
on behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the
Administrative Agent (which term, for purposes of this Article X shall be deemed
to include the Advance Agent) to take such actions on behalf of such Lender or
holder and to exercise such powers as are specifically delegated to the
Administrative Agent by the terms and provisions hereof, together with such
actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Lenders, without hereby limiting any
implied authority, (a) to receive on behalf of the Lenders all payments of
principal of and interest on the Loans and all other amounts due to the Lenders
hereunder, and promptly to distribute to each Lender its proper share of each
payment so received; (b) to give notice on behalf of each of the Lenders to the
Credit Parties of any Event of Default of which the Administrative Agent has
actual knowledge acquired in connection with its agency hereunder; and (c) to
distribute to each Lender copies of all notices, financial statements and other
materials delivered by any Credit Party pursuant to this Agreement as received
by the Administrative Agent.
Neither the Administrative Agent nor any of its respective directors,
officers, employees or agents shall be liable as such for any action taken or
omitted by any of them except for its or his or her own gross negligence or
wilful misconduct, or be responsible for any statement, warranty or
representation herein or the contents of any document delivered in connection
herewith, or be required to ascertain or to make any inquiry concerning the
performance or observance by any Borrower of any of the terms, conditions,
covenants or agreements contained in this Agreement. The Administrative Agent
shall not be responsible to the Lenders for the due execution, genuineness,
validity, enforceability or effectiveness of this
58
Agreement or other instruments or agreements. The Administrative Agent may deem
and treat the Lender which makes any Loan as the holder of the indebtedness
resulting therefrom for all purposes hereof until it shall have received notice
from such Lender, given as provided herein, of the transfer thereof. The
Administrative Agent shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. The Administrative Agent shall, in the absence of knowledge to the
contrary, be entitled to rely on any instrument or document believed by it in
good faith to be genuine and correct and to have been signed or sent by the
proper Person or Persons. Neither the Administrative Agent nor any of its
directors, officers, employees or agents shall have any responsibility to any
Borrower on account of the failure of or delay in performance or breach by any
Lender of any of its obligations hereunder or to any Lender on account of the
failure of or delay in performance or breach by any other Lender or any Borrower
of any of their respective obligations hereunder or in connection herewith. The
Administrative Agent may execute any and all duties hereunder by or through its
Affiliates, agents or employees and shall be entitled to rely upon the advice of
legal counsel selected by them with due care with respect to all matters arising
hereunder and shall not be liable for any action taken or suffered in good faith
by them in accordance with the advice of such counsel.
The Lenders hereby acknowledge that the Administrative Agent shall be
under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement unless it shall be requested in
writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided below, the Administrative Agent may resign at any time by
notifying the Lenders and the Company. Upon any such resignation of the
Administrative Agent, the Required Lenders shall have the right to appoint a
successor Administrative Agent acceptable to the Company. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent which shall be a bank having a
combined capital and surplus of at least $500,000,000 (or any Affiliate of such
bank) with an office in New York, New York. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After the Administrative Agent's resignation hereunder, the
provisions of this Article X and Section 11.05 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
With respect to the Loans made by it hereunder, the Administrative
Agent in its individual capacity and not as Administrative Agent shall have the
same rights and powers as any other Lender and may exercise the same as though
it were not the Administrative Agent, and the Administrative Agent and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Company or any Subsidiary or other Affiliate thereof
as if it were not the Administrative Agent.
59
Each Lender agrees (i) to reimburse the Administrative Agent, on
demand, in the amount of its pro rata share of any expenses incurred for the
benefit of the Lenders by the Administrative Agent, including counsel fees and
compensation of agents and employees paid for services rendered on behalf of the
Lenders, which shall not have been reimbursed by the Borrowers and (ii) to
indemnify and hold harmless the Administrative Agent and any of its respective
directors, officers, employees or agents, on demand, in the amount of such pro
rata share, from and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against it in its capacity as the Administrative Agent in any way
relating to or arising out of this Agreement or any action taken or omitted by
it under this Agreement to the extent the same shall not have been reimbursed by
the Borrowers; provided that no Lender shall be liable to the Administrative
Agent for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the gross negligence or wilful misconduct of the Administrative Agent or
any of its directors, officers, employees or agents. For purposes hereof, a
Lender's "pro rata share" shall be determined based upon its share of the sum of
the aggregate Revolving Credit Exposure and unused Commitments at the time.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement
or any related agreement or any document furnished hereunder or thereunder.
ARTICLE XI
Miscellaneous
SECTION 11.01. Notices. Notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed or sent by telecopy, as follows:
(i) if to the Company, to Zimmer Holdings, Inc., 345 Main Street,
Warsaw, IN 46581, Attention of Sam R. Leno, Senior Vice President and
Chief Financial Officer (Telecopy No.: 574-372-4988);
(ii) if to Zimmer, to Zimmer, Inc., 345 Main Street, Warsaw, IN
46581, Attention of Sam R. Leno, Senior Vice President and Chief Financial
Officer (Telecopy No.: 574-372-4988);
(iii) if to the Administrative Agent, to JPMorgan Chase Bank, 1111
Fannin Street, Houston, Texas 77002, Attention: Jennifer Anyigbo, Account
Manager (Telecopy
60
No.: 713-750-2782 (email:jennifer.anyigbo@jpmorgan.com ); with a copy of
all documents to be delivered pursuant to Section 7.03 to JPMorgan Chase
Bank, 270 Park Avenue, 15th Floor, New York, New York 10017, Attention of
Lyette Proctor, (Telecopy No.: 212-270-5135) and to JPMorgan Chase Bank,
270 Park Avenue, 4th Floor, New York, New York, 10017, Attention of Dawn
Lee Lum (Telecopy No.: 212-270-3279);
(iv) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender became a party hereto; and
(v) if to any other Borrowing Subsidiary, to it at the address (or
telecopy number) set forth above for the Company. Each Borrower (other
than the Company) hereby irrevocably appoints the Company as its agent for
the purpose of giving on its behalf any notice and taking any other action
provided for in this Agreement (whether or not this Agreement expressly
authorizes the Company to take any such action on behalf of such Borrower)
and hereby agrees that it shall be bound by any such notice or action
given or taken by the Company hereunder irrespective of whether or not any
such notice shall have in fact been authorized by such Borrower and
irrespective of whether or not the agency provided for herein shall have
theretofore been terminated.
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by telecopy to such party as provided in this Section or in accordance
with the latest unrevoked direction from such party given in accordance with
this Section.
SECTION 11.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by any Credit Party herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Lenders and shall survive the making by the Lenders of the Loans regardless of
any investigation made by the Lenders or on their behalf, and shall continue in
full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement is outstanding
and unpaid or the Commitments have not been terminated.
SECTION 11.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Company, Zimmer and the Administrative
Agent and when the Administrative Agent shall have received copies hereof
(telecopied or otherwise) which, when taken together, bear the signature of each
Lender, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that no
Borrower shall have the right to assign any rights hereunder or any interest
herein, except in accordance with Section 11.04, without the prior consent of
all the Lenders.
SECTION 11.04. Successors and Assigns. (a) Whenever in this
Agreement any of the parties is referred to, such reference shall be deemed to
include the successors and assigns
61
of such party; and all covenants, promises and agreements by or on behalf of any
party that are contained in this Agreement shall bind and inure to the benefit
of its successors and assigns.
(b) Each Lender other than any Conduit Lender may assign to one or
more assignees all or a portion of its interests, rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it); provided, however, that, except in the case of an
assignment to another Lender, an Affiliate of a Lender or an Approved Fund, (i)
each of the Company, (so long as no Event of Default shall have occurred and be
continuing) and the Administrative Agent must give its prior written consent to
such assignment (which consent in each case shall not be unreasonably withheld)
and (ii) the amount of the Commitments of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 unless it shall be the entire amount of such Lender's
Commitments or Loans, as applicable. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance,
and a processing and recordation fee of $3,500; provided, however, that such
processing and recordation fee shall not be payable in the case of assignments
made by or to the Initial Lenders. Upon acceptance and recording pursuant to
paragraph (e) of this Section 11.04, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least five
Business Days after the execution thereof, (x) the assignee thereunder shall be
a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this Agreement
and (y) the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto (but shall
(i) continue to be entitled to the benefits of Sections 4.09, 4.10, 4.11 and
11.05, as well as to any fees accrued for its account hereunder and not yet paid
and (ii) continue to be subject to the confidentiality provisions hereof).
Notwithstanding the foregoing, any Lender assigning its rights and obligations
under this Agreement may retain any Competitive Loans made by it outstanding at
such time, and in such case shall retain its rights hereunder in respect of any
Loans so retained until such Loans have been repaid in full in accordance with
this Agreement. Notwithstanding the foregoing, any Conduit Lender may assign at
any time to its designating Lender hereunder without the consent of the Company
or the Administrative Agent any or all of the Loans it may have funded hereunder
and pursuant to its designation agreement and without regard to the limitations
set forth in the first sentence of this Section 11.04(b).
For the purpose of this Section 11.04(b), the term "Approved Fund"
has the following meaning:
"Approved Fund" means any Person (other than a natural person) that
is engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii)
an entity or an Affiliate of an entity that administers or manages a Lender.
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(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim; (ii)
except as set forth in (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto or the financial condition of the Borrowers or the performance or
observance by the Borrowers of any obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 7.03 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (v) such assignee will independently and
without reliance upon the Administrative Agent, such assigning Lender or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (vi) such assignee appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at its office referred
to in Section 11.01 a copy of each Assignment and Acceptance delivered to it and
a register for the recordation of the names and addresses of the Lenders, and
the Commitments of, and the principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time and any promissory notes
evidencing such Loans (the "Register"). The entries in the Register shall be
conclusive in the absence of manifest error and the Company, the other
Borrowers, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement. No assignment or transfer of any
Loan (or portion thereof) or any Note evidencing such Loan shall be effected
unless and until it has been recorded in the Register as provided in this
subsection 11.04(d). Notwithstanding any other provision of this Agreement, any
assignment or transfer of all or part of a promissory note shall be registered
on the Register only upon surrender for registration of assignment or transfer
of the promissory note (and each promissory note shall expressly so provide),
accompanied by a duly executed Assignment and Acceptance, and thereupon one or
more new promissory notes in the same aggregate principal amount shall be issued
to the designated Assignee and the old promissory notes shall be returned by the
Administrative Agent to the Company marked "cancelled". The Register shall be
available for inspection by each party hereto, at any reasonable time and from
time to time upon reasonable prior notice.
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(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee together with an Administrative
Questionnaire completed in respect of the assignee (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) above, if applicable, and, if required, the written consent of
the Company to such assignment, the Administrative Agent shall (i) accept such
Assignment and Acceptance and (ii) record the information contained therein in
the Register.
(f) Each Lender other than any Conduit Lender may sell
participations to one or more banks or other entities in all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans owing to it); provided, however, that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto or thereto
for the performance of such obligations, (iii) each participating bank or other
entity shall be entitled to the benefit of the cost protection provisions
contained in Sections 4.09, 4.10 and 4.11 to the same extent as if it was the
selling Lender (and limited to the amount that could have been claimed by the
selling Lender had it continued to hold the interest of such participating bank
or other entity, it being further agreed that the selling Lender will not be
permitted to make claims against the Borrowers under Section 4.09(b) for costs
or reductions resulting from the sale of a participation), except that all
claims made pursuant to such Sections shall be made through such selling Lender
and (iv) the Borrowers, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such selling Lender in connection with
such Lender's rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrowers relating to
the Loans and to approve any amendment, modification or waiver of any provision
of this Agreement (other than amendments, modifications or waivers decreasing
any fees payable hereunder or thereunder or the amount of principal of or the
rate at which interest is payable on the Loans, extending the final scheduled
maturity of the Loans or any date scheduled for the payment of interest on the
Loans or extending the Commitments).
(g) Any Lender or participant may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Section 11.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Company or the other Borrowers
furnished to such Lender; provided that, prior to any such disclosure, each such
assignee or participant or proposed assignee or participant shall be subject to
the confidentiality provisions contained herein.
(h) The Borrowers shall not assign or delegate any rights and duties
hereunder, except in accordance with Section 8.01, without the prior written
consent of all Lenders.
(i) Any Lender may at any time pledge or otherwise assign all or any
portion of its rights under this Agreement to a Federal Reserve Bank; provided
that no such pledge shall release any Lender from its obligations hereunder. In
order to facilitate such an assignment to a Federal Reserve Bank, the relevant
Borrower shall, at the request of the assigning Lender, duly
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execute and deliver to the assigning Lender a promissory note or notes
evidencing the Loans made by the assigning Lender hereunder.
(j) Each party hereto hereby confirms that it will not institute
against a Conduit Lender or join any other Person in instituting against a
Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding under any state bankruptcy or similar law, for one year
and one day after the payment in full of the latest maturing commercial paper
note issued by such Conduit Lender; provided, however, that each Lender
designating any Conduit Lender hereby agrees to indemnify, save and hold
harmless each other party hereto for any loss, cost, damage or expense arising
out of its inability to institute such a proceeding against such Conduit Lender
during such period of forbearance.
SECTION 11.05. Expenses, Indemnity. (a) The Company agrees to pay
all reasonable out-of-pocket expenses incurred by the Administrative Agent and
the Arrangers in connection with entering into this Agreement or in connection
with any amendments, modifications or waivers of the provisions hereof or
thereof (including the reasonable fees, disbursements and other charges of a
single counsel), or incurred by the Administrative Agent, the Arrangers or any
Lender in connection with the enforcement of their rights in connection with
this Agreement or in connection with the Loans made hereunder or thereunder,
including the fees and disbursements of counsel for the Administrative Agent and
the Arrangers and, in the case of enforcement, each Lender.
(b) The Company agrees to indemnify the Administrative Agent, the
Arrangers, each Lender, each of their Affiliates and the directors, officers,
employees and agents of the foregoing (each such Person being called an
"Indemnitee") against, and to hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including reasonable
counsel fees, incurred by or asserted against any Indemnitee arising out of (i)
the consummation of the transactions contemplated by this Agreement, (ii) the
use of the proceeds of the Loans or (iii) any claim, litigation, investigation
or proceeding relating to any of the foregoing, whether or not any Indemnitee is
a party thereto; provided that (x) such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses result from the gross negligence or wilful
misconduct of such Indemnitee and (y) such indemnity shall not apply to losses,
claims, damages, liabilities or relate expenses that result from disputes solely
between Lenders.
(c) The provisions of this Section 11.05 shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any investigation made by or on behalf of the
Administrative Agent or any Lender. All amounts due under this Section 11.05
shall be payable on written demand therefor.
SECTION 11.06. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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SECTION 11.07. Waivers, Amendment. (a) No failure or delay of the
Administrative Agent or any Lender in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies which they would otherwise have. No waiver
of any provision of this Agreement or consent to any departure therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on the Company
or any other Borrower in any case shall entitle such party to any other or
further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrowers and the Required Lenders; provided, however, that
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan, or waive or excuse any such payment or any part
thereof, or decrease the rate of interest on any Loan, or amend or modify
Section 11.16, without the prior written consent of each Lender directly
affected thereby, (ii) increase the Commitments or decrease the facility fees of
any Lender without the prior written consent of such Lender, (iii) amend or
modify the provisions of Section 4.12 or Section 11.04(h), the provisions of
this Section 11.07 or the definition of the "Required Lenders", or release any
Guarantor from its obligations under Section 11.16 hereof except for the release
of a Subsidiary Guarantor in connection with the consummation of a transaction
permitted under Section 8.01, without the prior written consent of each Lender
or (iv) change the provisions of any Loan Document in a manner that by its terms
adversely affects the rights in respect of payments due to Lenders holding Loans
of one Class differently from the rights of Lenders holding Loans of any other
class without the prior written consent of Lenders holding a majority in
interest of the outstanding Loans and unused Commitments of each adversely
affected Class; provided further, however, that no such agreement shall amend,
modify or otherwise affect the rights or duties of (x) the Administrative Agent
hereunder without the prior written consent of the Administrative Agent or (y)
an Initial Lender under Section 4.12 or 11.04(b) without the prior written
consent of such Initial Lender. Each Lender shall be bound by any waiver,
amendment or modification authorized by this Section 11.07 and any consent by
any Lender pursuant to this Section 11.07 shall bind any assignee of its rights
and interests hereunder.
SECTION 11.08. Entire Agreement. This Agreement and the Fee Letter
constitute the entire contract among the parties relative to the subject matter
hereof. Any previous agreement among the parties with respect to the subject
matter hereof is superseded by this Agreement. Nothing in this Agreement,
expressed or implied, is intended to confer upon any party other than the
parties hereto any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
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SECTION 11.09. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 11.10. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract, and shall become
effective as provided in Section 11.03.
SECTION 11.11. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 11.12. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or obligations of each Credit Party now or hereafter existing
under this Agreement held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. Each Lender agrees promptly to notify the Company
after such setoff and application made by such Lender, but the failure to give
such notice shall not affect the validity of such setoff and application. The
rights of each Lender under this Section 11.12 are in addition to other rights
and remedies (including, without limitation, other rights of setoff) which such
Lender may have.
SECTION 11.13. Jurisdiction: Consent to Service of Process. (a) Each
party hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Subject to the foregoing and to paragraph (b) below, nothing in this Agreement
shall affect any right that any party hereto may otherwise have to bring any
action or proceeding relating to this Agreement against any other party hereto
in the courts of any jurisdiction.
(b) Each of the parties hereto hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or thereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any New York State or Federal court. Each of the parties hereto hereby
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irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 11.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
(d) Each Borrower hereby irrevocably appoints the Company as its
agent for the service of process in any action referred to in Section 11.13(a)
and agrees that service of process in any such proceeding may be made by mailing
or delivering a copy thereof to it care of the Company at its address for notice
set forth in Section 11.01.
(e) Each Credit Party waives, to the maximum extent not prohibited
by law, any right it may have to claim or recover in any legal action or
proceeding referred to in this Section for any special, exemplary, punitive or
consequential damages.
SECTION 11.14. Waiver of Jury Trial. Each party hereto hereby
waives, to the fullest extent permitted by applicable law, any right it may have
to a trial by jury in respect of any litigation directly or indirectly arising
out of, under or in connection with this Agreement. Each party hereto (a)
certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver and (b) acknowledges
that it and other parties hereto have been induced to enter into this Agreement
by, among other things, the mutual waivers and certification in this Section
11.14.
SECTION 11.15. Conversion of Currencies. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto agrees, to
the fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.
(b) The obligations of each Borrower in respect of any sum due to
any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to be
due hereunder (the "Agreement Currency"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 11.15 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
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SECTION 11.16. Guaranty. In order to induce the Lenders to make
Loans to the Company and the other Borrowers, each Guarantor hereby
unconditionally and irrevocably guarantees as a primary obligor the Borrower
Obligations of all the Borrowers. Each Guarantor further agrees that the
Borrower Obligations may be extended and renewed, in whole or in part, without
notice to or further assent from it, and that it will remain bound upon its
agreement hereunder notwithstanding any extension or renewal of any Borrower
Obligation.
Each Guarantor waives promptness, diligence, presentment to, demand
of payment from and protest to the Borrowers of any Borrower Obligations, and
also waives notice of acceptance of its obligations and notice of protest for
nonpayment. The obligations of each Guarantor hereunder shall be absolute and
unconditional and not be affected by, and each Guarantor waives any defense it
may now or hereafter have arising out of (a) the failure of any Lender or the
Administrative Agent to assert any claim or demand or to enforce any right or
remedy against any Borrower under the provisions of this Agreement or any of the
other Loan Documents or otherwise; (b) any rescission, waiver, amendment or
modification of any of the terms or provisions of this Agreement, any other Loan
Documents or any other agreement; (c) the failure of any Lender to exercise any
right or remedy against any Borrower; (d) the invalidity or unenforceability of
any Loan Document; (e) the validity, legality or enforceability of this
Agreement or any Loan or any document or instrument relating thereto or given in
connection therewith; or (f) any other circumstance which might otherwise
constitute a defense available to or discharge of a Borrower or a guarantor
(other than indefeasible payment).
Each Guarantor further agrees that its agreements hereunder
constitutes a promise of payment when due and not of collection, and waives any
right to require that any resort be had by any Lender to any balance of any
deposit account or credit on the books of any Lender in favor of any Borrower or
any other Person.
The obligations of each Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any reason, and shall
not be subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever, by reason of the invalidity, illegality or unenforceability of the
Borrower Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of the Guarantors hereunder shall not be discharged
or impaired or otherwise affected by the failure of the Administrative Agent or
any Lender to assert any claim or demand or to enforce any remedy under this
Agreement or under any other Loan Document or any other agreement, by any waiver
or modification in respect of any thereof, by any default, failure or delay,
wilful or otherwise, in the performance of the Borrower Obligations, or by any
other act or omission which may or might in any manner or to any extent vary the
risk of the Guarantors (or any of them) or otherwise operate as a discharge of
the Guarantors (or any of them) as a matter of law or equity.
Each Guarantor further agrees that its obligations hereunder shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or interest on any Borrower
Obligation is rescinded or must otherwise be restored by the Administrative
Agent or any Lender upon the bankruptcy or reorganization of any Borrower or
otherwise.
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In furtherance of the foregoing and not in limitation of any other
right which the Administrative Agent or any Lender may have at law or in equity
against the Guarantors (or any of them) by virtue hereof, upon the failure of
any Borrower to pay any Borrower Obligation when and as the same shall become
due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, each Guarantor hereby promises to and will, upon receipt of written
demand by the Administrative Agent, forthwith pay, or cause to be paid, in cash
the amount of such unpaid Borrower Obligation. In the event that, by reason of
the bankruptcy of any Borrower (i) acceleration of Loans made to such Borrower
is prevented and (ii) the Guarantors shall not have prepaid the outstanding
Loans and other amounts due hereunder owed by such Borrower, the Guarantors will
forthwith purchase such Loans and other amounts at a price equal to the
principal amount thereof plus accrued interest thereon and any other amounts due
hereunder with respect thereto. Each Guarantor further agrees that if payment in
respect of any Borrower Obligation shall be due at a place of payment other than
New York and if, by reason of any Change in Law, war or civil disturbance or
similar event, payment of such Borrower Obligations in such place of payment
shall be impossible or, in the judgment of any applicable Lender, not consistent
with the protection of its rights or interests, then, at the election of any
applicable Lender, the Guarantors shall make payment of such Borrower Obligation
New York, and shall indemnify such Lender against any losses or expenses that it
shall sustain as a result of such alternative payment.
Following indefeasible payment in full in cash of all Borrower
Obligations and the termination of the Commitments hereunder, upon payment by
any Guarantor of any Borrower Obligations, each Lender shall, in a reasonable
manner, assign the amount of such Borrower Obligations owed to it and paid by
such Guarantor pursuant to this guarantee to such Guarantor, such assignment to
be pro tanto to the extent to which the Borrower Obligations in question were
discharged by such Guarantor, or make such disposition thereof as such Guarantor
shall direct (all without recourse to any Lender and without any representation
or warranty by any Lender except with respect to the amount of the Borrower
Obligations so assigned).
Each Subsidiary Guarantor hereby agrees that to the extent that a
Subsidiary Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Subsidiary Guarantor shall be entitled to seek and
receive contribution from and against any other Subsidiary Guarantor hereunder
which has not paid its proportionate share of such payment. Each Subsidiary
Guarantor's right of contribution shall be subject to the terms and conditions
of the immediately following paragraph. The provisions of this paragraph shall
in no respect limit the obligations and liabilities of any Subsidiary Guarantor
to the Administrative Agent and the Lenders and each Subsidiary Guarantor shall
remain liable to the Administrative Agent and the Lenders for the full amount
guaranteed by such Subsidiary Guarantor hereunder.
Upon payment by any Guarantor of any sums as provided above, all
rights of the Guarantors against any Borrower arising as a result thereof by way
of right of subrogation or otherwise shall in all respects be subordinated and
junior in right of payment to the prior indefeasible payment in full of all the
Borrower Obligations to the Lenders and termination of the Commitments.
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Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Subsidiary Guarantor in its
capacity as a guarantor under this Section 11.16 shall in no event exceed the
amount which can be guaranteed by such Subsidiary Guarantor under applicable
federal and state laws relating to the insolvency of debtors (after giving
effect to the right of contribution established above).
Each Guarantor agrees that the Borrower Obligations may at any time
and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Section 11.16 or
affecting the rights and remedies of the Administrative Agent or any Lender
hereunder.
SECTION 11.17. Confidentiality. Each of the Administrative Agent and
the Lenders expressly agrees, for the benefit of the Company and the
Subsidiaries, to maintain the confidentiality of the Confidential Information
(as defined below), except that Confidential Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Confidential Information and instructed to keep such Confidential
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder, (f) subject to an express agreement for the benefit of the Company
and the Subsidiaries containing provisions substantially the same as those of
this Section, to any assignee of or participant in, or any prospective assignee
of or participant in, any of its rights or obligations under this Agreement or
to any direct or indirect counter party to a Hedge Agreement, (g) with the
consent of the Company the Subsidiaries, (h) to the National Association of
Insurance Commissioners or any similar organization or any nationally recognized
ratings agency, or (i) to the extent such Confidential Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to any Administrative Agent or any Lender on a nonconfidential
basis from a source other than the Company and the Subsidiaries. For the
purposes of this Section, "Confidential Information" means all information,
including material nonpublic information within the meaning of Regulation FD
promulgated by the SEC ("Regulation FD"), received from the Company and the
Subsidiaries relating to such entities or their respective businesses, other
than any such information that is available to the Administrative Agent or any
Lender on a nonconfidential basis prior to disclosure by such entities; provided
that, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Confidential Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such
Person customarily accords to its own confidential information; provided,
however, that with respect to disclosures pursuant to clauses (b) and (c) of
this Section, unless prohibited by law or applicable court order, each Lender
and the Administrative Agent shall attempt to notify the Company and the
Subsidiaries of any request by any governmental agency or representative thereof
or other Person for disclosure of Confidential Information after receipt of such
request, and if reasonable, practicable and permissible, before disclosure of
such Confidential
71
Information. It is understood and agreed that the Company and the Subsidiaries
and their respective Affiliates may rely upon this Section 11.17 for any
purpose, including without limitation to comply with Regulation FD.
Notwithstanding anything herein to the contrary, any Party to this Agreement
(and any employee, representative or other agent of such Party) may disclose to
any and all persons, without limitation of any kind, the tax treatment and tax
structure of the transactions contemplated by this Agreement and all materials
of any kind (including opinions or other tax analyses) that are provided to it
relating to such tax treatment and tax structure. The preceding sentence is
intended to cause the transactions contemplated hereby not to be treated as
having been offered under conditions of confidentiality for purposes of Section
1.6011-4(b)(3) and 301.6111-2(a)(2)(ii) (or any successor provisions) of the
Treasury Regulations promulgated under the Code, and shall be construed in a
manner consistent with such purpose.
[Rest of page left intentionally blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
ZIMMER HOLDINGS,INC., as a Borrower and a
Guarantor
by
--------------------------------------
Name:
Title:
ZIMMER, INC., as a Borrower and a Guarantor
by
--------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective authorized officers as of the day and year
first above written.
ZIMMER HOLDINGS, INC., as a Borrower and a
Guarantor,
by
--------------------------------------
Name:
Title:
ZIMMER, INC., as a Borrower and a
Guarantor,
by
--------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, acting through
its Cayman Islands Branch as an Initial
Lender,
by
-------------------------------------
Name:
Title:
by
-------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as an Initial Lender
and as Administrative Agent,
by
--------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
ZlMMER HOLDINGS, INC., as a Borrower and
a Guarantor,
by
---------------------------------------
Name:
Title:
ZIMMER, INC., as a Borrower and a Guarantor,
by
---------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, acting through
its Cayman Islands Branch, as an Initial
Lender,
by
---------------------------------------
Name:
Title:
by
---------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as an Initial Lender
and as Administrative Agent,
by
-------------------------------------
Name:
Title:
BANK OF AMERICA, N.A., as an Initial
Lender,
by
-------------------------------------
Name:
Title:
SIGNATURE PAGE TO THE 364-DAY CREDIT
AGREEMENT DATED AS OF JUNE 12,2003,
among ZIMMER HOLDINGS,INC., ZIMMER,
INC., THE BORROWING SUBSIDIARIES, THE
LENDERS NAMED THEREIN and JPMORGAN
CHASE BANK, as Administrative Agent.
ZIMMER INVESTMENTS, LLC,
by
-------------------------------------
Name:
Title:
SIGNATURE PAGE TO THE 364-DAY CREDIT
AGREEMENT DATED AS OF JUNE 12,2003,
among ZIMMER HOLDINGS,INC., ZIMMER,
INC., THE BORROWING SUBSIDIARIES, THE
LENDERS NAMED THEREIN and JPMORGAN
CHASE BANK, as Administrative Agent.
ZIMMER TECHNOLOGY, INC.,
by
-------------------------------------
Name:
Title:
SIGNATURE PAGE TO THE 364-DAY CREDIT
AGREEMENT DATED AS OF JUNE 12,2003,
among ZIMMER HOLDINGS,INC., ZIMMER,
INC., THE BORROWING SUBSIDIARIES, THE
LENDERS NAMED THEREIN and JPMORGAN
CHASE BANK, as Administrative Agent.
ZIMMER PRODUCTION, INC.,
by
-------------------------------------
Name:
Title:
SIGNATURE PAGE TO THE 364-DAY CREDIT
AGREEMENT DATED AS OF JUNE 12,2003,
among ZIMMER HOLDINGS,INC., ZIMMER,
INC., THE BORROWING SUBSIDIARIES, THE
LENDERS NAMED THEREIN and JPMORGAN
CHASE BANK, as Administrative Agent.
ZIMMER ORTHOPAEDIC SURGICAL PRODUCTS, INC.
by
-------------------------------------
Name:
Title:
SIGNATURE PAGE TO THE 364-DAY CREDIT
AGREEMENT DATED AS OF JUNE 12,2003,
among ZIMMER HOLDINGS,INC.,ZIMMER,
INC., THE BORROWING SUBSIDIARIES, THE
LENDERS NAMED THEREIN and JPMORGAN
CHASE BANK, as Administrative Agent.
ZIMMER US, INC.,
by
-------------------------------------
Name:
Title: