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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): December 4, 1998
STRYKER CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
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MICHIGAN 0-9165 38-1239739
(State or other jurisdiction of (Commission (IRS employer
incorporation) file number) identification no.)
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P.O. Box 4085, Kalamazoo, Michigan 49003-4085
(Address of principal executive offices) (Zip Code)
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(616) 385-2600
(Registrant's telephone number, including area code)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On December 4, 1998, Stryker Corporation (the "Company")
completed the acquisition of Howmedica, the orthopaedic division of
Pfizer Inc. ("Howmedica"), for $1.65 billion in cash. The purchase
price was funded by cash on hand and draws under a $1.65 billion credit
facility arranged by Goldman Sachs Credit Partners L.P. and NationsBanc
Montgomery Securities LLC. The Company acquired both stock and net
assets from Pfizer Inc. and certain of its subsidiaries. The Company
intends to continue to use the assets acquired in connection with the
Howmedica business.
Howmedica is currently the world's third largest manufacturer
of reconstructive devices, including hip, knee and shoulder implants,
and also manufacturers bone cement, trauma products for internal and
external fracture fixation, implantable devices used in oral, facial
and skull surgery, and specialty surgical instruments. Howmedica had
1997 sales of approximately $820 million.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
a) Financial statements of the business acquired.
Financial statements required by this item will
be filed by amendment to this initial report no
later than February 19, 1999.
(b) Pro forma financial information.
Pro forma financial information required by this
item will be filed by amendment to this initial
report no later than February 19, 1999.
(c) Exhibits
Exhibit Number Description
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2.1 Form of Stock and Asset Purchase Agreement, dated
as of August 13, 1998, between Pfizer Inc. and
the Company (the "Purchase Agreement").
2.2 Form of Amendment No. 1, dated as of October 22,
1998, to the Purchase Agreement.
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10.1 Form of Credit and Guaranty Agreement, dated as
of December 4, 1998, among the Company,
certain subsidiaries of the Company, as
guarantors, the Lenders named therein and
certain other parties.
SIGNATURES
Pursuant to the requirements of the Securities and
Exchange Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
Date: December 21, 1998
STRYKER CORPORATION
By: /s/ David J. Simpson
------------------------
David J. Simpson
Vice President, Chief
Financial Officer and
Secretary
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EXHIBIT INDEX
Exhibit Number Description
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2.1 Form of Stock and Asset Purchase Agreement, dated
as of August 13, 1998, between Pfizer Inc. and the
Company (the "Purchase Agreement").
2.2 Form of Amendment No. 1, dated as of October 22,
1998, to the Purchase Agreement.
10.1 Form of Credit and Guaranty Agreement, dated as of
December 4, 1998, among the Company, certain
subsidiaries of the Company, as guarantors, the
Lenders named therein and certain other parties.
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EXHIBIT 2.1
STOCK AND ASSET PURCHASE AGREEMENT
BETWEEN
PFIZER INC.
AND
STRYKER CORPORATION
DATED AS OF AUGUST 13, 1998
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND TERMS......................................... 2
Section 1.1. Definitions.......................................... 2
Section 1.2. Other Definitional Provisions........................ 26
ARTICLE II PURCHASE AND SALE............................................ 27
Section 2.1. Purchase and Sale of Shares of the
ConveyeSubsidiaries.................................. 27
Section 2.2. Purchase and Sale of Assets of the Asset
Selling Corporations................................. 27
Section 2.3. Consents............................................. 32
Section 2.4. Excluded Assets of the Business...................... 34
Section 2.5. Assumption of Certain Obligations of the
Business............................................. 35
Section 2.6. Retained Liabilities of Business..................... 37
Section 2.7. Purchase Price....................................... 39
Section 2.8. Purchase Price Adjustment............................ 40
Section 2.9. Allocation of the Aggregate Purchase
Price................................................ 44
ARTICLE III CLOSING..................................................... 47
Section 3.1. Closing.............................................. 47
ARTICLE IV CONDITIONS TO CLOSING ....................................... 48
Section 4.1. Conditions to the Obligations of
Purchaser and Pfizer................................. 48
Section 4.2. Conditions to the Obligations of
Purchaser............................................ 49
Section 4.3. Conditions to the Obligations of Pfizer.............. 51
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PFIZER...................... 52
Section 5.1. Organization......................................... 52
Section 5.2. Authority; Binding Effect............................ 52
Section 5.3. Conveyed Subsidiaries; Capital Structure............. 53
Section 5.4. Non-Contravention.................................... 56
Section 5.5. Seller Corporation Consents and Approvals............ 57
Section 5.6. Financial Information; Books and Records............. 57
Section 5.7. Absence of Material Changes.......................... 58
Section 5.8. No Litigation........................................ 59
Section 5.9. Compliance with Laws................................. 59
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Section 5.10. Product Registrations; Regulatory
Compliance........................................... 60
Section 5.11. Environmental Matters................................ 61
Section 5.12. Material Contracts................................... 63
Section 5.13. Intellectual Property................................ 65
Section 5.14. Real Property........................................ 67
Section 5.15. Assets............................................... 68
Section 5.16. Taxes................................................ 69
Section 5.17. Employee Benefits.................................... 70
Section 5.18. Brokers.............................................. 73
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PURCHASER.................. 73
Section 6.1. Organization and Qualification....................... 73
Section 6.2. Corporate Authorization.............................. 73
Section 6.3. Binding Effect....................................... 74
Section 6.4. Non-Contravention.................................... 74
Section 6.5. Purchaser Consents and Approvals..................... 75
Section 6.6. Financial Capability................................. 75
Section 6.7. Securities Act....................................... 75
Section 6.8. Condition of Business................................ 75
Section 6.9. Brokers.............................................. 77
ARTICLE VII COVENANTS .................................................. 77
Section 7.1. Information and Documents............................ 77
Section 7.2. Conduct of Business.................................. 79
Section 7.3. Reasonable Best Efforts; Certain
Governmental Matters................................. 81
Section 7.4 Tax Matters.......................................... 86
Section 7.5. Employees and Employee Benefits...................... 104
Section 7.6. Certain Dividends, Etc............................... 117
Section 7.7. Resignations......................................... 118
Section 7.8. Bulk Transfer Laws................................... 118
Section 7.9. Noncompetition....................................... 119
Section 7.10. Transitional Services................................ 123
Section 7.11. Transitional Intellectual Property
License Agreement.................................... 123
Section 7.12. Compliance with WARN, Etc............................ 123
Section 7.13. Foreign Implementing Agreements...................... 123
Section 7.14. Litigation Support................................... 124
Section 7.15. Insurance............................................ 125
Section 7.16. Audited Financial Statements......................... 126
Section 7.17. Change of Name....................................... 126
Section 7.18. Notification of Certain Matters...................... 126
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ARTICLE VIII INDEMNIFICATION ........................................... 127
Section 8.1. Indemnification by Pfizer............................ 127
Section 8.2. Indemnification by Purchaser......................... 129
Section 8.3. Notice of Claims..................................... 130
Section 8.4. Third Party Claims................................... 131
Section 8.5. Expiration........................................... 132
Section 8.6. Certain Limitations.................................. 134
Section 8.7. Losses Net of Insurance, Etc......................... 134
Section 8.8. Intentionally Omitted................................ 136
Section 8.9. Sole Remedy/Waiver................................... 136
Section 8.10. Indemnification Procedures for Remedial
Actions on Conveyed Properties ...................... 137
Section 8.11. Remedial Action Obligations.......................... 141
Section 8.12. Compliance With ISRA................................. 142
Section 8.13. No Consequential Damages............................. 147
ARTICLE IX TERMINATION ................................................. 148
Section 9.1. Termination.......................................... 148
Section 9.2. Effect of Termination................................ 148
ARTICLE X MISCELLANEOUS ................................................ 150
Section 10.1. Notices.............................................. 150
Section 10.2. Amendment; Waiver.................................... 151
Section 10.3. Assignment........................................... 151
Section 10.4. Entire Agreement..................................... 152
Section 10.5. Fulfillment of Obligations........................... 152
Section 10.6. Parties in Interest.................................. 152
Section 10.7. Public Disclosure.................................... 153
Section 10.8. Return of Information................................ 153
Section 10.9. Expenses............................................. 153
Section 10.10. Schedules............................................ 154
Section 10.11. Governing Law........................................ 155
Section 10.12. Counterparts......................................... 155
Section 10.13. Headings............................................. 155
Section 10.14. Severability......................................... 155
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List of Schedules
1.1(a) Asset Selling Corporations
1.1(b) Conveyed Subsidiaries
1.1(c) Facilities
1.1(d) Stock Selling Corporations
1.1(e) Knowledge
2.2(a) Leased Real Property
2.2(e) Restrictions on Intellectual Property Sublicenses
2.2(m) Assigned Litigation
2.4(i) Excluded Assets
2.9 Allocation of the Aggregate Purchase Price
5.3(b) Capital Structure
5.3(c) Subsidiaries of Conveyed Subsidiaries
5.4 Non-Contravention
5.5 Consents and Approvals
5.6(a) Financial Statements: Exceptions
5.6(b) Financial Statements: Deferred Taxes
5.7 Absence of Material Changes
5.8 No Litigation
5.9 Compliance with Laws
5.10 Product Registrations; Regulatory Compliance
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5.11 Environmental Matters
5.12 Material Contracts
5.13 Intellectual Property
5.13(a) Intellectual Property Ownership, Validity
5.13(b) Third Party Intellectual Property Infringement
5.14(a) Real Property
5.14(c) Real Property Rights
5.15 Assets: Exceptions to title
5.16 Taxes
6.5 Purchaser Consents and Approvals
7.2 Reorganization Steps and Refinancing Matters
7.4 Check-The-Box Elections
7.4(c) Tax Sharing Agreements and Arrangements
7.5(a) Employee Benefits (US)
7.5(a)(i) Employee Severance Program
7.5(a)(ii) Employees (US)
7.5(a)(iii) Purchaser Benefit Plans
7.5(b)(ii) Purchaser Qualified Plans
7.5(e) Employees (Bargaining Unit)
7.5(f) Purchaser Benefits (non-US)
7.5(f)(i) Employees (non-US)
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7.5(f)(ii) Employee Benefits (non-US)
7.9 Existing Investments
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List of Exhibits
A. List of instruments and documents provided by Seller Corporations
to Purchaser
B. List of instruments and documents provided by Purchaser to Seller
Corporations
C. Form of Transitional Services Agreement
D. Form of Transitional Intellectual Property License Agreement
E. Pfizer Employee Separation Plan
F. Release Agreement (Individual Termination)
G. Release Agreement (Group Termination)
H. Collective Bargaining Agreement
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Copies of the Schedules and Exhibits to the Stock and Asset Purchase Agreement
will be furnished supplementally to the Securities and Exchange Commission upon
request.
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STOCK AND ASSET PURCHASE AGREEMENT
This Stock And Asset Purchase Agreement is made and entered into as of
the 13th day of August, 1998 between Pfizer Inc., a Delaware corporation
("Pfizer"), and Stryker Corporation, a Michigan corporation.
W I T N E S E T H:
WHEREAS, Pfizer through certain of its Subsidiaries is engaged in the
Business (as defined below);
WHEREAS, Pfizer is the record and beneficial owner of all of the
issued and outstanding shares of common stock of Howmedica Inc., a Delaware
corporation ("Howmedica");
WHEREAS, the Stock Selling Corporations (as defined below) are the
record and beneficial owners of all of the outstanding shares of capital stock
of the Conveyed Subsidiaries (as defined below);
WHEREAS, the Asset Selling Corporations (as defined below) own the
Conveyed Assets (as defined below); and
WHEREAS, the parties hereto desire that Pfizer shall cause the Stock
Selling Corporations to sell and transfer to Purchaser (as defined below) and
Purchaser shall purchase from the Stock Selling Corporations all of the issued
and outstanding shares of capital stock of the Conveyed Subsidiaries (the
"Shares"), and that Pfizer shall cause the Asset Selling
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Corporations to sell and transfer to Purchaser and Purchaser shall purchase from
the Asset Selling Corporations all of the Conveyed Assets and assume all of the
Assumed Liabilities (as defined below), upon the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and undertakings contained herein, subject to and on the terms and
conditions herein set forth, and intending to be bound hereby, the parties agree
as follows:
ARTICLE I
DEFINITIONS AND TERMS
Section 1.1. Definitions. As used in this Agreement, the following
terms shall have the meanings set forth or as referenced below:
"ADR" shall have the meaning set forth in Section 8.12(e) hereof.
"Affected Employee" shall mean an Employee (i) who shall accept an
offer of employment or offer of continuation of employment by Purchaser on or
prior to the Closing Date and work for Purchaser or any of its Affiliates at
least one day, or (ii) whose employment, as a matter of Law, automatically
continues with Purchaser, or (iii) whose initial offer of employment by the
Purchaser requires a relocation which is rejected, resulting in termination of
employment, whether or not such Employee
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worked for Purchaser or any of its Affiliates at least one day. For purposes of
this definition, the term "Employee" includes an Employee whose compensation is
subject to individual approval by the Pfizer Employee Compensation and
Management Development Committee.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with,
such Person at any time during the period for which the determination of
affiliation is being made.
"Aggregate Payment" shall have the meaning set forth in Section 2.7(a)
hereof.
"Aggregate Purchase Price" shall have the meaning set forth in Section
2.7(c) hereof.
"Agreement" shall mean this Agreement, as the same may be amended or
supplemented from time to time in accordance with the terms hereof.
"Allocation" shall have the meaning set forth in Section 2.9 hereof.
"Applicable Remedial Action Standard" shall have the meaning set forth
in Section 8.11.
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"Asset Purchase Price" shall have the meaning set forth in Section
2.7(c) hereof.
"Asset Selling Corporations" shall mean those entities listed on
Schedule 1.1(a) hereof.
"Assumed Contracts" shall have the meaning set forth in Section 2.2(c)
hereof.
"Assumed Liabilities" shall have the meaning set forth in Section 2.5
hereof.
"Business" shall mean the worldwide business of developing,
manufacturing, distributing and selling (i) reconstructive, trauma and specialty
products utilized by medical professionals in the treatment of musculoskeletal
disorders and (ii) specialty surgical instrumentation and related products
focused on stereotactic surgery, as conducted on the date hereof by Pfizer
through the Conveyed Subsidiaries (and their Subsidiaries) and by the Asset
Selling Corporations.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banks in New York City are authorized or obligated by law or
executive order to close.
"Cash Equivalents" shall mean cash, checks, money orders, marketable
securities, short-term instruments and other cash equivalents, funds in time and
demand deposits or similar
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accounts, and any evidence of indebtedness issued or guaranteed by any United
States Governmental Authority.
"Closing" shall mean the closing of the transactions contemplated by
this Agreement.
"Closing Date" shall have the meaning set forth in Section 3.1(a)
hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Collateral Source" shall have the meaning set forth in Section 8.7
hereof.
"Collective Bargaining Agreement" shall have the meaning set forth in
Section 7.5(e) hereof.
"Competition Laws" shall mean statutes, rules, regulations, orders,
decrees, administrative and judicial doctrines, and other Laws that are designed
or intended to prohibit, restrict or regulate actions having the purpose or
effect of monopolization, lessening of competition or restraint of trade.
"Competitive Activity" shall have the meaning set forth in Section
7.9(a) hereof.
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"Confidentiality Agreement" shall mean the Confidentiality Agreement
between Pfizer and Purchaser relating to the Business.
"Consolidated Tax Returns" shall mean any Tax Returns with respect to
Consolidated Taxes.
"Consolidated Taxes" shall mean all federal, state, provincial or
local Income Taxes, domestic or foreign, that are paid on a consolidated,
unitary, combined or similar basis with respect to Tax Returns that include
Conveyed Subsidiaries, or any of their Subsidiaries, on the one hand, and Pfizer
or any of its Subsidiaries or Affiliates (other than the Conveyed Subsidiaries
or any of their Subsidiaries) on the other.
"Conveyed Assets" shall have the meaning set forth in Section 2.2
hereof, it being understood that the Conveyed Assets do not include the Excluded
Assets or the Shares.
"Conveyed Subsidiaries" shall mean those entities listed on Schedule
1.1(b) hereof.
"Disputed Item" shall have the meaning set forth in Section 2.8(b).
"Employee" shall mean an Employee (US), an Employee (non-US) or an
Employee (Bargaining Unit).
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"Employee (Bargaining Unit)" shall mean an employee of Howmedica who
is also a member of the local Union No. 485 of the International Union of
Electronic, Electrical, Salaried, Machine and Furniture Workers, AFL-CIO.
"Employee (non-US)" shall mean any individual who as of the Closing
Date, (i) shall be (or in the case of clause (ii)(D) below, is scheduled to
become) an employee outside the United States of America of a Conveyed
Subsidiary (or a Subsidiary of a Conveyed Subsidiary), an Asset Selling
Corporation or another Affiliate of Pfizer who primarily performs (or will, on
commencing work, primarily perform) services on behalf of the Business and (ii)
either (A) shall have been employed and at work on the Closing Date, or (B)
shall have been absent on the Closing Date because of illness or on short-term
disability (including maternity disability), workers' compensation, vacation,
parental leave of absence, family and medical leave of absence, military leave
of absence or other absence or leave of absence where return to work is subject
to statutory requirements, or (C) shall have been receiving short-term
disability benefits for no more than one hundred eighty (180) consecutive days
as of the Closing Date, or (D) shall have received an offer of employment with
the Business with a Conveyed Subsidiary (or a Subsidiary of a Conveyed
Subsidiary), an Asset Selling Corporation or another Affiliate of Pfizer, in
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the ordinary course of business on or prior to the Closing Date, but shall have
not yet commenced work as of the Closing Date.
"Employee (US)" shall mean any individual who as of the Closing Date,
(i) shall be (or in the case of clause (ii)(D) below, is scheduled to become) an
employee in the United States of America of a Conveyed Subsidiary (or a
Subsidiary of a Conveyed Subsidiary), an Asset Selling Corporation or another
Affiliate of Pfizer who primarily performs (or will, on commencing work,
primarily perform) services on behalf of the Business and (ii) either (A) shall
have been employed and at work on the Closing Date, or (B) shall have been
absent on the Closing Date because of illness or on short-term disability
(including maternity disability), workers' compensation, vacation, parental
leave of absence, family and medical leave of absence, military leave of absence
or other absence or leave of absence where return to work is subject to
statutory requirements, or (C) shall have been receiving short-term disability
benefits for no more than one hundred eighty (180) consecutive days as of the
Closing Date, or (D) shall have received an offer of employment with the
Business with a Conveyed Subsidiary (or a Subsidiary of a Conveyed Subsidiary),
an Asset Selling Corporation or another Affiliate of Pfizer, in the ordinary
course of business on or prior to the Closing Date,
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but shall have not yet commenced work as of the Closing Date. Employee (US)
shall not include Employees (Bargaining Unit).
"Environmental Law" shall mean any applicable federal, state, local or
foreign Law, common Law, statute, ordinance, rule, regulation, code, order,
judgment or decree as in effect at the Closing Date relating directly or
indirectly to (i) the environmental aspects of product approvals, including
occupational health and safety, (ii) the protection of the environment
(including, without limitation, air, water vapor, surface water, groundwater,
drinking water supply, surface or subsurface land), (iii) occupational safety
and health, or (iv) the exposure to, or the use, storage, recycling, treatment,
generation, transportation, processing, handling, labeling, recycling, Release
or disposal of Hazardous Substances or Hazardous Materials.
"Environmental Liability" means the Losses resulting from (i) failure
to comply with any requirement of an Environmental Law, (ii) failure to obtain
or comply with any required Environmental Permit, (iii) a Remedial Action or
(iv) harm or injury to any real property, to any person, to public health, or to
natural resource (other than Remedial Action) as a result of exposure to
Hazardous Substances or Hazardous Materials.
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"Environmental Permits" shall mean all permits, licenses,
certificates, approvals and other authorizations required to be held by a
Conveyed Subsidiary, a Subsidiary of a Conveyed Subsidiary or an Asset Selling
Corporation or to carry on the Business pursuant to an Environmental Law.
"Equipment" shall have the meaning set forth in Section 2.2(b) hereof.
"Equipment Leases" shall have the meaning set forth in Section 2.2(b)
hereof.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Excluded Assets" shall have the meaning set forth in Section 2.4
hereof.
"Excluded Environmental Liabilities" shall mean: all Environmental
Liability associated with or arising from (i) all facilities formerly or
currently owned, leased or operated by the Business, the Conveyed Subsidiaries
or any of their Subsidiaries or the Asset Selling Corporations, other than (A)
those owned, leased or operated by a Conveyed Subsidiary or any of their
Subsidiaries as of the Closing Date or (B) those constituting part of the
Conveyed Assets transferred pursuant to this Agreement, (ii)(A) Environmental
Liabilities as set forth in subsections (iii) and (iv) of the definition of
Environmental
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Liabilities (other than those Environmental Liabilities described in subsection
(vi) of this definition), in excess of one million dollars ($1,000,000) in the
aggregate in the case of subsection (iii) of the definition of Environmental
Liabilities and with respect to non-third party claims brought by Purchaser
pursuant to subsection (iv) of the definition of Environmental Liabilities, to
the extent resulting from a claim received within three years of the Closing
Date concerning the Release or threat of Release of any Hazardous Material or
Hazardous Substance on or prior to the Closing Date at any location owned,
leased or operated by a Conveyed Subsidiary or any of their Subsidiaries as of
the Closing Date or constituting part of the Conveyed Assets. Pfizer shall be
responsible for the cost relating to a Remedial Action taken or required to
comply with applicable Environmental Law or the requirements of a Governmental
Authority or where there is a substantial likelihood that a Governmental
Authority would take or require Remedial Action in the near future; and (B)fines
and penalties and the cost of defending against an action seeking fines and
penalties, to the extent resulting from a claim received within three years of
the Closing Date concerning any non-compliance with Environmental Law or failure
to obtain or comply with any Environmental Permit in the operation of the
Business on or prior to the Closing Date, (iii) all off-site locations not used
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by the Business following the Closing Date where any of the Conveyed
Subsidiaries (or a Subsidiary of a Conveyed Subsidiary) or the Asset Selling
Corporations, directly or through third parties, disposed, stored or treated, or
arranged for the disposal, storage or treatment of, Hazardous Materials or
Hazardous Substances on or prior to the Closing Date, (iv)all off-site locations
used by the Business following the Closing Date where any of the Conveyed
Subsidiaries (or a Subsidiary of a Conveyed Subsidiary) or the Asset Selling
Corporations, directly or through third parties, disposed, stored or treated, or
arranged for the disposal, storage or treatment of Hazardous Materials or
Hazardous Substances on or prior to the Closing Date, subject to an allocation
by volume if possible or, if not possible, subject to equitable sharing of
liability between Pfizer and Purchaser, (v) any failures by the Business prior
to the Closing Date to comply with the provisions of the California Safe
Drinking Water and Toxic Enforcement Act of 1986 where there are claims related
to the sale of products by the Business prior to the Closing and where such
claims are presented to Pfizer within two years of Closing, or (vi) the New
Jersey Industrial Site Recovery Act ("ISRA"), 13 N.J.S.A., 1 K-6 et seq., the
Connecticut Transfer Act, Conn. Gen. Stat. Section 22a-134 et. seq., and other
similar Environmental Laws in connection
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with the execution of this Agreement and the transactions contemplated by this
Agreement.
The following two categories shall not be deemed to be Excluded
Environmental Liabilities: (i) the capital, operation and maintenance costs
incurred by Purchaser to continue to operate the Facilities, fixtures and
Equipment which as of the Closing Date are being operated by the Conveyed
Subsidiaries, any of their Subsidiaries, or the Asset Selling Corporations in
compliance with Environmental Laws and (ii) the closure and post-closure
expenditures related to such Facilities, fixtures and Equipment.
"Facilities" shall mean the facilities listed on Schedules 1.1(c),
2.2(a) and 5.14(a).
"Final Working Capital" shall have the meaning set forth in Section
2.8(c) hereof.
"Financial Statements" shall mean the financial data set forth on
Schedule 5.6 hereof.
"Foreign Implementing Agreements" shall mean the various agreements to
be executed by certain of the Seller Corporations after the date of this
Agreement for the purpose of implementing the transfer and conveyance on the
Closing Date, or as soon thereafter as can be effected, of Shares, Conveyed
Assets and Assumed Liabilities of Conveyed Subsidiaries and
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Asset Selling Corporations located outside of the United States to the
designated Affiliate of the Purchaser by such Seller Corporations.
"Foreign Plans" shall mean each material pension, profit sharing,
savings, retirement, health, life, disability, deferred compensation, incentive,
severance and fringe benefit plan, program, or arrangement maintained or
contributed to by any Seller Corporation for the benefit of any Employees
(non-US), other than plans, programs, or arrangements required to be maintained
or contributed to by the Laws of the relevant jurisdiction and Plans maintained
for the benefit of Employees (US) or Employees (Bargaining Unit).
"GAAP" shall mean generally accepted accounting principles and
practices in effect in the United States of America as consistently applied by
Pfizer.
"Governmental Antitrust Entity" shall have the meaning set forth in
Section 7.3(c) hereof.
"Governmental Authority" shall mean any supranational, national,
federal, state or local judicial, legislative, executive or regulatory
authority.
"Governmental Authorizations" shall mean all licenses, permits,
certificates and other authorizations and approvals required to carry on the
Business as conducted as of the date of
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this Agreement under the applicable Laws of any Governmental Authority.
"Governmental Order" shall mean any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with Governmental
Authority.
"Hazardous Materials" shall mean all materials regulated pursuant to
Environmental Law as capable of causing harm or injury to human health or the
environment, including oils, petroleum, and petroleum products.
"Hazardous Substances" shall mean any hazardous substances within the
meaning of Section 101(14) of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. ss. 9601 et seq., or any pollutant or
contaminant that is regulated under any Environmental Law.
"Howmedica" shall have the meaning set forth in the heading of this
Agreement.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended.
"Income Tax" or "Income Taxes" shall mean all Taxes based upon,
measured by, or calculated with respect to (i) gross or net income or gross or
net receipts or profits (including, but not limited to, any capital gains,
minimum taxes and any Taxes on items of tax preference, but not including sales,
use,
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real or personal property transfer or other similar Taxes), (ii) multiple bases
(including, but not limited to, corporate franchise, doing business or
occupation Taxes) if one or more of the bases upon which such Tax may be based
upon, measured by, or calculated with respect to, is described in clause (i)
above or (iii) withholding taxes measured by, or calculated with respect to, any
payments or distributions (other than wages).
"Indemnified Party" shall have the meaning set forth in Section 8.3(a)
hereof.
"Indemnifying Party" shall have the meaning set forth in Section
8.3(a) hereof.
"Independent Accountant" shall have the meaning set forth in Section
2.8(c) hereof.
"Intellectual Property" shall mean Patent Rights, inventions,
discoveries, trade secrets, know-how and ideas, rights in research and
development, and commercially practiced processes and inventions, whether
patentable or not in any jurisdiction, Trademark Rights in any jurisdiction,
copyrights and registrations or applications for registration of copyrights in
any jurisdiction, and any renewals or extensions thereof.
"Intellectual Property Licenses" shall have the meaning set forth in
Section 2.2(e) hereof.
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"Inventories" shall mean all inventory, including raw materials,
packaging supplies, work-in-process or finished goods owned by each of the
Conveyed Subsidiaries (or a Subsidiary of a Conveyed Subsidiary) or Asset
Selling Corporations and relating to the Business.
"IRS" shall mean the Internal Revenue Service of the United States.
"ISRA Buyout" shall have the meaning set forth in Section 8.12(b)
hereof.
"ISRA Buyout Payment" shall have the meaning set forth in Section
8.12(c) hereof.
"Knowledge of Pfizer" shall mean the actual knowledge of (i) an
officer of Pfizer, (ii) with respect to the environmental and health and safety
provisions of this Agreement, the Vice President, Environment, Health and Safety
of Pfizer or Pfizer's Medical Technology Group Director of Environmental Affairs
as of June 30, 1998, (iii) with respect to the employee benefit provisions of
this Agreement, the employee resources manager of Pfizer or Pfizer's Medical
Technology Group, and (iv) the individuals listed on Schedule 1.1(e).
"Laws" shall include any federal, state, foreign or local law,
statute, ordinance, rule, regulation, order, injunction, judgment or decree.
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"Leased Real Property" shall have the meaning set forth in Section
2.2(a) hereof.
"Liabilities" shall mean any and all debts, liabilities and
obligations, whether accrued or fixed, known or unknown, absolute or contingent,
matured or unmatured or determined or determinable.
"Liens" shall mean any lien, security interest, mortgage, charge or
similar encumbrance.
"Loss" or "Losses" shall have the meaning set forth in Section 8.1(a)
hereof.
"Material Adverse Effect" shall mean an effect that is materially
adverse to the business results, operations or financial condition of the
Business taken as a whole, but shall exclude any effect resulting from (i) the
execution of this Agreement, (ii) general economic conditions or (iii) any
occurrence or condition generally affecting the industries in which the Business
conducts its operations.
"Material Contracts" shall have the meaning set forth in Section
5.12(a) hereof.
"NFA/CNS" shall have the meaning set forth in Section 8.12(a) hereof.
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"NJDEP" shall have the meaning set forth in Section 8.12(a) hereof.
"Patent Rights" means patents together with any extensions,
reexaminations and reissues of such patents, patents of addition, patent
applications, divisions, continuations, continuations-in-part, and any
subsequent filings in any country claiming priority therefrom.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"Permitted Encumbrances" shall mean (i) all Liens approved in writing
by the Purchaser, (ii) statutory Liens arising out of operation of Law with
respect to a Liability incurred in the ordinary course of business and which is
not delinquent, (iii) such Liens and other imperfections of title, other than
mortgages and judgment Liens, as do not materially detract from the value or
impair the use of the property subject thereto or make such property
unmarketable, or (iv) Liens for Taxes not yet subject to penalties for
nonpayment or which are being actively contested in good faith by appropriate
proceedings, or (v) mechanics', materialmen's, carriers', workmen's,
warehousemen's, repairmen's, landlords' or other like Liens and security
obligations that are not delinquent.
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"Person" shall mean an individual, a corporation, a partnership, an
association, a trust or other entity or organization.
"Pfizer" shall have the meaning set forth in the heading of this
Agreement.
"Pfizer Qualified Plans" shall have the meaning set forth in Section
7.5(b)(i) hereof.
"Plan" shall mean any material employee benefit plan as defined in
Section 3(3) of ERISA and any other plan, program, agreement or arrangement,
whether qualified under applicable Law or not, maintained (or contributed to or
required to be contributed to) by any Seller Corporation, for the benefit of any
Employee (US) or Employees (Bargaining Unit).
"Pre-Closing Tax Period" shall have the meaning set forth in Section
7.4(g)(iii)(A) hereof.
"Product Registrations" shall have the meaning set forth in Section
5.10 hereof.
"Purchaser" shall mean Stryker Corporation and its majority owned
Subsidiaries.
"Purchaser Qualified Plans" shall have the meaning set forth in
Section 7.5(b)(ii) hereof.
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"RAWP" shall have the meaning set forth in Section 8.12(b) hereof.
"Real Property" shall have the meaning set forth in Section 5.14(a)
hereof.
"Real Property Leases" shall have the meaning set forth in Section
2.2(a) hereof.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, injecting, deposit, disposing, discharging, dispersal, escaping,
dumping or leaching into the environment, including without limitation, surface
water, soil or groundwater (including the abandonment or discarding of barrels,
containers, and other receptacles containing Hazardous Substances or Hazardous
Materials) or as otherwise defined under Environmental Laws.
"Remedial Action" shall mean action required under Environmental Law
to clean up the environment (including, without limitation, soil, surface water,
groundwater or sediments) in response to a Release of Hazardous Substances or
Hazardous Materials, including, but not limited to, associated action taken to
investigate, monitor, assess and evaluate the extent and severity of any such
Release; action taken to remediate any such Release; post-remediation monitoring
of any such Release; and preparation of all reports, studies, analyses
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or other documents relating to the above. "Remedial Action" also shall refer to
any judicial, administrative or other proceeding relating to any of the above,
including, but not limited to, the negotiation and execution of judicial or
administrative consent decrees; responding to information requests by any
Governmental Authority; or defending claims brought by any Governmental
Authority or any other Person, whether such claims are equitable or legal in
nature, relating to the cleanup of the environment (including, without
limitation, soil, surface water, groundwater, and sediments) in response to a
Release of Hazardous Substances or Hazardous Materials and associated actions.
"Required Governmental Report" shall mean any written notice, report
or other filing by Purchaser and required by Environmental Law as a result of
actions taken in the ordinary course of operating the Business; provided,
however, that actions taken in the ordinary course of operating the Business
shall not include any investigation undertaken voluntarily by the Purchaser or
at the request of a third party that is not required by Environmental Law.
"Resolution Period" shall have the meaning set forth in Section 2.8(c)
hereof.
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"Retained Liabilities" shall have the meaning set forth in Section 2.6
hereof.
"Retirement Plan" shall have the meaning set forth in Section
7.5(b)(i) hereof.
"Rutherford Plan" shall have the meaning set forth in Section 5.17(h)
hereof.
"Savings Plan" shall have the meaning set forth in Section 7.5(b)(i)
hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Seller Corporations" shall mean collectively Pfizer, the Asset
Selling Corporations and the Stock Selling Corporations.
"Shares" shall have the meaning set forth in the Recitals hereto.
"Share Purchase Price" shall have the meaning set forth in Section
2.7(b) hereof.
"Specified Sections" shall have the meaning set forth in Section 8.7
hereof.
"Stock Selling Corporations" shall mean those entities listed on
Schedule 1.1(d) hereof.
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"Straddle Period" shall have the meaning set forth in Section
7.4(a)(i) hereof.
"Subsidiary" shall mean an entity as to which Pfizer or Purchaser or
any other relevant entity, as the case may be, owns directly or indirectly 50%
or more of the voting power or other similar interests. Any Person which comes
within this definition as of the date of this Agreement but thereafter fails to
meet such definition shall from and after such time not be deemed to be a
Subsidiary of Pfizer or Purchaser or any other relevant entity, as the case may
be. Similarly, any Person which does not come within such definition as of the
date of this Agreement but which thereafter meets such definition shall from and
after such time be deemed to be a Subsidiary of Pfizer or Purchaser or any other
relevant entity, as the case may be.
"Tax" or "Taxes" shall mean all taxes, charges, duties, fees, levies
or other assessments, including but not limited to, income, excise, property,
sales, value added, profits, license, withholding (with respect to compensation
or otherwise), payroll, employment, net worth, capital gains, transfer, stamp,
social security, environmental, occupation and franchise taxes, imposed by any
Governmental Authority, and including any interest, penalties and additions
attributable thereto.
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"Tax Claim" shall have the meaning set forth in Section 7.4(i)(A)
hereof.
"Tax Return" or "Tax Returns" shall mean any return, report,
declaration, information return, statement or other document filed or required
to be filed with any Governmental Authority, in connection with the
determination, assessment or collection of any Tax or the administration of any
Laws relating to any Tax.
"Third Party Claim" shall have the meaning set forth in Section 8.4(a)
hereof.
"Trademark Rights" shall mean registered and unregistered trademarks,
service marks, brand names, certification marks, trade dress, goodwill
associated with the foregoing and registrations in any jurisdiction of, and
applications in any jurisdiction to register, the foregoing, including any
extension, modification or renewal of any such registration or application.
"Transitional Intellectual Property License Agreement" shall have the
meaning set forth in Section 7.11 hereof.
"Transitional Services Agreement" shall have the meaning set forth in
Section 7.10 hereof.
"WARN" shall mean the Worker Adjustment and Retraining Notification
Act.
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"Working Capital of the Business" shall mean the current assets less
the current liabilities of the Business, determined in accordance with GAAP on a
basis consistent with the preparation of the Financial Statements, provided that
there shall be excluded from such determination the Excluded Assets and the
Retained Liabilities and there shall be included in such determination (i) Cash
Equivalents to the extent transferred to Purchaser as provided in the
parenthetical to Section 2.4(a) (notwithstanding that Cash Equivalents were
excluded in the preparation of the Financial Statements), (ii) accruals or
reserves for deferred Taxes, (iii) the book value of Howmedica's investment in
the common stock of Orthovita Inc. and (iv) the amount of the capital
expenditure by Howmedica in respect of the renovations of the executive office
building in Rutherford, New Jersey.
"Working Capital Statement" shall have the meaning set forth in
Section 2.8(a) hereof.
Section I.2. Other Definitional Provisions.
(a) The words "hereof", "herein", "hereto" and "hereunder" and words
of similar import, when used in this Agreement, shall refer to this Agreement as
a whole and not to any particular provision of this Agreement.
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(b) The terms defined in the singular shall have a comparable meaning
when used in the plural, and vice versa.
(c) The terms "dollars" and "$" shall mean United States dollars.
ARTICLE II
PURCHASE AND SALE
Section 2.1. Purchase and Sale of Assets of the Asset Selling
Corporations. Upon the terms and subject to the conditions set forth herein, at
the Closing, Pfizer shall cause each Stock Selling Corporation to sell to
Purchaser, and Purchaser shall purchase from each Stock Selling Corporation,
free and clear of all Liens, the Shares.
Section 2.2. Purchase and Sale of Assets of the Asset Selling
Corporations. Upon the terms and subject to the conditions set forth herein, at
the Closing, Pfizer shall cause each . Upon the terms and subject to the
conditions set forth herein, at the Closing, Pfizer shall cause each Asset
Selling Corporation to sell, convey, assign and transfer to the Purchaser and
the Purchaser shall purchase, acquire and accept from each Asset Selling
Corporation, free and clear of all Liens, other than Permitted Encumbrances, all
of the respective Asset Selling Corporation's right, title and interest in the
assets, properties and rights owned or held by each such Asset
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Selling Corporation or by Pfizer or any other wholly owned Subsidiary of Pfizer
on the date hereof relating primarily to the Business or acquired by any of the
Asset Selling Corporations or by Pfizer or any other wholly owned Subsidiary of
Pfizer primarily for the Business in the ordinary course of the Business prior
to the Closing (subject to any decreases or dispositions thereof as may occur in
the ordinary course of the Business or made in accordance with Section 7.2 prior
to Closing) (collectively, the "Conveyed Assets"). Without limiting the
foregoing, the Conveyed Assets shall include all assets, properties and rights
reflected on the Financial Statements (except to the extent disposed of in the
ordinary course of business since the date thereof but only to the extent
permitted by Section 7.2 hereof or disclosed in Schedule 5.7) and, except as
expressly provided otherwise herein, shall include, without limitation, those
certain assets, properties and rights described in the following clauses (a)
through (n):
(a) the leasehold interests, including any prepaid rent, security
deposits and options to renew or purchase in connection therewith, of the Asset
Selling Corporations in real property (the "Leased Real Property" and the leases
relating to such Leased Real Property, the "Real Property Leases") which,
together with leasehold interests of the Conveyed Subsidiaries (and their
Subsidiaries) in real property, are set forth on
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Schedule 2.2(a) and the Real Property owned by any of the Asset Selling
Corporations as set forth on Schedule 5.14(a);
(b) the furniture, equipment, machinery, supplies, vehicles, spare
parts, tools, personal property and other tangible property owned, leased or
licensed by the Asset Selling Corporations or by Pfizer or any other wholly
owned Subsidiary of Pfizer and primarily used by the Business (the "Equipment"
and leases relating to such Equipment so leased by the Asset Selling
Corporations or by Pfizer or any other wholly owned Subsidiary of Pfizer, the
"Equipment Leases");
(c) the contracts, licenses, agreements and commitments relating
solely to the Business (excluding contracts, licenses, agreements and
commitments relating solely to the Excluded Assets) ("Assumed Contracts");
(d) the Inventories of the Asset Selling Corporations;
(e) all rights to the Intellectual Property owned, utilized or
licensed by the Asset Selling Corporations (the licenses relating to
Intellectual Property so licensed by the Asset Selling Corporations sometimes
referred to as the "Intellectual Property Licenses") that are used primarily in
the operation of the Business; to the extent any of said Intellectual Property,
other than the Pfizer name and logo, is
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owned, utilized or licensed by Pfizer or any Affiliate and is used for the
Business and is or could be used by one or more other businesses of Pfizer and
its Affiliates, then such Intellectual Property will be retained by Pfizer or
one of its Affiliates and at the Closing, Pfizer and/or its applicable Affiliate
will, subject to Section 2.3 and except to the extent Pfizer's rights to such
Intellectual Property do not allow it to grant such license as set forth on
Schedule 2.2(e), grant to Purchaser and its Affiliates a non-exclusive license
of such Intellectual Property for the continuation of use by the Business;
(f) Product Registrations (and applications therefor) owned, utilized
or licensed by the Asset Selling Corporations relating to the products of the
Business;
(g) transferable Governmental Authorizations, including Environmental
Permits, owned, utilized or licensed (subject to the terms of such licenses) by
the Asset Selling Corporations that are required in the operation of the
Business;
(h) the databases and software programs, source codes and user manuals
owned, used, leased by or licensed to the Asset Selling Corporations and used
primarily in the Business and (ii) the computer hardware used primarily in the
Business;
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(i) all customer and vendor lists to the extent relating to the
Business, and all files and documents (including credit information) to the
extent relating to customers and vendors of the Business, and other business and
financial records, files, books and documents (whether in hard copy or computer
format) to the extent relating to the Business;
(j) all rights of the Asset Selling Corporations under or pursuant to
prepayments, deposits, claims in bankruptcy and causes in action,
indemnification agreements and indemnification rights provided to the Asset
Selling Corporations by third parties to the extent relating to the Business;
(k) all rights of the Asset Selling Corporations under or pursuant to
all warranties, representations and guarantees made by suppliers, manufacturers
and contractors to the extent relating to the Business or to the extent
affecting the Conveyed Assets;
(l) the goodwill and going concern value of the Business;
(m) all rights of the Asset Selling Corporations under or pursuant to
the lawsuits against third parties listed on Schedule 2.2(m) hereto; and
(n) the accounts receivable of the Business.
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Section 2.3. Consents. (a) There shall be excluded from the
transactions contemplated by this Agreement any Real Property Lease, Equipment
Lease, Intellectual Property License, Assumed Contract, agreement, lease,
license or right which is not assignable or transferable without the consent of
any Person other than the Seller Corporations, or the Conveyed Subsidiaries (or
the Subsidiaries of the Conveyed Subsidiaries) or any Subsidiary of Pfizer or
Purchaser or any Subsidiary of Purchaser, to the extent that such consent shall
not have been given prior to the Closing, provided, however, that each of the
Seller Corporations and Purchaser shall have the continuing obligation after the
Closing to use its commercially reasonable efforts to obtain all necessary
consents to the assignment thereof and, upon obtaining the requisite third party
consents thereto, such Real Property Leases, Equipment Leases, Intellectual
Property Licenses, Assumed Contracts, agreements, leases, licenses or rights, if
otherwise includable in the Conveyed Assets or the transactions contemplated
hereby, shall be transferred and assigned to Purchaser hereunder.
(a) Hidden Text
(b) With respect to any Real Property Lease, Equipment Lease,
Intellectual Property License, Assumed Contract, agreement, lease, license or
right that is not included in the Conveyed Assets or assigned to Purchaser at
the
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Closing by reason of Section 2.3(a), after the Closing and until any requisite
consent is obtained and the foregoing transferred and assigned to Purchaser, the
parties shall cooperate with each other, upon written request, to obtain for
Purchaser an arrangement which Purchaser reasonably shall desire designed to
provide for Purchaser the benefits thereof in some other manner. With respect to
any consents required of a third party that shall not be obtained within a
reasonable period of time after the Closing, Pfizer or one or more of its
Affiliates shall, at the reasonable request of Purchaser and at Pfizer's
expense, enter into such arrangements with Purchaser to place Purchaser in
substantially the same economic position as if such consents had been obtained.
The obligations of Pfizer pursuant to the preceding sentence shall not extend
beyond the remaining term of such agreement, lease, license or right as of the
Closing Date.
(c) Pfizer may take (or cause one or more of its Affiliates to take)
such action as is necessary or advisable to transfer effective as of the Closing
Date the Excluded Assets from the Conveyed Subsidiaries (and the Subsidiaries of
any Conveyed Subsidiary) and each of the Asset Selling Corporations to Pfizer or
one or more of its Affiliates for such consideration or for no consideration, as
may be determined by the Seller Corporations in their sole discretion. After the
Closing Date, Purchaser shall take all actions (or shall cause
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its Affiliates to take all actions) reasonably requested by the Seller
Corporations to effect the provisions of this Section 2.3. Any action taken
pursuant to this Section 2.3(c) after the Closing Date shall be deemed for the
purposes of Section 2.8 to have occurred on the Closing Date and shall be
reflected in the calculation of the Working Capital of the Business pursuant to
such Section 2.8.
Section 2.4. Excluded Assets of the Business. Notwithstanding any
provision in this Agreement, the Seller Corporations shall retain, with respect
to the Business, any Conveyed Subsidiary (or a Subsidiary of a Conveyed
Subsidiary) or any Asset Selling Corporation, the following (the "Excluded
Assets"):
(a) Cash Equivalents (except to the extent that Cash Equivalents are
not transferred pursuant to Section 2.3(c) and are reflected in the calculation
of the Working Capital of the Business pursuant to Section 2.8);
(b) all intercompany receivables, other than amounts due and owing
among the Conveyed Subsidiaries, their Subsidiaries and the Asset Selling
Corporations in respect of the Business;
(c) except as included in the Working Capital Statement, all Tax
losses, Tax loss carry forwards and rights to
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receive refunds, credits and credit carry forwards with respect to any and all
Taxes, that are attributable to a taxable period ending on or prior to the
Closing Date, including, without limitation, interest thereon, whether or not
the foregoing is derived from the Business;
(d) the corporate books and records of the Asset Selling Corporations;
(e) all current and prior insurance policies and all rights of any
nature with respect thereto, including all insurance recoveries thereunder and
rights to assert claims with respect to any such insurance recoveries;
(f) except as expressly set forth herein, all assets of any employee
benefit plan;
(g) the "Pfizer" name and logo;
(h) except as specifically provided in Section 2.2, all assets not
related primarily to the Business; and
(i) any legal or beneficial interest in the share capital of the
entities, and the other assets, listed on Schedule 2.4(i), none of which are
used or engaged in the operation of the Business.
Section 2.5. Assumption of Certain Obligations of the Business. Upon
the terms and subject to the conditions of this
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Agreement, Purchaser agrees, effective at the Closing, to assume all Liabilities
of the Seller Corporations to the extent relating to the Conveyed Assets or the
Business and to cause the Conveyed Subsidiaries and their Subsidiaries to
satisfy and discharge their respective Liabilities, whether arising on, prior to
or after the Closing Date, and whether accrued or fixed, known or unknown,
absolute or contingent, matured or unmatured or determined or determinable as of
the Closing Date, other than the Retained Liabilities (all of the foregoing
liabilities and obligations being herein collectively called the "Assumed
Liabilities"). Except for Liabilities expressly within the definition of
Retained Liabilities or as otherwise provided in this Agreement, Assumed
Liabilities shall include, without limitation, the following:
(a) except as provided in Section 2.6(g), all lawsuits commenced and
claims made after the Closing Date to the extent resulting from the conduct of
the Business or the ownership of the Shares or the Conveyed Assets prior to, on
or after the Closing Date;
(b) all Liabilities for Taxes to the extent accrued or reserved
against in the Working Capital Statement; and
(c) all Liabilities resulting from a claim by a third party for money
or other compensation (beyond the cost of a
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particular product) in respect of injury allegedly due and owing as a result of
the use or application of a product of the Business sold after the Closing Date,
including, without limitation, warranty obligations and irrespective of the
legal theory asserted.
Section 2.6. Retained Liabilities of Business. Notwithstanding any
provision in this Agreement, the Seller Corporations shall retain and be
responsible for the following (the "Retained Liabilities"):
(a) the Excluded Environmental Liabilities, including those items
listed on Schedule 5.11 which otherwise satisfy the definition of Excluded
Environmental Liabilities;
(b) Liabilities resulting from all lawsuits (including, without
limitation, workers' compensation claims) pending as of the Closing Date and all
other claims with respect to which Pfizer or any Seller Corporation has received
written notice on or prior to the Closing Date solely to the extent resulting
from the conduct of the Business by any Seller Corporation or Conveyed
Subsidiary or their Affiliates on or prior to the Closing Date, including,
without limitation, the pending lawsuits listed on Schedule 5.8 hereto, but
excluding any Liabilities resulting from the lawsuits referred to in Section
2.2(m);
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(c) Liabilities for which any Seller Corporation expressly has
responsibility pursuant to the terms of this Agreement;
(d) Liabilities associated with the Excluded Assets;
(e) intercompany Liabilities, other than amounts due and owing among
the Conveyed Subsidiaries, their Subsidiaries and the Asset Selling Corporations
in respect of the Business;
(f) Liabilities with respect to Employees, Plans and Foreign Plans
with respect to periods prior to the Closing, except as provided herein;
(g) Liabilities resulting from a claim by a third party for money or
other compensation (beyond the cost of a particular product) in respect of
injury allegedly due and owing as a result of the use or application of a
product of the Business sold on or prior to the Closing Date, including, without
limitation, warranty obligations and irrespective of the legal theory asserted;
and
(h) any and all Liabilities for Taxes and workers' compensation
premiums related to the Business or the Conveyed Assets for periods prior to and
including the Closing Date, except for (1) Taxes and workers' compensation
premiums solely attributable to actions of Purchaser other than those
contemplated by this Agreement, occurring after the Closing, or
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(2) to the extent accrued or reserved against in the Working Capital Statement.
Section 2.7. Purchase Price. (a) In consideration of the sale and
transfer of the Shares and the sale and transfer of the Conveyed Assets,
Purchaser shall pay to Pfizer, as agent for the Seller Corporations (or to
Pfizer's Affiliates as Pfizer may on behalf of the Seller Corporations direct in
the written transfer instructions hereinafter referred to), an aggregate amount
of One Billion, Nine Hundred Million Dollars ($1,900,000,000) (the "Aggregate
Payment"), in immediately available funds, by wire transfer in accordance with
written instructions given by Pfizer to Purchaser not less than two (2) Business
Days prior to the Closing, which consideration shall be subject to the purchase
price adjustment provided for in Section 2.8 and shall be allocated as described
below.
(a) In consideration of the sale and transfer of the Shares, Purchaser
agrees to purchase from the Stock Selling Corporations the Shares for an
aggregate purchase price of $620,300,000, allocated among the Shares as
described in Schedule 2.9 (the "Share Purchase Price").
(b) In consideration of the sale and transfer of the Conveyed Assets,
the Purchaser agrees to purchase from each Asset Selling Corporation the
Conveyed Assets owned by such
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Asset Selling Corporation for an aggregate purchase price of $1,279,700,000,
allocated among the Asset Selling Corporations as described in Section 2.9 (the
"Asset Purchase Price" and, together with the Share Purchase Price, the
"Aggregate Purchase Price").
Section 2.8. Purchase Price Adjustment.
(a) Within ninety (90) days after the Closing Date, Pfizer shall
deliver to Purchaser a statement of the Working Capital of the Business as of
the Closing Date (the "Working Capital Statement"). The Working Capital
Statement shall be unaudited and shall state the Working Capital of the Business
as of the Closing Date, calculated using the spot exchange rates for the
appropriate currencies as published in the Wall Street Journal, Eastern Edition,
on the Closing Date taking into account any transfers made pursuant to Section
2.3(c) and the settlement of any Liabilities referred to in Section 2.6(e) after
the Closing Date, which for the purposes of the Working Capital Statement shall
be deemed to have been settled on the Closing Date at the amount settled.
Purchaser shall provide Pfizer with access to the books, records, and personnel
of the Business necessary for Pfizer to prepare the Working Capital Statement.
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(b) Purchaser may dispute the amounts reflected on the line items of
the Working Capital Statement (a "Disputed Item"), but only (i) on the basis
that an entry contained on such Working Capital Statement is based on facts or
occurrences arising solely between the date of the Financial Statements and the
date of the Working Capital Statement, (ii) a Disputed Item does not reflect, or
has not been made in a manner consistent with, the provisions of this Agreement,
and (iii) to the extent the amount disputed with respect to all Disputed Items
exceeds $2,750,000 in the aggregate; provided, however, the Purchaser shall
notify Pfizer in writing of each Disputed Item, and specify the amount thereof
in dispute and the basis therefor, within ninety (90) days after receipt of the
Working Capital Statement. The failure by Purchaser to provide a notice of
Disputed Items to Pfizer within such ninety (90) day period will constitute
Purchaser's acceptance of all the items in the Working Capital Statement.
(c) If a notice of Disputed Items shall be timely delivered pursuant
to subclause (b) above, Pfizer and the Purchaser shall, during the ten (10)
Business Days following the date of such delivery (the "Resolution Period"),
negotiate in good faith to resolve the Disputed Items. If during such Resolution
Period the parties are unable to reach agreement, Pfizer and the Purchaser shall
refer all unresolved Disputed
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Items to PriceWaterhouseCoopers, or any other independent accounting firm as
Pfizer and Purchaser shall mutually agree upon (the "Independent Accountant").
The Independent Accountant shall make a determination with respect to each
unresolved Disputed Item within fifteen (15) days after its engagement by Pfizer
and Purchaser to resolve such Disputed Items, which determination shall be made
in accordance with the rules set forth in this Section 2.8. The Independent
Accountant shall deliver to Pfizer and Purchaser, within such fifteen (15) day
period, a report setting forth its adjustments, if any, to the Working Capital
Statement and the calculations supporting such adjustments. Such report shall be
final, binding on the parties and conclusive. Pfizer and Purchaser shall each
pay one-half of all the costs incurred in connection with the engagement of the
Independent Accountant. As used herein, "Final Working Capital" shall mean (i)
if no notice of Disputed Items is delivered by Purchaser within the period
provided in subclause (b) above, Working Capital of the Business as shown in the
Working Capital Statement as prepared by Pfizer, or (ii) if such a notice of
Disputed Items is delivered by Purchaser, either (x) Working Capital of the
Business as agreed to in writing by Pfizer and Purchaser, (y) Working Capital of
the Business as shown in the Independent Accountant's calculation delivered
pursuant to this subclause (c) provided that such calculation is at least
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$2,750,000 less than the amount shown in the Working Capital Statement as
prepared by Pfizer or (z) if such Independent Accountant's calculation is not at
least $2,750,000 less than the amount shown in the Working Capital Statement as
prepared by Pfizer, Working Capital of the Business as shown in the Working
Capital Statement as prepared by Pfizer.
(d) If the Final Working Capital is less than $289,484,000, then
Pfizer, on behalf of the Seller Corporations, shall, within ten (10) days after
the determination of the Final Working Capital, pay to Purchaser, by wire
transfer of immediately available funds in accordance with written instructions
given to Pfizer by Purchaser, the amount of such shortfall, together with
interest on such amount from the Closing Date to the date of such payment at an
annual rate equal to the ninety (90) day commercial paper rate for high grade
unsecured notes as published in the Wall Street Journal, Eastern Edition, on the
Closing Date. If the Final Working Capital is greater than $289,484,000, then
Purchaser shall, within ten (10) days after the determination of the Final
Working Capital, pay to Pfizer, by wire transfer of immediately available funds
in accordance with written instructions given by Pfizer to Purchaser, the amount
of such excess, together with interest on such amount from the Closing Date to
the date of such payment at an annual rate equal to the ninety (90) day
commercial paper
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rate for high grade unsecured notes as published in the Wall Street Journal,
Eastern Edition, on the Closing Date.
Section 2.9. Allocation of the Aggregate Purchase Price. Pfizer, on
behalf of itself and the Seller Corporations, and Purchaser (i) have agreed to
the allocation of the Aggregate Purchase Price among the Conveyed Subsidiaries
and the Asset Selling Corporations as set forth in Schedule 2.9 (the "Section
2.9(i) Allocation") and (ii) shall agree prior to Closing on (A) the portion of
the Aggregate Purchase Price that shall be allocated to Howmedica Leibinger Inc.
(the "Section 338(h)(10) Aggregate Purchase Price"), (B) an allocation of the
Section 338(h)(10) Aggregate Purchase Price among the assets of Howmedica
Leibinger Inc. (the "Section 2.9(ii)(B) Allocation") and (C) the portion of the
Aggregate Purchase Price that shall be allocated to, and the allocation of such
portion among, the Conveyed Assets of Howmedica (the "Section 2.9(ii)(C)
Allocation" and, together with the Section 2.9(i) Allocation and the Section
2.9(ii)(B) Allocation, the "Allocation"). Each of Seller Corporations on the one
hand and Purchaser on the other shall (i) be bound by the Allocation for
purposes of determining any Taxes, (ii) prepare and file, and cause its
Affiliates to prepare and file, its Tax Returns on a basis consistent with the
Allocation, and (iii) take no position, and cause its Affiliates to take no
position, inconsistent with the Allocation on any
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applicable Tax Return or in any proceeding before any taxing authority or
otherwise. In the event that the Allocation is disputed by any taxing authority,
the party receiving notice of the dispute shall promptly notify the other party
hereto concerning the existence of the dispute and the proposed resolution of
the dispute. Each of the Seller Corporations and Purchaser acknowledge that the
Section 2.9(i) Allocation was done at arm's length based upon a good faith
estimate of fair market values. Pfizer and Purchaser agree that Purchaser shall
choose an independent appraisal firm to perform an appraisal to support the
Section 2.9(ii)(B) Allocation and the Section 2.9(ii)(C) Allocation. The cost of
such appraisal firm shall be borne by Purchaser. Pfizer shall be provided with a
copy of the appraiser's report at least 15 days prior to Closing and, provided
that Pfizer consents to the report (which consent shall not be unreasonably
withheld), the Section 2.9(ii)(B) Allocation and the Section 2.9(ii)(C)
Allocation each shall be made as specified in the report. If Pfizer does not
consent to the appraiser's report, Pfizer and Purchaser shall mutually agree
prior to Closing on any changes to be made to the report and the Section
2.9(ii)(B) Allocation and the Section 2.9(ii)(C) Allocation each shall be made
as specified in the report as so changed. Notwithstanding the foregoing, the
parties agree that, for purposes of the Section 2.9(ii)(C) Allocation, the
amounts
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to be allocated for goodwill (defined for these purposes as the value of trade
or business attributable to the expectancy of continued customer patronage) of
Howmedica International Inc., Howmedica GmbH and Howmedica Leibinger GmbH & Co.
KG shall not be less than $40,000,000, $35,000,000 and $20,000,000,
respectively. Working capital adjustments pursuant to Section 2.8 and other
post-Closing adjustments, if any, to the Aggregate Purchase Price shall be
allocated to the Conveyed Subsidiary (and its Subsidiaries) or to the Asset
Selling Corporation to which the adjustment relates, and shall be further
allocated (if relevant for purposes of any applicable Law) to the assets to
which the adjustment relates. The Aggregate Purchase Price allocation to such
Conveyed Subsidiary (or Subsidiary) or Asset Selling Corporation shall be
correspondingly increased or decreased. If after all other adjustments to the
Allocation are made, the Allocation with respect to any Asset Selling
Corporation, when expressed in the relevant local currency at the rate of
exchange used to determine Final Working Capital, is less than the local
currency net book value, determined in accordance with GAAP, of the Conveyed
Assets of such Asset Selling Corporation as of the Closing Date, then the
Allocation with respect to such Asset Selling Corporation shall be adjusted so
that it is equal to such local currency net book value converted at the rate of
exchange used to determine Final
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Working Capital and a corresponding adjustment to the Allocation with respect to
Howmedica International Inc. will be made.
ARTICLE III
CLOSING
Section 3.1. Closing. (a) The Closing shall take place at the offices
of Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New York, at 10:00
A.M., New York time, on the fifth (5th) Business Day following the satisfaction
or waiver of the conditions precedent specified in Article IV (other than the
conditions to be satisfied on the Closing Date, but subject to the waiver or
satisfaction of such conditions), or at such other times and places as the
parties hereto may mutually agree; provided, however, that without the agreement
of Pfizer and Purchaser, the Closing shall not occur later than the date
specified in Section 9.1(b) of this Agreement nor earlier than October 30, 1998.
The date on which the Closing occurs is called the "Closing Date." The Closing
shall be deemed to occur and be effective as of the close of business on the
Closing Date.
(a) At the Closing, the Seller Corporations shall deliver or cause to
be delivered to Purchaser the instruments and documents set forth in Exhibit A
hereto and the annexes to such Exhibit, in form reasonably acceptable to
Purchaser.
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(b) At the Closing, Purchaser shall deliver to Pfizer, as agent for
the Seller Corporations, the following: (i) the sum of the Aggregate Payment by
wire transfer in immediately available funds to one or more accounts specified
in writing by Pfizer at least two (2) Business Days prior to the Closing Date
and (ii) the instruments and documents set forth in Exhibit B hereto and the
annexes to such Exhibit, in form reasonably acceptable to Pfizer.
ARTICLE IV
CONDITIONS TO CLOSING
Section 4.1. Conditions to the Obligations of Purchaser and Pfizer.
The respective obligations of each of the parties to consummate the transactions
contemplated by this Agreement shall be subject to the satisfaction of the
following conditions precedent:
(a) There shall not (i) be in effect any Law or Governmental Order
that makes illegal or enjoins or prevents in any respect the consummation of the
transactions contemplated by this Agreement, or (ii) have been commenced, and
shall be continuing, or threatened in writing any action or proceeding by any
Governmental Authority which seeks to prevent or enjoin in any respect the
transactions contemplated by this Agreement; and
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(b) (i) the waiting period required under the HSR Act, including any
extensions thereof, shall have expired and any investigations relating to the
sale hereunder that may have been opened by either the Department of Justice or
the Federal Trade Commission by means of a request for additional information or
otherwise shall have terminated, (ii) any approval or action of a Governmental
Authority that is necessary to lawfully consummate the transactions contemplated
hereby in Ireland, Germany, Austria, France and Switzerland shall have been
obtained or taken, (iii) Purchaser shall have all Environmental Permits pursuant
to applicable Environmental Laws necessary in the United States and the
countries specified in clause (ii) above, or equivalent authorizations or
assurances that operations can lawfully continue while Purchaser is seeking to
obtain Environmental Permits to replace those Environmental Permits that are not
transferable to Purchaser, and (iv) with respect to manufacturing and
distribution facilities in the United States and the countries specified in
clause (ii) above, any required approvals to transfer leasehold interests with
respect to property leased by Asset Selling Corporations, Conveyed Subsidiaries
or Subsidiaries of Conveyed Subsidiaries.
Section 4.2. Conditions to the Obligations of Purchaser. The
obligation of Purchaser to consummate the
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transactions contemplated by this Agreement shall be subject to the satisfaction
of the following conditions precedent:
(a) Pfizer shall have performed in all material respects its
agreements and obligations contained in this Agreement required to be performed
by it at or before the Closing, and the representations and warranties of Pfizer
contained herein (without regard to any materiality exception or qualification
set forth in any representation and warranty) shall have been true and correct
when made and shall be true and correct as of the Closing, as if made as of the
Closing, except for (i) changes directly resulting from or permitted by this
Agreement or attributable to matters disclosed by Pfizer in the Schedules
hereto, (ii) those representations and warranties that address matters as of a
particular date, which need be true only as of such date, and (iii) changes that
would not, individually or in the aggregate, have a Material Adverse Effect.
Purchaser shall have received a certificate of Pfizer, dated as of the Closing
Date and signed by an officer of Pfizer, certifying as to the fulfillment of the
foregoing;
(b) Pfizer shall have made or caused to be made delivery to the
Purchaser of the items required by Section 3.1(b);
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(c) Purchaser shall have received funds pursuant to the credit
facilities provided for in the commitment letter, dated as of the date hereof,
between Purchaser and Goldman Sachs Credit Partners L.P., a copy of which has
been furnished to Pfizer (the "Goldman Commitment Letter"); and
(d) Pfizer shall have performed such obligations under the Connecticut
Transfer Act, ISRA and other similar Environmental Laws required to consummate
lawfully the transactions contemplated by this Agreement.
Section 4.3. Conditions to the Obligations of Pfizer. The obligation
of Pfizer to consummate the transactions contemplated by this Agreement shall be
subject to the satisfaction of the following conditions precedent:
(a) Purchaser shall have performed in all material respects its
agreements and obligations contained in this Agreement required to be performed
by it at or before the Closing, and the representations and warranties of
Purchaser contained herein shall have been true and correct in all material
respects when made and shall be true and correct in all material respects as of
the Closing, as if made as of the Closing (except for (i) changes contemplated
or permitted by this Agreement or attributable to matters disclosed by Purchaser
in the Schedules hereto, and (ii) those representations and
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warranties that address matters as of a particular date, which need be true only
as of such date). Pfizer shall have received a certificate of Purchaser, dated
as of the Closing Date and signed by an officer of Purchaser, certifying as to
the fulfillment of the foregoing; and
(b) Purchaser shall have made or caused to be made delivery to Pfizer
of the items required by Section 3.1(c).
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PFIZER
Pfizer hereby represents and warrants to Purchaser as follows:
Section 5.1. Organization. Pfizer is a corporation duly organized,
validly existing and in good standing under the Laws of the State of Delaware.
Each Stock Selling Corporation and Asset Selling Corporation is a corporation
duly organized, validly existing and, where applicable, in good standing under
the Laws of the jurisdiction of its organization.
Section 5.2. Authority; Binding Effect.
(a) Each of the Seller Corporations has all requisite corporate power
and authority to carry on the Business as it is now being conducted and to
execute, deliver and perform the Foreign Implementing Agreements in accordance
with the terms of this Agreement. Pfizer has all requisite corporate power and
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authority to execute and deliver this Agreement and to perform its obligations
hereunder. The execution and delivery by Pfizer of this Agreement, and the
performance by Pfizer of its obligations hereunder, have been duly authorized by
all requisite corporate action and no other corporate proceedings are required
in connection with the execution, delivery and performance of this Agreement.
(b) This Agreement constitutes a valid and binding obligation of
Pfizer, enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally or by general principles
of equity (regardless of whether enforcement is sought in a proceeding in equity
or law).
Section 5.3. Conveyed Subsidiaries; Capital Structure.
(a) Each of the Conveyed Subsidiaries is duly organized, validly
existing and, where applicable, is in good standing under the Laws of its
jurisdiction of organization, with corporate power and authority to own and
operate its properties and assets and to carry on the Business as currently
conducted. Each of the Conveyed Subsidiaries is duly qualified to do business
and, where applicable, is in good standing in
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each jurisdiction where the nature of its business or properties makes such
qualification necessary, except in jurisdictions where the failure to be so
qualified would not, individually or in the aggregate, have a Material Adverse
Effect. Schedule 1.1 (b) sets forth the jurisdiction of incorporation of each
Conveyed Subsidiary and within 45 days prior to the Closing such schedule shall
be supplemented to show the jurisdictions in which it is qualified to do
business as a foreign corporation.
(b) Schedule 5.3(b) sets forth the authorized capital stock of the
Conveyed Subsidiaries and the number of shares of each class of capital stock in
each such Conveyed Subsidiary which are validly issued and outstanding, fully
paid and nonassessable. There are no outstanding warrants, options, agreements,
subscriptions, convertible or exchangeable securities or other commitments
pursuant to which any of the Conveyed Subsidiaries is or may become obligated to
issue, sell, purchase, return or redeem any shares of capital stock or other
securities of the Conveyed Subsidiaries and no equity securities of any of the
Conveyed Subsidiaries are reserved for issuance for any purpose. The Stock
Selling Corporations own of record and beneficially the outstanding Shares as
indicated on Schedule 5.3(b), free and clear of all Liens.
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(c) Schedule 5.3(c) sets forth the name and the jurisdiction of
incorporation of all Subsidiaries of the Conveyed Subsidiaries. Each such
Subsidiary is duly organized, validly existing and, where applicable, in good
standing under the Laws of its jurisdiction of organization, and has the
corporate power and authority to own and operate its properties and assets and
to carry on its business as currently conducted. Each Subsidiary is duly
qualified to do business and, where applicable, is in good standing in each
jurisdiction where the nature of its business or properties makes such
qualification necessary, except in jurisdictions where the failure to be so
qualified would not, individually or in the aggregate, have a Material Adverse
Effect. All of the shares of capital stock of each Subsidiary of a Conveyed
Subsidiary are validly issued, fully paid and nonassessable, and a Conveyed
Subsidiary or Subsidiary of a Conveyed Subsidiary owns such shares, free and
clear of all Liens. There are no outstanding warrants, options, agreements,
subscriptions, convertible or exchangeable securities or other commitments
pursuant to which any such Subsidiary is or may become obligated to issue, sell,
purchase, return or redeem any shares of capital stock or other security of each
such Subsidiary and no equity securities of each such Subsidiary are reserved
for issuance for any purpose.
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Section 5.4. Non-Contravention. The execution, delivery and
performance of this Agreement by each of the Seller Corporations and the
consummation of the transactions contemplated hereby does not and will not (i)
violate any provision of the certificate of incorporation, bylaws or other
comparable organizational documents of Pfizer, the Stock Selling Corporations,
the Conveyed Subsidiaries (or any Subsidiary of a Conveyed Subsidiary) or any
Asset Selling Corporation, (ii) subject to obtaining the consents referred to in
Schedule 5.4, conflict with, or result in the breach of, or constitute a default
under, or result in the termination, cancellation or acceleration (whether after
the giving of notice or the lapse of time or both) of any right or obligation of
Pfizer, the Stock Selling Corporations, the Conveyed Subsidiaries (or any
Subsidiary of a Conveyed Subsidiary) or any Asset Selling Corporation under, or
to a loss of any benefit of the Business to which Pfizer, the Stock Selling
Corporations, the Conveyed Subsidiaries (or any Subsidiary of a Conveyed
Subsidiary) or any Asset Selling Corporation is entitled under, any Material
Contract, lease of real estate or license of Intellectual Property to which any
Seller Corporation or Conveyed Subsidiary (or Subsidiary of a Conveyed
Subsidiary) is a party or to which its assets are subject or result in the
creation or imposition of any Lien, other than a Permitted Encumbrance, on any
of the
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Shares or any Conveyed Asset, (iii) assuming compliance with the matters set
forth in Sections 5.5 and 6.5, violate or result in a breach of or constitute a
default under any Law or other restriction of any Governmental Authority to
which any Seller Corporation or Conveyed Subsidiary (or Subsidiary of a Conveyed
Subsidiary) is subject, except, with respect to clauses (ii) and (iii), for any
violations, conflicts, defaults, terminations, cancellations or accelerations as
would not, individually or in the aggregate, have a Material Adverse Effect.
Section 5.5. Seller Corporation Consents and Approvals. Other than as
set forth in Schedule 5.5, the execution and delivery of this Agreement by each
of the Seller Corporations do not require any consent or approval of any
Governmental Authority.
Section 5.6. Financial Information; Books and Records. (a) Except as
set forth in Schedule 5.6(a), the Financial Statements have been prepared in
accordance with Pfizer's policies and procedures, which are in accordance with
GAAP, and present fairly in accordance with such policies and procedures (i) in
all material respects, the financial condition, assets and liabilities of the
Business (excluding Excluded Assets and Retained Liabilities) as of the dates
therein specified and (ii) the results of operations of the Business for the
periods then ended. The accounts receivable of
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the Business reflected in the Financial Statements arose from bona fide
transactions and the reserves in respect thereof reflected on the Financial
Statements are in accordance with GAAP. The Inventories of the Business
reflected in the Financial Statements are valued at the lower of cost or market
with allowance for obsolescence in accordance with GAAP. Schedule 5.6(b) sets
out the descriptions and amounts of deferred Taxes as shown in the Financial
Statements.
(a) Hidden Text
(b) The financial statements to be delivered by Pfizer to Purchaser
pursuant to Section 7.16 will be prepared in accordance with Pfizer's policies
and procedures, which are in accordance with GAAP, and will present fairly in
accordance with such policies and procedures (i) in all material respects, the
financial condition, assets and liabilities of the Business as of the date
therein specified and (ii) the results of operations of the Business for the
periods then ended.
Section 5.7. Absence of Material Changes. Since December 31, 1997,
except to the extent set forth in Schedule 5.7, there has not been any:
(a) Material Adverse Effect;
(b) damage, destruction or condemnation (whether or not covered by
insurance) of any asset of any Conveyed
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Subsidiary (or Subsidiary of a Conveyed Subsidiary) or any Conveyed Asset
resulting in a loss, individually or in the aggregate, in excess of $5,000,000;
(c) sale, lease, license, abandonment or other disposition by any of
the Conveyed Subsidiaries (or any of their Subsidiaries) or the Asset Selling
Corporations of any material assets, except in the ordinary course of the
Business; and
(d) increase or enhancement of the compensation or benefits of
Employees other than in the ordinary course of the Business.
Section 5.8. No Litigation. Except as may be set forth on Schedule
5.8, as of the date hereof, no litigation, investigation or proceeding by or
before any court or Governmental Authority or arbitrator is pending against or,
to the Knowledge of Pfizer, threatened in writing against any Seller Corporation
or Conveyed Subsidiary (or Subsidiary of a Conveyed Subsidiary) which would have
a Material Adverse Effect.
Section 5.9. Compliance with Laws. Except with respect to
Environmental Laws (which are the subject of Section 5.11) and Product
Registrations (which are the subject of Section 5.10), and except as to matters
otherwise set forth in the Agreement or set forth in Schedule 5.9:
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(a) each Seller Corporation and each Conveyed Subsidiary (and
Subsidiary of a Conveyed Subsidiary) is in compliance with all Laws applicable
to the ownership or operation of its assets or the Business, except to the
extent that the failure to comply therewith would not have a Material Adverse
Effect; and
(b) each Seller Corporation and each Conveyed Subsidiary (or
Subsidiary of a Conveyed Subsidiary) possesses all Governmental Authorizations
necessary for the conduct of the Business as it is currently conducted, except
where the failure to possess any such Governmental Authorization would not have
a Material Adverse Effect. Schedule 5.9 shall be updated at least 45 days prior
to Closing to disclose the Governmental Authorizations, including Environmental
Permits, held by the Business that, to Pfizer's Knowledge, are not transferable
to Purchaser.
Section 5.10. Product Registrations; Regulatory Compliance. Except
with respect to Environmental Permits (which are the subject of Section 5.11):
(a) Schedule 5.10 sets forth, as of the date hereof, a list of all
Governmental Authorizations granted to Pfizer or any of its Affiliates by or
pending with any Governmental
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Authority in any particular country to market any product of the Business (the
"Product Registrations");
(b) to the Knowledge of Pfizer, all products sold under the Product
Registrations are manufactured and marketed in accordance with the
specifications and standards contained in such Product Registrations, except
where the failure to comply therewith would not, in the aggregate, have a
Material Adverse Effect; and
(c) an Asset Selling Corporation or Conveyed Subsidiary (or a
Subsidiary of a Conveyed Subsidiary) is the sole and exclusive owner of the
Product Registrations and has not granted any right of reference with respect
thereto.
Section 5.11. Environmental Matters. To the Knowledge of Pfizer, and
except as set forth in Schedule 5.11:
(a) the Facilities, each Seller Corporation and each Conveyed
Subsidiary (and each Subsidiary of a Conveyed Subsidiary) are in compliance with
all applicable Environmental Laws and/or Environmental Permits, and none are
undertaking, nor have Pfizer or any of them received notice that they are
subject to, Remedial Action or enforcement action under any or all applicable
Environmental Laws and/or Environmental Permits, except for such non-compliance,
Remedial Actions or enforcement actions that would not have a Material Adverse
Effect;
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(b) each Seller Corporation and each Conveyed Subsidiary (and each
Subsidiary of a Conveyed Subsidiary) has obtained all Environmental Permits
required under all applicable Environmental Laws in relation to the Business;
(c) no claims have been made or threatened that could reasonably be
expected to result in Environmental Liability arising from or as a result of (i)
on-site exposures to Hazardous Substances or Hazardous Materials at the
Facilities, (ii) Releases of Hazardous Substances or Hazardous Materials at or
from any Facilities, (iii) generation, transportation, treatment, storage,
migration or disposal of Hazardous Substances or Hazardous Materials at or from
the Facilities, (iv) the handling of products by employees of others or by the
release of products into the environment as a result of generation,
transportation, treatment, storage, migration or disposal at or from the
Facilities or (v) non-compliance with any Environmental Laws or Environmental
Permits at any of the Facilities; and
(d) Pfizer has made available to the Purchaser during Purchaser's due
diligence review of the Business all material environmental health and safety
audit reports and environmental assessments of the Facilities in the possession
of Pfizer, the
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Conveyed Subsidiaries or a Subsidiary of a Conveyed Subsidiary and any Asset
Selling Corporation.
Section 5.12. Material Contracts.
(a) Except for agreements entered into after the date hereof in
accordance with Section 7.2 or as set forth on Schedule 5.12 (the "Material
Contracts"), none of the Conveyed Subsidiaries (or a Subsidiary of a Conveyed
Subsidiary) nor any Asset Selling Corporation is a party to or bound by:
(i) any contract, agreement or other arrangement for the
purchase of Inventories, or other personal property with any supplier
or for the furnishing of services to the Business extending beyond one
year from the date hereof or the terms of which provide for financial
commitments in excess of $1,000,000;
(ii) any contract, agreement and other arrangement for the
sale of Inventories or for the furnishing of services by the Business
with firm commitments in excess of one year from the date hereof (in
the case of the United States) and three years from the date hereof
(in the case of all other locations);
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(iii) any broker, distributor, dealer, manufacturer's
representative, franchise and agency agreements related to the
Business that is not cancelable on 60 days' notice or less without
financial penalty;
(iv) any contracts and agreements relating to indebtedness
for borrowed money, factoring arrangements, sale and leaseback
transactions and deferred purchase price of property or other similar
financial arrangement relating to the Business with respect to which a
Conveyed Subsidiary (or a Subsidiary of the Conveyed Subsidiary) or
Asset Selling Corporation is an obligor in excess of $1,000,000;
(v) any patent or technology or trademark licenses or
agreements or research and development or design agreements relating
to the Business the terms of which provide for aggregate commitments
to be paid by or to a Conveyed Subsidiary (or a Subsidiary of the
Conveyed Subsidiary) or Asset Selling Corporation in excess of
$100,000; and
(vi) other than intercompany agreements that are not being
assigned to or assumed by Purchaser, all
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agreements entered into since March 1, 1995 providing for (A) the
disposition of any capital stock of any Conveyed Subsidiary (or a
Subsidiary of a Conveyed Subsidiary), or (B) the acquisition or
disposition of any Conveyed Assets or assets of a Conveyed Subsidiary
and having an aggregate value in excess of $2,000,000, other than the
sale of Inventories in the ordinary course of the Business consistent
with past practice or the sale of obsolete equipment.
(b) Except as disclosed in Schedule 5.12, (i) each Material Contract
is valid and binding on the Seller Corporation or Conveyed Subsidiary (or a
Subsidiary of the Conveyed Subsidiary) that is a party thereto, and to the
Knowledge of Pfizer, the other party thereto, and is in full force and effect,
and (ii) no Asset Selling Corporation or Conveyed Subsidiary (or a Subsidiary of
a Conveyed Subsidiary) is in breach of, or default under, any such Material
Contract, which breach or default would result in a Material Adverse Effect.
Section 5.13. Intellectual Property.
(a) Schedule 5.13 sets forth a list of all material Intellectual
Property owned by or licensed to any Conveyed Subsidiary (or a Subsidiary of a
Conveyed Subsidiary) or Asset Selling Corporation and which are used in
connection with the
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Business, all of which will be transferred to Purchaser on the Closing Date,
subject to obtaining the consents referred to in Schedule 5.4. Except as set
forth in Schedule 5.13(a), (i) to the Knowledge of Pfizer, there is no notice of
any objection or claim being asserted in writing by any Person with respect to
the ownership, validity or enforceability of any Intellectual Property used in
the Business, (ii) a Conveyed Subsidiary (or a Subsidiary of a Conveyed
Subsidiary) or an Asset Selling Corporation owns, controls, or licenses such
Intellectual Property and (iii) such Intellectual Property is, to the Knowledge
of Pfizer, free and clear of any Liens, other than Permitted Encumbrances.
(b) To the Knowledge of Pfizer, except as disclosed in Schedule
5.13(b), (i) with respect to the Business no Conveyed Subsidiary (or a
Subsidiary of any Conveyed Subsidiary) or Asset Selling Corporation has received
a claim in writing asserting that the use of the Intellectual Property in the
operation of the Business infringes rights of any third party and (ii) there are
no pending opposition, interference, arbitration, invalidity, declaratory
judgment, revocation, nullity or similar actions in respect of any Patent Rights
or copyrights used in the Business conducted by a Conveyed Subsidiary (or a
Subsidiary of any Conveyed Subsidiary) or Asset Selling Corporation and there
are no pending opposition,
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revocation or cancellation proceedings in respect of any Trademark Rights owned
by a Conveyed Subsidiary (or a Subsidiary of any Conveyed Subsidiary) or Asset
Selling Corporation.
Section 5.14. Real Property.
(a) Schedule 5.14(a) sets forth a description of all of the real
property owned in fee by any of the Asset Selling Corporations or the Conveyed
Subsidiaries (or a Subsidiary of any Conveyed Subsidiary) and used primarily in
connection with the Business and at least 45 days prior to Closing will set
forth a description of any title insurance policies and surveys related thereto
(collectively, the "Real Property"). Each Asset Selling Corporation and Conveyed
Subsidiary (or a Subsidiary of a Conveyed Subsidiary) has good title to its Real
Property, free and clear of any Liens, other than Permitted Encumbrances.
(b) Schedule 2.2(a) sets forth a list of all of the Real Property
Leases and all leasehold interests of the Conveyed Subsidiaries (and their
Subsidiaries) in real property. Each Asset Selling Corporation has a valid
leasehold interest in its Real Property Leases and each Conveyed Subsidiary (or
a Subsidiary of a Conveyed Subsidiary) has a valid leasehold interest in its
real property subject to lease, in either case except for Permitted
Encumbrances.
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(c) Except as set forth in Schedule 5.14(c), no Real Property is
subject to any lease, sublease, license or other agreement granting to any
person or entity any right to the use, occupancy or enjoyment of such Real
Property or any portion thereof.
Section 5.15. Assets. Except as set forth on Schedule 5.15 or as
otherwise provided in this Agreement, each Asset Selling Corporation owns,
leases or has the legal right to use all of its Conveyed Assets (other than
Intellectual Property and Real Property, which are the subject of Sections 5.13
and 5.14, respectively) and each Conveyed Subsidiary (or a Subsidiary of a
Conveyed Subsidiary) owns, leases or has the legal right to use its assets
(other than Intellectual Property and Real Property, which are the subject of
Sections 5.13 and 5.14, respectively). Except as disclosed on Schedule 5.15,
each Asset Selling Corporation has good title to (or in the case of leased
Conveyed Assets, valid leasehold interests in) all its Conveyed Assets (other
than Intellectual Property and Real Property, which are the subject of Sections
5.13 and 5.14, respectively) and each Conveyed Subsidiary (or a Subsidiary of
any Conveyed Subsidiary) has good title to (or in the case of leased assets, a
valid leasehold interest in) its assets, in either case except for Permitted
Encumbrances. The Conveyed Assets, without giving effect to the Excluded Assets
and the Excluded Liabilities, the
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assets held by Conveyed Subsidiaries (or a Subsidiary of any Conveyed
Subsidiary) as of the date hereof and those assets used by the Business which
are to be retained by Pfizer and its Affiliates but made available to Purchaser
pursuant to an agreement executed and delivered at the Closing, constitute all
the properties, assets and rights sufficient to conduct the Business in all
material respects as conducted as of the date of this Agreement.
Section 5.16. Taxes. (a) All material Tax Returns that are required to
be filed on or before the date hereof by or on behalf of each Conveyed
Subsidiary, its Subsidiaries and the Asset Selling Corporations have been filed
and (b) all Taxes shown to be due and payable on such Tax Returns have been
paid. To the Knowledge of Pfizer, there are no Liens for Taxes upon any of the
assets of the Business, except for Liens for Taxes not yet due and payable or
being contested in good faith. To the Knowledge of Pfizer, except as set forth
on Schedule 5.16, no Tax Return that includes any Conveyed Subsidiary, any
Subsidiaries of a Conveyed Subsidiary or any of the Asset Selling Corporations
(to the extent related to the Business) is currently being examined by any
taxing authority and there are no outstanding agreements or waivers extending
the statute of limitations applicable to any such Tax Return (in the case of any
Asset Selling Corporation, to the extent related to the
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Business). No election has been made by Pfizer with respect to the Conveyed
Subsidiaries, their Subsidiaries, or the Asset Selling Corporations which would
result in Purchaser taking a carryover basis for U.S. federal income tax
purposes in any of the Conveyed Assets or any of the assets which Purchaser
acquires from the Conveyed Subsidiaries and their Subsidiaries by purchase or
deemed purchase.
Section 5.17. Employee Benefits.
(a) Set forth on Schedule 7.5(a) is a list of each Plan in effect as
of the date of this Agreement.
(b) As applicable with respect to each Plan, Pfizer has made or will
make available to Purchaser, copies of (i) each Plan, including all amendments
thereto, (ii) the current summary plan description and each summary of material
modifications thereto and (iii) the most recent IRS determination letter.
(c) To the Knowledge of Pfizer, each Plan has been maintained,
operated and administered in compliance in all material respects with its terms
and the applicable provisions of ERISA and the Code, except where such
noncompliance would not have a Material Adverse Effect.
(d) To the Knowledge of Pfizer, each Foreign Plan has been maintained,
operated and administered in compliance in all material respects with its terms
and the applicable Laws of the
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relevant jurisdiction, except where such noncompliance would not have a Material
Adverse Effect.
(e) With respect to each Plan that is an "employee pension benefit
plan" as defined in Section 3(2) of ERISA (each a "Pension Plan"), the IRS has
issued a favorable determination letter with respect to the qualification under
the Code of each Pension Plan and the IRS has not taken any action to revoke any
such letter.
(f) No event has occurred, or, to Pfizer's Knowledge, is threatened or
about to occur, which would constitute a reportable event (for which the notice
requirement has not been waived) within the meaning of Section 4043(b) of ERISA
with respect to any Pension Plan.
(g) To Pfizer's Knowledge, no material Liability has been or is
expected to be incurred by Seller Corporations or their Affiliates under or
pursuant to Title I or IV of ERISA or the penalty, excise tax or joint and
several Liability provisions of the Code or ERISA applicable to the Plans and no
material event, transaction or condition has occurred or exists that would
reasonably be expected to result in any such Liability to the Conveyed
Subsidiaries, Subsidiaries of the Conveyed Subsidiaries, the Conveyed Assets, or
following the Closing, the Purchaser. The Conveyed Subsidiaries, the
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Subsidiaries of the Conveyed Subsidiaries or the Conveyed Assets are not subject
to any Lien in favor of, or enforceable by, the PBGC.
(h) With respect to the Rutherford Hourly Paid Pension Plan (the
"Rutherford Plan") and its trust thereunder: (i) such plan has been maintained
in compliance with the minimum funding standards of ERISA and the Code, no
"accumulated funding deficiency" as such term is defined in Section 412 of the
Code and 302(a) of ERISA (whether or not waived) has been incurred, and no
liability to the PBGC has been incurred; (ii) neither any Seller Corporation nor
any Conveyed Subsidiary or Subsidiary of a Conveyed Subsidiary has sought or
received a waiver of its funding requirements with respect to such plan, and all
contributions payable with respect to such plan have been timely made; (iii) no
liability under Title IV of ERISA has been incurred by any Seller Corporation,
Conveyed Subsidiary or Subsidiary of a Conveyed Subsidiary that has not been
satisfied in full, no condition exists that could reasonably be expected to
result in any Seller Corporation, Conveyed Subsidiary or Subsidiary of a
Conveyed Subsidiary incurring a liability under such Title, and no proceeding
has been initiated by the PBGC to terminate or appoint a trustee to administer
such plan; and (iv) the present value of the Projected Benefit Obligation
("PBO"), determined using the actuarial assumptions established by Pfizer
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under Financial Accounting Standard No. 87 as in effect on the date of
determination, does not as of the date hereof and will not as of the Closing
Date exceed the fair market value of the assets (which for this purpose shall
not include any accrued but unpaid contributions) of such plan.
Section 5.18. Brokers. Except for Morgan Stanley & Co. Incorporated
and Lazard Freres & Co. LLC, no broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Pfizer. Pfizer is solely responsible for the fees and expenses of
Morgan Stanley & Co. Incorporated and Lazard Freres & Co. LLC.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Pfizer as follows:
Section 6.1. Organization and Qualification. Purchaser is a
corporation duly organized, validly existing and in good standing under the Laws
of the jurisdiction of its incorporation.
Section 6.2. Corporate Authorization. Purchaser has all requisite
corporate power and authority to execute and
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deliver this Agreement, and to perform its obligations hereunder. The execution,
delivery and performance by Purchaser of this Agreement have been duly
authorized by all requisite corporate action on the part of Purchaser and no
other corporate proceedings on the part of Purchaser are required in connection
with the execution, delivery and performance by Purchaser of this Agreement.
Section 6.3. Binding Effect. This Agreement constitutes a valid and
legally binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally or by general principles of equity (regardless or whether
enforcement is sought in a proceeding in equity or law).
Section 6.4. Non-Contravention. The execution, delivery and
performance by Purchaser of this Agreement, and the consummation of the
transactions contemplated hereby, do not and will not (i) violate any provision
of the certificate of incorporation, bylaws or other organizational documents of
Purchaser, or (ii) assuming compliance with the matters set forth in Sections
5.5 and 6.5, violate or result in a breach of or constitute a default under any
Law or other restriction of any Governmental Authority to which Purchaser is
subject.
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Section 6.5. Purchaser Consents and Approvals. Except as set forth in
Schedule 6.5, the execution and delivery of this Agreement by Purchaser do not
and will not require any material consent or approval of any Governmental
Authority.
Section 6.6. Financial Capability. On the Closing Date, Purchaser will
have sufficient funds to make the Aggregate Payment on the terms and conditions
contemplated by this Agreement.
Section 6.7. Securities Act. Purchaser is acquiring the Shares solely
for the purpose of investment and not with a view to, or for sale in connection
with, any distribution thereof in violation of the Securities Act. Purchaser
acknowledges that the Shares are not registered under the Securities Act, any
applicable state securities Law or any applicable foreign securities Laws, and
that such Shares may not be transferred or sold except pursuant to the
registration provisions of such Securities Act or applicable foreign securities
Laws or pursuant to an applicable exemption therefrom and pursuant to state
securities Laws as applicable.
Section 6.8. Condition of Business. Purchaser is purchasing the Shares
and the Conveyed Assets based solely on the results of its inspections and
investigations, and not on any representation or warranty of the Seller
Corporations not expressly set forth in this Agreement. In light of these
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inspections and investigations and the representations and warranties made to
Purchaser by Pfizer in Article V hereof, Purchaser is relinquishing any right to
any claim based on any representations and warranties other than those
specifically included in Article V hereof. Any claims Purchaser may have for
breach of representation or warranty shall be based solely on the
representations and warranties of Pfizer set forth in Article V hereof. All
warranties of habitability, merchantability and fitness for any particular
purpose, and all other warranties arising under the Uniform Commercial Code (or
similar foreign laws), are hereby waived by Purchaser. In addition, without
limitation, Purchaser acknowledges that the Seller Corporations make no
representation or warranty of any kind as to the state of Year 2000 compliance
of the computer systems or software of the Business or of any of the Seller
Corporations or those of any customer of or supplier, consultant or service
provider to the Business. Purchaser further represents that neither any of the
Seller Corporations nor any other Person has made any representation or
warranty, express or implied, as to the accuracy or completeness of any
information regarding any of the Seller Corporations, the Business, the Conveyed
Subsidiaries, the Shares, the Conveyed Assets or the Assumed Liabilities not
expressly set forth in this Agreement, and neither Pfizer nor any other Person
will have or be subject
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to any liability to Purchaser or any other Person resulting from the
distribution to Purchaser or its representatives or Purchaser's use of, any such
information, including, without limitation, any confidential memoranda
distributed on behalf of Pfizer relating to the Business or other publication
provided to Purchaser or its representatives, or any other document or
information provided to Purchaser or its representatives in connection with the
sale of the Business.
Section 6.9. Brokers. Except for Goldman, Sachs & Co., no broker,
finder or investment banker is entitled to any brokerage, finder's or other fee
or commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Purchaser. Purchaser is solely
responsible for the fees and expenses of Goldman, Sachs & Co.
ARTICLE VII
COVENANTS
Section 7.1. Information and Documents. From and after the date hereof
and pending Closing, upon reasonable advance notice, the Seller Corporations
shall permit Purchaser and its representatives to have access, during regular
business hours, to the Facilities, assets, employees, books and records of the
Selling Corporations and the Conveyed Subsidiaries and their Subsidiaries
relating to the Business, and shall furnish,
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or cause to be furnished, to Purchaser, such financial, tax and operating data
(including independent accountants' work papers with respect to the audited
financial statements of the Business, subject to Purchaser's or its
representatives' execution of standard industry practice work papers access
letters and foreign accounting rules and customary practices) and other
available information with respect to the Business as Purchaser shall from time
to time reasonably request; provided, that no such access shall unreasonably
interfere with the Selling Corporations' and the Conveyed Subsidiaries' and
their Subsidiaries' operation of their respective businesses, including, without
limitation, the Business; provided further, that all information received by
Purchaser and given by or on behalf of the Seller Corporations, or the Conveyed
Subsidiaries and their Subsidiaries in connection with this Agreement and the
transactions contemplated hereby will be held by Purchaser and its Affiliates,
agents and representatives as Information, as defined in, and pursuant to the
terms of, the Confidentiality Agreement. Pfizer shall, at the reasonable request
of Purchaser, provide assistance to Purchaser in its preparation of a narrative
description of the historical results of operations and financial condition of
the Business for purposes of arranging the financing necessary to effect the
Closing hereunder. Purchaser acknowledges that it alone bears
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responsibility for the contents and use of any such narrative description and
Pfizer shall have no responsibility or liability resulting therefrom. Purchaser
agrees that any such narrative description furnished to prospective lenders or
other third parties shall clearly disclose that neither Pfizer nor any of its
Affiliates assume responsibility for the accuracy of such narrative description
or shall have any liability resulting therefrom.
Section 7.2. Conduct of Business. From and after the date hereof and
to the Closing, except as otherwise specifically contemplated by this Agreement
or as Purchaser shall otherwise consent in writing, which consent shall not be
unreasonably withheld, Pfizer agrees that it will conduct the Business, and will
cause the Business to be conducted, in the ordinary and usual course consistent
with past practice, and use its reasonable best efforts to preserve intact the
Business and related relationships with customers, suppliers and other third
parties and keep available the services of the present Employees. From and after
the date hereof and to the Closing, except as otherwise specifically
contemplated by this Agreement, as Purchaser shall otherwise consent in writing,
which consent shall not be unreasonably withheld, and except as may be necessary
or advisable, in the sole discretion of Pfizer, to remove the Excluded Assets
and except for the internal
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reorganization and refinancing matters as described in Schedule 7.2 and except
for the execution of third party foreign exchange hedging contracts with a
notional value not to exceed $300,000,000 and a duration not to exceed ninety
(90) days to replace intercompany arrangements, Pfizer covenants and agrees that
it shall cause the Conveyed Subsidiaries and their Subsidiaries and the Asset
Selling Corporations, in each case with respect to the Business, to:
(a) maintain insurance coverage at levels consistent with presently
existing levels so long as such insurance is available at commercially
reasonable rates;
(b) not incur, create or assume any Lien with respect to any asset
other than Permitted Encumbrances;
(c) not acquire or dispose of any assets outside of the ordinary
course of business consistent with past practice;
(d) not amend any term of, or waive any right under, any Material
Contract or enter into any contract, agreement or other arrangement of the type
referenced in Section 5.12(a)(i)-(vi);
(e) not change or amend the charter or bylaws of any Conveyed
Subsidiary (or a Subsidiary of any Conveyed Subsidiary);
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(f) not issue, sell, pledge, transfer, repurchase or redeem or propose
to issue, sell, pledge, transfer, repurchase or redeem any shares of capital
stock of any Conveyed Subsidiary (or a Subsidiary of any Conveyed Subsidiary),
or securities convertible into or exchangeable or exercisable for, or options
with respect to, or warrants to purchase or rights to subscribe for, shares of
capital stock of any Conveyed Subsidiary (or a Subsidiary of any Conveyed
Subsidiary);
(g) not settle any litigation listed on Schedule 2.2(m); and
(h) not agree to take any of the foregoing actions.
Section 7.3. Reasonable Best Efforts; Certain Governmental Matters;
Goldman Commitment Letter.
(a) Upon the terms and subject to the conditions herein provided
(including, without limitation, Section 2.3 hereof), each of the parties hereto
agrees to use its reasonable best efforts to take, or cause to be taken, all
action and to do, or cause to be done, all things necessary for it to do under
applicable Laws to consummate and make effective the transactions contemplated
by this Agreement, including, without limitation, (i) to comply promptly with
all legal requirements which may be imposed on it with respect to this Agreement
and the transactions contemplated hereby (which actions shall
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include, without limitation, furnishing all information required by applicable
Law in connection with approvals of or filings with any Governmental Authority),
(ii) to satisfy the conditions precedent to the obligations of such party
hereto, (iii) to obtain any consent, authorization, order or approval of, or any
exemption by, any Governmental Authority or other public or private third party
required to be obtained or made by Purchaser, the Seller Corporations or the
Conveyed Subsidiaries or any of their respective Subsidiaries in connection with
the acquisition of the Shares and the Conveyed Assets or the taking of any
action contemplated by this Agreement, (iv) to effect all necessary
registrations and filings including, without limitation, all materials required
under Environmental Laws and all transfer requests required for Environmental
Permits and to provide copies of all such documents to Purchaser, and (v) to
take any action reasonably necessary vigorously to defend, lift, mitigate,
rescind the effect of any litigation or administrative proceeding adversely
affecting the acquisition of the Shares and the Conveyed Assets or this
Agreement, including promptly appealing any adverse court or administrative
decision.
(b) Subject to appropriate confidentiality protections and applicable
Law, each of the parties hereto will furnish to the other party such necessary
information and reasonable assistance as such other party may reasonably request
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in connection with the foregoing and will provide the other party with copies of
all filings made by such party with any Governmental Authority and, upon
request, any other information supplied by such party to a Governmental
Authority in connection with this Agreement and the transactions contemplated
hereby.
(c) Without limiting the generality of the undertakings pursuant to
this Section 7.3, Purchaser and Pfizer agree to take or cause to be taken the
following actions: (i) provide promptly to Governmental Authorities with
regulatory jurisdiction over enforcement of any applicable Competition Laws
("Governmental Antitrust Entity") information and documents requested by any
Government Antitrust Entity or necessary, proper or advisable to permit
consummation of the acquisition of the Shares and the Conveyed Assets and the
transactions contemplated by this Agreement; (ii) without in any way limiting
the other provisions of this Section 7.3, file any notification and report form
and related material required under the HSR Act as soon as practicable and in
any event not later than ten (10) Business Days after the date hereof, and
thereafter use its reasonable efforts to certify as soon as practicable its
substantial compliance with any requests for additional information or
documentary material that may be made under the HSR Act; and (iii) Purchaser
shall take promptly, in the event that any permanent or preliminary injunction
or other order is
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entered or becomes reasonably foreseeable to be entered in any proceeding that
would make consummation of the acquisition of the Shares and the Conveyed Assets
and the transactions contemplated hereby in accordance with the terms of this
Agreement unlawful or that would prevent or delay consummation of the
acquisition of the Shares and the Conveyed Assets or the other transactions
contemplated by this Agreement, any and all steps (including the appeal thereof
or the posting of a bond) necessary to vacate, modify or suspend such injunction
or order so as to permit such consummation on a schedule as close as possible to
that contemplated by this Agreement; provided, however, that nothing in this
Section 7.3 or otherwise in this Agreement shall require the proffer by either
party of its willingness to (A) sell or otherwise dispose of, or hold separate
and agree to sell or otherwise dispose of specific assets or categories of
assets or businesses of the Conveyed Subsidiaries and the Conveyed Assets or any
of such party's other assets or businesses, (B) terminate any existing
relationships and contractual rights and obligations or (C) amend or terminate
such existing licenses or other intellectual property agreements and to enter
into such new licenses or other intellectual property agreements. Each of Pfizer
and the Purchaser will provide to the other copies of all correspondence between
it (or its advisor) and any Government Antitrust Entity
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relating to the acquisition of the Shares and the Conveyed Assets or any of the
matters described in this Section 7.3. Pfizer and the Purchaser agree that all
telephone calls and meetings with a Government Antitrust Entity regarding the
acquisition of the Shares and the Conveyed Assets or any of the matters
described in this Section 7.3 shall include representatives of Pfizer and the
Purchaser.
(d) Purchaser shall use its best efforts to cause the conditions to
funding under the Goldman Commitment Letter to be satisfied and to satisfy the
condition set forth in Section 4.2(c).
(e) In the event an approval or action of a Governmental Authority
(other than a Governmental Authority of the United States of America, Ireland,
Germany, Austria, France or Switzerland (or any state or subdivision thereof))
having jurisdiction that is necessary to lawfully consummate the transactions
contemplated hereby is not obtained on or prior to the Closing Date, Pfizer and
the Purchaser agree to effect Closing (including payment of the total Aggregate
Payment and Aggregate Purchase Price), subject to the terms of this Agreement,
with respect to all Conveyed Assets and Assumed Liabilities outside of the
jurisdiction of any such Governmental Authority; provided, however, that the
obligations of the
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parties hereto set forth in this Section 7.3 shall continue with respect to any
such approval or action until such approval or action is obtained or taken, as
the case may be, and upon the occurrence of such approval or action, the parties
hereto shall effect transfer of the affected Conveyed Subsidiaries, Conveyed
Assets and Assumed Liabilities in accordance with the Foreign Implementing
Agreements for the jurisdictions relating thereto. As of the Closing Date,
Pfizer and the Purchaser shall, subject to applicable Law, enter into mutually
agreeable alternative business arrangements consistent with the terms of this
Agreement or other arrangements which provide Purchaser with the net economic
benefit or loss of the affected Conveyed Subsidiaries and Conveyed Assets from
and after the Closing Date and continuing until any such approval or action is
obtained or taken.
Section 7.4. Tax Matters.
(a) (i) Preparation and Filing of Tax Returns. Pfizer shall prepare
and timely file or shall cause to be prepared and timely filed all Federal,
state, local and foreign Tax Returns in respect of the Conveyed Subsidiaries,
their Subsidiaries and the Asset Selling Corporations, their assets or
activities that (i) are required to be filed (taking into account extensions) on
or before the Closing Date, or (ii) are required to be filed (taking into
account extensions) after the
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Closing Date and (A) are Consolidated Tax Returns of Pfizer and its Affiliates,
or (B) are with respect to Income Taxes and are required to be filed on a
separate Tax Return basis for any tax period ending on or before the Closing
Date, or (C) are to be filed by an Asset Selling Corporation. Purchaser shall
prepare or cause to be prepared and shall file or cause to be filed all other
Tax Returns required of the Conveyed Subsidiaries and their Subsidiaries, or in
respect of their assets or activities or required to be filed after the Closing
Date with respect to the Conveyed Assets or the Business. In the event the
Closing Date is on or before November 30, 1998, any such Tax Returns that
include periods ending on or before the Closing Date or that include the
activities of the Conveyed Subsidiaries or their Subsidiaries or an Asset
Selling Corporation (with respect to the Business) prior to the Closing Date
shall, insofar as they relate to the Conveyed Subsidiaries or their Subsidiaries
or an Asset Selling Corporation (with respect to the Business) prior to the
Closing Date, be on a basis consistent with the last previous such Tax Returns
filed in respect of the Conveyed Subsidiaries or their Subsidiaries or such
Asset Selling Corporation (with respect to the Business), unless Pfizer or
Purchaser, as the case may be, concludes that there is no reasonable basis for
such position. In the event that the Closing Date is after November 30, 1998,
Purchaser may file any
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Tax Return required by this Section 7.4(a)(i) for any Conveyed Subsidiary or any
of its Subsidiaries on a basis inconsistent with the last previous Tax Return
filed for such Conveyed Subsidiary or any of its Subsidiaries (as the case may
be) provided that there is a reasonable basis for such inconsistent position and
Pfizer consents to such inconsistent position (which consent shall not be
unreasonably withheld). With respect to any Tax Return required to be filed by
the Purchaser for a taxable period that includes (but does not end on) the
Closing Date (a "Straddle Period"), the Purchaser shall deliver, at least 30
days prior to the due date for the filing of such Tax Return (taking into
account extensions), to Pfizer a statement setting forth the amount of Tax for
which Pfizer is responsible pursuant to Section 7.4(g)(i) and (iii) and copies
of such Tax Return. Pfizer shall have the right to review such Tax Return and
the statement prior to the filing of such Tax Return. Pfizer and the Purchaser
agree to consult and resolve in good faith any issue arising as a result of the
review of such Tax Return and statement and mutually to consent to the filing as
promptly as possible of such Tax Return. Neither Purchaser nor any of its
Affiliates shall file any amended Tax Returns for any periods for or in respect
of the Conveyed Subsidiaries or any of their Subsidiaries with respect to which
Purchaser is not obligated to prepare or cause to be prepared
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the original such Tax Returns pursuant to this Section 7.4(a)(i) without the
prior written consent of Pfizer. Notwithstanding any provision of this
Agreement, Purchaser may, at its option, make an election under Section 338(g)
of the Code with respect to its purchase or deemed purchase of any of the
Conveyed Subsidiaries and their Subsidiaries other than Howmedica Leibinger
Inc., in which event Purchaser shall be solely responsible for preparing the
separate return for any U.S. corporation reflecting the consequences of such
election, and shall be responsible for and shall pay, any and all Taxes
resulting from such election and shall indemnify Pfizer (in the manner provided
herein) with respect to such Taxes. Notwithstanding the foregoing, if Purchaser
makes such election with respect to Howmedica Iberica S.A. or Jaquet Orthopedie
S.A., Pfizer shall be responsible for and shall pay any and all Taxes resulting
from such election and shall indemnify Purchaser (in the manner provided herein)
with respect to such Taxes.
(ii) Check-The-Box Election. Pfizer shall cause an election
pursuant to Treasury Regulations Section 301.7701-3 to be filed,
effective from a date at least 10 days prior to the Closing Date, for
those of the Conveyed Subsidiaries or their Subsidiaries listed on
Schedule 7.4 which are not United States entities to be treated as a
branch for U.S. federal
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income tax purposes, and to undertake any restructuring (including any
acquisition of minority interests in any of such Conveyed Subsidiaries
or the Subsidiaries) as outlined in Schedule 7.2 necessary or
advisable, in Pfizer's sole discretion, to effect such election.
(iii) Section 338(h)(10) Election. Pfizer and Purchaser
agree that an election shall be jointly made by Pfizer and Purchaser
pursuant to Section 338(h)(10) of the Code with respect to the
acquisition by Purchaser of the stock of Howmedica Leibinger Inc.,
provided that such election does not result in a Tax detriment to
Purchaser. Pfizer shall be solely responsible for, and shall pay, any
and all Taxes resulting from such election and shall indemnify
Purchaser (in the manner provided herein) with respect to such Taxes.
(b) Payment of Taxes. Except for taxes that are accrued or reserved
against in the Working Capital Statement, Pfizer shall pay or cause to be paid
(A) all Taxes due with respect to Tax Returns which Pfizer is obligated to
prepare and file or cause to be prepared and filed pursuant to Section 7.4(a),
(B) all Taxes due with respect to Tax Returns for
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Straddle Periods for which Pfizer is responsible pursuant to Section 7.4(g)(i).
Purchaser shall pay or cause to be paid (A) all Income Taxes due with respect to
separate Tax Returns which Purchaser is obligated to prepare and file or cause
to be prepared and filed pursuant to Section 7.4(a) other than Taxes which
Pfizer shall pay or cause to be paid in accordance with the preceding sentence
and (B) all Taxes owed by the Conveyed Subsidiaries or their Subsidiaries other
than Taxes which Pfizer shall pay or cause to be paid in accordance with the
preceding sentence.
(c) Tax Sharing Agreements. Schedule 7.4(c) lists all Tax sharing
agreements and arrangements other than those prescribed by statute or
regulations between (i) the Conveyed Subsidiaries or any of their Subsidiaries,
on the one hand, and (ii) Pfizer or any of its Subsidiaries or Affiliates (other
than the Conveyed Subsidiaries and their Subsidiaries), on the other hand. On
the Closing Date, all such Tax sharing agreements and arrangements shall be
terminated effective as of the close of the Closing Date and have no further
effect for any taxable year or period (whether a past, present or future year or
period), and no additional payments shall be made thereunder with respect to any
period after the Closing Date in respect of a redetermination of tax liabilities
or otherwise.
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(d) Carryforwards and Carrybacks. Purchaser shall cause the Conveyed
Subsidiaries and their Subsidiaries to elect, when permitted by law, to carry
forward any net operating loss, net capital loss, foreign tax credit, research
and development credit, or other item or credit arising after the Closing Date
that could, in the absence of such an election, be carried back to a taxable
period of the Conveyed Subsidiaries or any of their Subsidiaries that ends on or
before the Closing Date or that includes the Closing Date, provided such
election does not preclude Purchaser from recognizing the benefit of any net
operating loss, net capital loss, foreign tax credit, research and development
credit, or other item or credit before it expires under applicable local Tax
law. Purchaser, on its own behalf and on behalf of its Affiliates, hereby waives
any right to use or apply any such net operating loss, net capital loss, foreign
tax credit, research and development credit, or other item or credit of the
Conveyed Subsidiaries or any of their Subsidiaries as such a carryback except as
provided in the preceding sentence. If as required by Law or to prevent the
expiration of the Tax benefits referred to in the preceding sentence any net
operating loss, net capital loss, foreign tax credit, research and development
credit, or any other item or credit of the Conveyed Subsidiaries or any of their
Subsidiaries shall be carried back to any such period, Purchaser shall
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indemnify Pfizer and its Affiliates (other than the Conveyed Subsidiaries or any
of their Subsidiaries) for all reasonable costs and expenses incurred by Pfizer
or any of such Affiliates in filing such claims or in connection with any audit
of such claims.
(e) Refunds. Except for refunds, receivables or credits that are
included in the Working Capital Statement or have reduced Taxes that are accrued
or reserved against in the Working Capital Statement, Pfizer shall be entitled
to retain, or receive prompt payment from Purchaser or any of its Subsidiaries
or Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) of,
any refund or credit with respect to Taxes (including, without limitation,
refunds and credits arising by reason of amended Tax Returns filed after the
Closing Date or otherwise) with respect to any Tax period ending on or before
the Closing Date relating to the Conveyed Subsidiaries, any of their
Subsidiaries or any Asset Selling Corporation, provided, however, that (i)
Purchaser, the Conveyed Subsidiaries and their Subsidiaries shall be entitled to
retain, or receive prompt payment from Pfizer of, any such refund or credit to
the extent that such refund or credit arises as a result of the use or
application (as provided in Section 7.4(d)) of any net operating loss, net
capital loss, foreign tax credit, research and development credit or other item
or credit of the Conveyed
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Subsidiaries or any of their Subsidiaries arising in any tax year ending on any
date following the Closing Date to any period of the Conveyed Subsidiaries or
any of their Subsidiaries that ends on or before the Closing Date or that
includes the Closing Date, and (ii) to the extent that Pfizer or any of its
Affiliates (other than the Conveyed Subsidiaries or any of their Subsidiaries)
incurs any detriment as a result of the carryback by the Conveyed Subsidiaries
or any of their Subsidiaries of any such net operating loss, net capital loss,
foreign tax credit, research and development credit, or other item or credit,
such as, for example, a dilution in the foreign tax credit allowed to Pfizer or
any of its Affiliates (other than the Conveyed Subsidiaries or any of their
Subsidiaries), Pfizer shall be entitled to receive prompt payment from Purchaser
of the refund or credit received or enjoyed by the Purchaser or any of its
Affiliates (including the Conveyed Subsidiaries or their Subsidiaries) as a
result of such carryback. Purchaser, the Conveyed Subsidiaries and their
Subsidiaries shall be entitled to retain, or receive immediate payment from
Pfizer of, any refund or credit not described in Section 7.4(e)(ii) with respect
to Taxes with respect to any taxable period beginning after the Closing Date
relating to any of the Conveyed Subsidiaries and their Subsidiaries. Purchaser
and Pfizer shall equitably apportion any refund or credit with respect to Taxes
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not described in Section 7.4(e)(ii) with respect to a Straddle Period.
(f) Tax Cooperation. Each of Purchaser and Pfizer shall provide the
other party with such information and records and make such of its officers,
directors, employees and agents available as may reasonably be requested by such
other party in connection with the preparation of any Tax Return or any audit or
other proceeding that relates to the Conveyed Subsidiaries, any of their
Subsidiaries or the Asset Selling Corporations. Purchaser shall within the
earlier to occur of sixty (60) days after Pfizer's year-end, and one hundred
twenty (120) days after the Closing Date, prepare or cause the Conveyed
Subsidiaries and their Subsidiaries to prepare, in a manner consistent with the
Conveyed Subsidiary's past practice, the tax work paper preparation package or
packages necessary to enable Pfizer to prepare Tax Returns Pfizer is obligated
to prepare or cause to be prepared.
(g) Tax Indemnification.
(i) Pfizer shall indemnify, defend and hold the Purchaser and its
Affiliates harmless from and against all liability for Taxes of the
Conveyed Subsidiaries, their Subsidiaries and any Asset Selling
Corporation (with respect to the Business) for any
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taxable period that ends on or before the Closing Date and the portion
of any Straddle Period ending on the Closing Date, including, without
limitation (A) all liability for any breach of Pfizer's
representations and warranties contained in Article V, (B) all
liability (as a result of Treasury Regulation Section 1.1502-6(a) or
otherwise) for Income Taxes of Pfizer or any other Person (other than
the Conveyed Subsidiaries or any of their Subsidiaries) which is or
has ever been affiliated with the Conveyed Subsidiaries or any of
their Subsidiaries, or with whom the Conveyed Subsidiaries or any of
their Subsidiaries otherwise joins or has ever joined (or is or has
ever been required to join) in filing any consolidated, combined or
unitary Tax Return, prior to the Closing, (C) all liability for Income
Taxes arising as a result of an election under Section 338(h)(10) of
the Code (or any similar provision of state, local or foreign law)
with respect to the sale or deemed sale of the shares of capital stock
of Howmedica Leibinger Inc., (D) all Tax liability for Subpart F
income includable in the income of Purchaser or its Affiliates
relating to taxable periods and attributable to transactions occurring
on or before
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the Closing Date, and (E) all liability for reasonable legal,
accounting and appraisal fees and expense with respect to any item
described in clause (A), (B), (C) or (D) above; provided, however,
that Pfizer's indemnity obligation for Taxes pursuant to this Section
7.4(g)(i) shall be reduced by refunds of Taxes (excluding carrybacks
from post-Closing Date years to the extent permitted hereunder) with
respect to such periods received after the Closing Date by Purchaser
or any of its Affiliates and not previously remitted to Pfizer.
Notwithstanding the foregoing, and except as provided in the last
sentence of Section 7.4(a)(i), Pfizer shall not indemnify, defend or
hold harmless the Purchaser or any of its Affiliates from any
liability for Taxes attributable (i) to any Code Section 338(g)
election (other than with respect to Howmedica Leibinger Inc. for
which an election under Section 338(h)(10) of the Code will be made)
or (ii) any other action taken or failure to act (which would
otherwise give rise to a Pfizer Tax indemnity payment) after the
Closing by Purchaser, any of its Affiliates (including the Conveyed
Subsidiaries or any of their Subsidiaries), or any transferee of
Purchaser or any of its Affiliates (other than any such action
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expressly required or otherwise expressly contemplated by this
Agreement or with the written consent of Pfizer) (a "Purchaser Tax
Act") or (ii) to the extent accrued or reserved against in the Working
Capital Statement. Further, Pfizer's obligation to indemnify, defend
or hold harmless the Purchaser or any of its Affiliates from any
liability shall terminate effective with the expiration of the
applicable statute of limitations (including extensions) in respect of
such liability.
(ii) Purchaser shall, and shall cause the Conveyed
Subsidiaries and each of their Subsidiaries to, indemnify, defend and
hold Pfizer and its Affiliates harmless from and against, (A) except
to the extent Pfizer is otherwise required to indemnify Purchaser for
such Tax pursuant to Section 7.4(g)(i), all liability for Taxes of the
Conveyed Subsidiaries and their Subsidiaries, (B) all liability for
Taxes attributable to a Purchaser Tax Act, (C) except as provided in
the last sentence of Section 7.4(a)(i), all liability for Taxes
resulting from Purchaser making an election under Section 338(g) of
the Code with respect to its purchase or deemed purchase of any
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of the Conveyed Subsidiaries and their Subsidiaries, other than
Howmedica Leibinger Inc. for which an election under Section
338(h)(10) of the Code will be made, (D) all Tax liability for Subpart
F income includable in the income of Pfizer or its Affiliates relating
to taxable periods and attributable to transactions occurring after
the Closing Date, and (E) all liability for reasonable legal,
accounting and appraisal fees and expenses with respect to any item
described in clause (A), (B), (C) or (D) above. Purchaser's obligation
to indemnify, defend or hold harmless Pfizer or any of its Affiliates
from any liability shall terminate effective with the expiration of
the applicable statute of limitations (including extensions) in
respect of such liability.
(iii) In the case of any Straddle Period:
(A) The periodic Taxes of the Conveyed Subsidiaries and their
Subsidiaries that are not based on income or receipts (e.g., property Taxes) for
the portion of any Straddle Period ending on the Closing Date (the "Pre-Closing
Tax Period") shall be computed based upon the ratio of the number of days in the
Pre-Closing Tax Period and the number of days in the entire Tax Period; and
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(B) Taxes of the Conveyed Subsidiaries and their Subsidiaries for the
Pre-Closing Tax Period (other than Taxes described in Section 7.4(g)(iii)(A)
above) shall be computed as if such taxable period ended as of the close of
business on the Closing Date, and, in the case of any Taxes of the Conveyed
Subsidiaries and their Subsidiaries attributable to the ownership by the
Conveyed Subsidiaries or any of their Subsidiaries of any equity interest in any
partnership or other "flowthrough" entity, as if a taxable period of such
partnership or other "flowthrough" entity ended as of the close of business on
the Closing Date.
(iv) Any indemnity payment required to be made pursuant to
this Section 7.4(g) shall be paid within thirty (30) days after the
indemnified party makes written demand upon the indemnifying party,
but in no case earlier than five (5) Business Days prior to the date
on which the relevant Taxes are required to be paid to the relevant
taxing authority (including estimated Tax payments).
(h) Timing Adjustment. In the event that a final determination (which
shall include the execution of an IRS Form 870-AD or successor form, or similar
action under the Law of any other Taxing Authority) results in a timing
difference (e.g., an
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acceleration of income or delay of deductions) that would increase Pfizer's
liability for Taxes pursuant to this Section 7.4 or results in a timing
difference (e.g., an acceleration of deductions or delay of income) that would
increase Purchaser's liability for Taxes pursuant to this Section 7.4, Purchaser
or Pfizer, as the case may be, shall promptly make payments to Pfizer or
Purchaser as and when Purchaser or Pfizer, as the case may be, actually realizes
any Tax benefits as a result of such timing difference (or under such other
method for determining the present value of any such anticipated Tax benefits as
agreed to by the parties). Such Tax benefit for federal, state and local Income
Tax purposes shall be computed for any year using the Purchaser's or Pfizer's,
as the case may be, actual tax liability with and without giving effect to such
timing difference.
(i) Tax Contests.
(A) If a claim shall be made by any taxing authority (a "Tax Claim")
which, if successful, might result in an indemnity payment to the Purchaser or
any of its Affiliates pursuant to Section 7.4(g), Purchaser shall promptly
notify Pfizer of such claim; provided, however, that the failure to give such
notice shall not affect the indemnification provided hereunder except to the
extent Pfizer has actually been
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prejudiced as a result of such failure and for this purpose, any failure to give
such notice that results in Pfizer not controlling or participating in any
proceeding shall be deemed to prejudice Pfizer.
(B) With respect to any Tax Claim relating to a taxable period ending
on or before the Closing Date or relating to a Consolidated Tax Return, Pfizer
shall control all proceedings and may make all decisions taken in connection
with such Tax Claim (including selection of counsel) and, without limiting the
foregoing, may in its sole discretion pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with any taxing
authority with respect thereto, and may, in its sole discretion, either pay the
Tax claimed and sue for a refund where applicable law permits such refund suits
or contest the Tax Claim in any permissible manner. Purchaser shall be entitled
to be informed of such Tax Claim within a reasonable time after such Claim is
asserted and the developments with respect to such Tax Claim at any
administrative meeting, conference, hearing or other proceeding. Subject to
contractual obligations existing on the date of this Agreement, Pfizer will not
settle any Tax Claim with regard to the Tax liability of any Conveyed Subsidiary
which would materially adversely affect the continuing Tax liability of such
Conveyed Subsidiary after the Closing Date without prior written
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consent of the Purchaser, which consent shall not be unreasonably withheld.
(C) Except as otherwise provided in Section 7.4(i)(B), Pfizer and
Purchaser shall jointly control and participate in all proceedings taken in
connection with any Tax Claim relating to Taxes of the Conveyed Subsidiaries or
any of their Subsidiaries for any Straddle Period. Neither Pfizer nor Purchaser
shall settle any such Tax Claim without the prior written consent of the other,
which shall not be unreasonably withheld.
(D) Except as otherwise provided in Section 7.4(i)(B), Purchaser shall
control all proceedings with respect to Taxes for any taxable period beginning
after the Closing Date.
(E) Purchaser, the Conveyed Subsidiaries, each of their Subsidiaries
and each of their respective Affiliates, on the one hand, and Pfizer and its
respective Affiliates, on the other, shall cooperate in contesting any Tax
Claim, which cooperation shall include the retention and (upon request) the
provision to the requesting party of records and information which are
reasonably relevant to such Tax Claim, and making employees available on a
mutually convenient basis to provide additional information or explanation of
any material provided
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hereunder or to testify at proceedings relating to such Tax Claim.
Section 7.5. Employees and Employee Benefits.
(a) Employees (US) - Offer of Employment; Continued Employment;
Severance. Purchaser agrees to offer employment as of 12:01 a.m. on the day
immediately following the Closing Date to each Employee (US) (or to cause the
Conveyed Subsidiaries and their Subsidiaries to offer to continue the employment
of each of their Employees (US)) in the same or a comparable position and at a
rate of pay at least equal to such Employee's rate of pay in effect on the
Closing Date and with benefits which shall be substantially comparable to the
employee benefits as are set forth in Schedule 7.5(a), and identical to such
other benefits as are set forth in the Employee Severance Program in Schedule
7.5(a)(i). The benefits set forth in Schedule 7.5(a)(iii) shall be deemed to
satisfy the substantial comparability requirement with respect to benefits for
Employees (US). For purposes of this Section 7.5, references to "pay" shall
include base pay plus any commission, bonus or incentive pay, but excluding
retention and retention/performance allowances. Such employment shall be at a
location within a twenty-five (25) mile radius of the employee's location of
employment as of the Closing Date (which, in the case of a sales employee, shall
mean such employee's sales territory residential base on the Closing
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Date). Schedule 7.5(a)(ii) (which shall be updated by Pfizer on the Closing
Date) shall set forth the name of each Employee (US), and his or her current
rate of pay, position and date of hire. Except to the extent assets have been
transferred to cover the funding or to the extent reflected in the Working
Capital Statement, Purchaser shall have no obligation whatsoever with regard to
(i) former employees of the Business who are retired, or who are not or shall
have ceased to be Employees (US) as of the Closing Date, or (ii) employees who
do not accept the offer of employment or continuation of employment given by the
Purchaser in accordance with this Section 7.5(a) and do not work for Purchaser
or its Affiliates for at least one day, unless such employee is otherwise an
Affected Employee. Purchaser shall be solely responsible for all salaries or
wages (including bonuses, incentive payments and commissions) accruing after the
Closing Date with respect to the Affected Employees. Purchaser may, at its
discretion, change the conditions of employment after the Closing Date except
for (i) the location requirement described in this Section 7.5(a) and (ii) the
pay and benefits comparability requirements described in this Section 7.5(a),
employee separation plan obligations and other benefits described in Schedule
7.5(a)(i), all of which matters shall remain unchanged until the date
immediately following the second anniversary of the Closing Date, provided,
however, that
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Purchaser or its Affiliates may amend any benefit program contained in Schedule
7.5(a)(iii) covering Affected Employees during such two-year period to the same
extent such amendments affect similarly situated employees of Purchaser
generally, or as required by applicable Laws. Notwithstanding the foregoing
sentence, Purchaser or its Affiliates may terminate an Employee (US) during such
two (2) year period due to "Performance-Related Terminations" or "Curtailment or
Cessation of Operations/ Reorganization/Position Elimination" (as those terms
are described in Exhibit E, the Pfizer Employee Separation Plan) as long as
Purchaser or its Affiliates (i) first offers such employee the opportunity to
sign a release agreement in substantially the form attached hereto as Exhibit F
(individual termination) or Exhibit G (group termination), as appropriate, (ii)
pays or otherwise provides severance benefits to such employee in accordance
with Pfizer's Employee Separation Plan and (iii) provides benefits continuation
and other benefits as set forth in Schedule 7.5(a)(i), provided, however, that
Purchaser or its Affiliates may terminate an Employee (US) without paying or
otherwise providing severance benefits to such employee in accordance with such
policy and practice if such employee is terminated, in the reasonable discretion
of Purchaser or its Affiliates, "for cause" (as such term is defined in the
Pfizer Employee Separation Plan). Employees
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shall also be provided credit by the Purchaser for all service with Pfizer and
its Affiliates, to the same extent as such service was credited for such purpose
by Pfizer and its Affiliates, under (x) all employee benefit plans, programs,
policies and fringe benefits of Purchaser described in Schedule 7.5(a)(iii) for
purposes of eligibility, vesting and benefit accrual and (y) severance plans,
programs and policies for purposes of calculating the amount of each such
employee's severance benefits. Nothing herein shall obligate Pfizer, Howmedica,
any Conveyed Subsidiary (or a Subsidiary of any Conveyed Subsidiary) or Asset
Selling Corporation, even if so requested by Purchaser, to terminate, amend or
otherwise modify any Plan, program, policy or other arrangements prior to the
Closing Date. Pfizer shall take no action prior to the Closing which would
increase benefits under any such Plan, program, policy or other arrangements, or
take any action which would impair Purchaser's ability to amend or terminate any
of the foregoing subsequent to the Closing.
(b) Qualified Plans.
(i) Pfizer sponsors the following Plans which are intended
to be qualified under Section 401(a) of the Code (collectively, the
"Pfizer Qualified Plans"): the Pfizer Savings and Investment Plan (the
"Savings Plan") and
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the Pfizer Retirement Annuity Plan (the "Retirement Plan"). Effective
as of the Closing Date, the Seller Corporations shall cause each
Affected Employee who is a participant in one or both Pfizer Qualified
Plans to become one hundred percent (100%) vested in his or her
accrued benefit under each such Plan. In addition, Howmedica sponsors
the Rutherford Plan which is intended to be qualified under Section
401(a) of the Code but which is not included in the definition of
"Pfizer Qualified Plan".
(ii) Effective as of 12:01 a.m. on the day immediately
following the Closing Date, each participant in a Pfizer Qualified
Plan who is an Affected Employee shall cease to be an active
participant under each such Plan, and shall become a participant in
one of the Purchaser Qualified Plans as listed in Schedule 7.5(b)(ii)
(such plans being collectively referred to as the "Purchaser Qualified
Plans"). Purchaser shall ensure that the Purchaser Qualified Plans
will recognize the accrued service of Affected Employees with Pfizer
and its Affiliates up to and including the Closing Date for all
purposes, to the extent credited under the terms of the corresponding
Pfizer Qualified Plan as in effect on the Closing Date. As soon as
practicable after the Closing
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Date, Pfizer shall deliver such accrued service data to Purchaser.
(iii) If Purchaser and Pfizer shall so agree, Pfizer shall
cause, as soon as practicable after the Closing Date, the Savings Plan
to transfer the account balance of each Affected Employee to the
corresponding Purchaser Qualified Plan as of the valuation date next
preceding the date of transfer. In such event, Purchaser, on the one
hand, and Pfizer, on the other hand, each agree to use its best
efforts and to cooperate with the other to effect as promptly as
possible the transfers of assets contemplated under this Section
7.5(b)(iii), subject to Pfizer's receipt of satisfactory evidence that
the Purchaser Qualified Plans are in compliance with all relevant Laws
and Purchaser's receipt of satisfactory evidence that the Savings Plan
is in compliance with all relevant Laws; such evidence shall include,
but not be limited to, a favorable determination letter that considers
the Tax Reform Act of 1986 (a "current determination letter") from the
IRS, if available, and representations satisfactory to Pfizer and
Purchaser, respectively, from the administrators of the Purchaser
Qualified Plans. If a current determination letter has not been
obtained,
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Purchaser and its counsel shall provide a representation that the
Purchaser Qualified Plans are qualified under Section 401(a) of the
Code and that a timely application for a determination letter is
pending and that Purchaser will take all necessary steps to secure a
determination letter.
(iv) Effective as of 12:01 a.m. on the day immediately
following the Closing Date, Purchaser shall adopt and assume the
Rutherford Plan. Pfizer and Purchaser shall cooperate in causing such
steps to be taken as may be necessary to cause Purchaser to be
substituted for Howmedica as the plan sponsor under the Rutherford
Plan, including for purposes of the Collective Bargaining Agreement,
and to succeed to Howmedica under the related trust or other funding
vehicle.
(v) Pfizer will give Purchaser reasonable access to records
of Pfizer necessary to administer the retirement benefits of Affected
Employees transferred to the Purchaser Qualified Plans and will cause
the transfer to Purchaser of all records relating to the Rutherford
Plan.
(c) Accrued Entitlements. To the extent reflected in the Working
Capital Statement, Purchaser shall be responsible
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for all accrued entitlements, including vacation days, for Affected Employees as
of the Closing Date consistent with Pfizer's policy in respect thereof.
(d) Medical and Welfare Plan Obligations. Commencing as of 12:01 a.m.
on the day immediately following the Closing Date, Purchaser shall include the
Affected Employees in the welfare plans listed on Schedule 7.5(a)(iii) and
agrees to waive any waiting periods or limitations for preexisting conditions
under its medical, dental, and short-term and long-term disability plans and
shall ensure that such employees are given credit for any amounts paid toward
deductibles, out-of-pocket limits or other fees on or prior to the Closing Date.
Claims by an Affected Employee for medical and dental services rendered as of
12:01 a.m. on the day immediately following the Closing Date shall be the
responsibility of the medical and dental plans provided by Purchaser to such
employees. Claims incurred for medical and dental services for Affected
Employees rendered prior to and including the Closing Date shall be the
responsibility of the group medical and dental plans of Pfizer or the Seller
Corporation which covered such employees prior to and including the Closing
Date.
(e) Employees (Bargaining Unit). The terms and conditions of
employment of Employees (Bargaining Unit) are
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contained in the agreement between Howmedica and the International Union of
Electronic, Electrical, Salaried, Machine and Furniture Workers, AFL-CIO, Local
485 ("Collective Bargaining Agreement") attached hereto as Exhibit H. Schedule
7.5(e) (which shall be updated by Pfizer on the Closing Date) shall set forth
the name of each Employee (Bargaining Unit), and his or her current rate of pay,
position and date of hire. Purchaser agrees to continue the employment as of
12:01 a.m. on the day immediately following the Closing Date of each Employee
(Bargaining Unit) pursuant to the terms of the Collective Bargaining Agreement.
Except to the extent assets have been transferred to cover the funding or to the
extent reflected in the Working Capital Statement, Purchaser shall have no
obligation whatsoever with regard to (i) former employees of the Business who
are retired, or who are not or shall have ceased to be Employees (Bargaining
Unit) as of the Closing Date, or (ii) employees who do not accept the offer of
employment or continuation of employment given by the Purchaser in accordance
with this Section 7.5(e) and do not work for Purchaser or its Affiliates for at
least one day, unless such employee is otherwise an Affected Employee.
Pfizer and Purchaser shall cooperate in causing such steps to be taken
as may be necessary to enable Purchaser to establish, effective immediately
following the Closing Date, any
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plan required under the terms of the Collective Bargaining Agreement.
(f) Employees (non-US) - Offer of Employment; Continued Employment;
Severance. Purchaser agrees to offer employment as of 12:01 a.m. on the day
immediately following the Closing Date to each Employee (non-US) (or to cause
the Conveyed Subsidiaries and their Subsidiaries to offer to continue the
employment of each of their Employees (non-US)) in the same or a comparable
position and at a rate of pay at least equal to such employee's rate of pay in
effect on the Closing Date. With respect to benefits for Employees (non-US) in
those countries in which Purchaser has similarly situated employees, as of 12:01
a.m. on the day immediately following the Closing Date, Employees (non-US) of
Asset Selling Corporations and Conveyed Subsidiaries (and Subsidiaries of any
Conveyed Subsidiaries) shall be provided with benefits which are substantially
identical to benefits that, as of such date, are provided to similarly situated
employees of Purchaser in the relevant countries as set forth on Schedule
7.5(f). Schedule 7.5(f)(i) (which shall be updated by Pfizer on the Closing
Date) shall set forth the name of each Employee (non-US), current rate of pay,
position, and date of hire. Schedule 7.5(f)(ii) shall set forth the employee
benefit plans covering Employees (non-US) in effect on the Closing Date. Except
to the extent assets have been
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transferred to cover the funding or to the extent reflected in the Working
Capital Statement, Purchaser shall have no obligation whatsoever with regard to
(i) former employees of the Business who are retired, or who are not or shall
have ceased to be Employees (non-US) as of the Closing Date, or (ii) employees
who do not accept the offer of employment or continuation of employment given by
the Purchaser in accordance with this Section 7.5(f) and do not work for
Purchaser or its Affiliates for at least one day, unless such employee is
otherwise an Affected Employee. It is the intention of the parties to this
Agreement to deal with employee matters, including, without limitation, offers
of employment, compensation, benefits, and severance payment and benefit
continuation matters for Employees (non-US) in a manner substantially similar to
the manner in which Employees (US) matters have been dealt with in this Article
VII but without regard to the benefits and programs set forth on Schedule
7.5(a), Schedule 7.5(a)(i) and Schedule 7.5(a)(iii), and as modified to reflect
applicable Laws of the foreign countries and their political subdivisions;
applicable labor agreements; local Pfizer policies, programs and practices; and
established local business custom in similar transactions. For the purposes of
this Section 7.5(f), the substantial comparability standard shall be deemed
satisfied whenever Purchaser provides benefits that are substantially identical
to
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benefits that are provided to similarly situated employees of Purchaser or, in
those cases where Purchaser has no similarly situated employees, are at least at
the level required by applicable Law. Nothing herein shall obligate Pfizer,
Howmedica, any Conveyed Subsidiary (or a Subsidiary of any Conveyed Subsidiary)
or Asset Selling Corporation, even if so requested by Purchaser, to terminate,
amend or otherwise modify any Foreign Plan, program, policy or other
arrangements prior to the Closing Date. Pfizer shall take no action prior to the
Closing which would increase benefits under any such Foreign Plan, program,
policy or other arrangements, or to take any action which would impair
Purchaser's ability to amend or terminate any of the foregoing subsequent to the
Closing.
(g) Employees (US), Employees (Bargaining Unit) and Employees (non-US)
Absent on Disability or Leaves of Absence - Offer of Employment; Continued
Employment; Severance. When an Employee (US) or Employee (non-US) who is, on the
Closing Date, absent due to illness or on short-term disability (including
maternity disability) or workers' compensation seeks to return to active
employment, Purchaser shall offer immediate employment to such employee in the
same or a comparable position to that which the employee occupied before such
absence but only at such time that such employee is medically capable of
performing the essential functions of the position occupied immediately before
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such absence. In addition, immediate employment in the same or comparable
positions will be offered to those Employees (US) and Employees (non-US)
returning from parental, family and medical, and military leaves or other leaves
where return to work is subject to statutory requirements. Such employees,
returning from disability or leaves of absence, will be subject to the same pay,
benefits, severance and all other policies, plans, programs and arrangements as
stipulated in this Article VII for similarly situated Employees (US) and
Employees (non-US) and, in the case of Employees (non-US), as otherwise required
by applicable local law. If an Employee (Bargaining Unit) who is, on the Closing
Date, absent due to illness or on short-term disability (including maternity
disability) or workers' compensation or authorized leave of absence seeks to
return to active employment, such employee's return shall be governed by, and
handled in accordance with, the terms of the Collective Bargaining Agreement.
(h) No Third Party Beneficiaries. Except as expressly provided herein,
nothing contained herein, expressed or implied, is intended to confer upon any
Employee of Seller Corporations or the Conveyed Subsidiaries or their
Subsidiaries any benefits under any benefit plans, programs, policies or other
arrangements, including, but not limited to, severance benefits or right to
employment or continued employment with
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Purchaser or any Affiliate of Purchaser for any period by reason of this
Agreement. In addition, the provisions of this Agreement, in particular this
Article VII, are for the sole benefit of the parties to this Agreement and are
not for the benefit of any third party.
(i) Designation of Purchaser as Successor Employer. Seller
Corporations agree, if requested by Purchaser, to consent to the designation of
Purchaser as successor employer for purposes of employment insurance, payroll
taxes or contribution ratings and payroll credits under state and federal Law
and/or worker compensation contribution premium ratings under applicable state
Law, provided that such designation is not reasonably concluded, by Pfizer, to
be detrimental to Pfizer.
Section 7.6. Certain Dividends, Etc. Notwithstanding any provision
herein to the contrary (including, without limitation, Section 7.2 hereof), each
Conveyed Subsidiary or any Subsidiary of a Conveyed Subsidiary will be permitted
to distribute to Pfizer or any one or more of its designated Affiliates,
effective as of the Closing Date, up to the amount of its retained earnings
accrued through the Closing Date, but not in excess of cash on hand and in no
event to be effected through any additional borrowings from Pfizer, any of its
Affiliates or any third person. In addition, Pfizer and its
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Affiliates shall be permitted to continue to conduct their activities regarding
cash management matters relating to the Business (including, without limitation,
the collection and transfer of accounts receivable and disbursement of funds by
Pfizer) in accordance with the practice in effect as of the date of this
Agreement, except as may be affected by actions taken pursuant to Section 2.3(c)
and as may be necessary to settle intercompany payables and receivables and to
effect intercompany funding. After the Closing Date, Purchaser shall take all
actions (or shall cause its Affiliates to take all actions) reasonably requested
by Pfizer to effect the provisions of this Section 7.6. Any action taken
pursuant to this Section 7.6 after the Closing Date shall be deemed for the
purposes of Section 2.8 to have occurred on the Closing Date and shall be
reflected in the calculation of the Working Capital of the Business pursuant to
such Section 2.8.
Section 7.7. Resignations. At the Closing and except as otherwise
requested by Purchaser in writing, Pfizer will deliver to Purchaser the
resignations (effective on or prior to Closing) of all directors of each of the
Conveyed Subsidiaries and their Subsidiaries from their positions as directors.
Section 7.8. Bulk Transfer Laws. Purchaser acknowledges that the
Seller Corporations have not taken, and do
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not intend to take, any action required to comply with any applicable bulk sale
or bulk transfer laws or similar laws.
Section 7.9. Noncompetition. (a) Subject to the provisions of this
Section 7.9, Pfizer agrees that for a period of five (5) years from the Closing
Date, Pfizer and its Subsidiaries shall not compete with the business of the
manufacture or sale of (i) reconstructive, trauma and specialty products that
are commercially available from, or under development by, Pfizer and its
Subsidiaries as of the Closing Date that are used for the treatment of
musculoskeletal disorders or (ii) surgical instrumentation that are commercially
available from, or under development by, Pfizer and its Subsidiaries as of the
Closing Date that are focused on stereotactic surgery ("Competitive Activity");
provided, however, that it shall not be deemed to be a violation of this
subsection for Pfizer or any of its Subsidiaries to (t) engage, directly or
indirectly, in the research, manufacture or sale of any pharmaceutical product
or any medical device for the delivery of pharmaceutical products, (u) invest in
or own any debt securities or other debt obligations, (v) invest in any third
Person (including, without limitation, any corporation or mutual or other fund)
which invests in, manages or operates a Competitive Activity, so long as
Pfizer's or any of its Subsidiary's investment is less than 20% of the
outstanding
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ownership interest in such third Person and Pfizer and its Subsidiaries do not
control or conduct such third Person or Competitive Activity, (w) invest in, own
an interest in, or acquire all or a majority of the stock or assets of any
Person which is not engaged primarily in a Competitive Activity, (x) invest in
securities having less than five percent (5%) of the outstanding voting power of
any Person, the securities of which are publicly traded or listed on any
securities exchange or automated quotation system, (y) invest in any Person
after the Closing Date to the extent that Pfizer or a Subsidiary had, directly
or indirectly, acquired, or had a right to acquire, such interest prior to the
date of this Agreement as set forth on Schedule 7.9, or (z) own any equity
interests through any employee benefit plan or pension plan. Notwithstanding
anything to the contrary, the foregoing covenant shall not apply with respect to
any Person that acquires a majority of the stock or assets of Pfizer or any of
its Subsidiaries and that prior to such acquisition already was engaged in a
Competitive Activity. For purposes of this subsection, "engaged primarily in a
Competitive Activity" shall mean that greater than thirty-five percent (35%) of
the aggregate net revenue derived during the last complete fiscal year of such
Person is derived from the Competitive Activity. Each investment or acquisition
made by Pfizer or its Subsidiaries which is subject to the provisions of
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this Section 7.9 must be permissible hereunder at the time of such investment,
provided, however, that any such investment which was permissible when made
cannot thereafter be the basis of a claim of violation of this Section 7.9.
(a) For a period of three (3) years after the Closing Date, Pfizer and
its Subsidiaries shall not, directly or indirectly, induce or attempt to induce
any officers, employees, representatives or agents of Purchaser or any of its
Affiliates engaged primarily in the Business to leave the employ of Purchaser or
any such Affiliate, or violate the terms of their contracts, or any employment
arrangements, with Purchaser or any such Affiliate, except that nothing in this
sentence shall restrict or preclude the rights of Pfizer and its Subsidiaries to
make generalized searches for employees by the use of advertisements in the
media (including trade media) or by engaging search firms to engage in searches
that are not targeted or focused on the employees employed by the Business.
(b) Notwithstanding anything to the contrary contained in subsection
(a) of this Section 7.9, Pfizer and its Subsidiaries shall not be deemed to have
violated the restrictions contained in Section 7.9(a) in the event that Pfizer
or a Subsidiary acquires or invests in any Person engaged primarily in a
Competitive Activity; provided, that Pfizer or such Subsidiary thereafter
divests all or a portion of such
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Competitive Activity within 18 months from the date of purchase of such Person
so as to be in compliance with Section 7.9(a) hereof.
(c) Prior to Closing, except as otherwise agreed in writing, neither
Purchaser nor any of its Affiliates will offer or provide employment on a
full-time or part-time or consulting basis to any individual employed in the
operation of the Business by Pfizer or any of its Affiliates.
(d) Pfizer and the Purchaser acknowledge that this Section 7.9
constitutes an independent covenant and shall not be affected by performance or
nonperformance of any other provision of this Agreement. Each of Pfizer and the
Purchaser has independently consulted with its counsel and after such
consultation agrees that the covenants set forth in this Section 7.9 are
reasonable and proper. It is the desire and intent of the parties that the
provisions of this Section 7.9 shall be enforced to the fullest extent
permissible under applicable law. If all or part of this Section 7.9 is held
invalid, illegal or incapable of being enforced by any law or public policy, all
other terms and provisions of this Agreement shall nevertheless remain in full
force and effect. If any part of this Section 7.9 is held to be excessively
broad as to duration, scope, activity or subject, such part will be construed by
limiting and
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reducing it so as to be enforceable to the maximum extent compatible with
applicable law.
Section 7.10. Transitional Services. At the Closing, Purchaser and
Pfizer shall enter into, execute and deliver a transitional services agreement
substantially to the effect set forth in Exhibit C (the "Transitional Services
Agreement").
Section 7.11. Transitional Intellectual Property License Agreement. At
the Closing, Purchaser and Pfizer shall enter into, execute and deliver a
transitional intellectual property license agreement substantially to the effect
set forth in Exhibit D (the "Transitional Intellectual Property License
Agreement").
Section 7.12. Compliance with WARN, Etc. With respect to WARN or other
similar statutes or regulations of any jurisdiction, Purchaser will timely give
any notices required to be given thereunder.
Section 7.13. Foreign Implementing Agreements. As promptly as
practicable after the date hereof, Pfizer and Purchaser shall cause the Foreign
Implementing Agreements to be prepared and executed by their applicable
Affiliates. The representations and warranties set forth in this Agreement,
subject to the limitations set forth herein, shall be deemed to be incorporated
by reference in the Foreign Implementing Agreements. To the extent of any
inconsistency between this
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Agreement and any Foreign Implementing Agreement, the provisions of this
Agreement shall govern.
Section 7.14. Litigation Support. Purchaser and its Affiliates on the
one hand and Pfizer and its Affiliates on the other hand will cooperate with
each other in the defense or settlement of any Liabilities or lawsuits involving
the Business for which they have responsibility under this Agreement by
providing the other party and such other party's legal counsel and other Persons
access to employees, records, documents, data, equipment, facilities, products,
parts, prototypes and other information regarding the Business and its products
as such other party may request, to the extent maintained or under the
possession or control of the requested party. The requesting party shall
reimburse the other party for its reasonable out-of-pocket expenses paid to
third parties in performing its obligations under this Section 7.14. Pfizer
shall keep Purchaser informed of the status of the pendency of the relevant
Liabilities and lawsuits involving the Business for which it has responsibility
under this Agreement, will advise Purchaser of material issues involved in the
litigation and will use its reasonable best efforts to seek a confidentiality
agreement with respect to any settlements of such lawsuits. For so long as any
Liabilities or lawsuits involving the Business for which Pfizer has
responsibility under this Agreement remain outstanding,
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Purchaser will advise Pfizer of material issues involved in the lawsuits
involving the Business for which it has responsibility and will use its
reasonable best efforts to seek a confidentiality agreement with respect to any
settlements of such lawsuits.
Section 7.15. Insurance.
(a) As of the Closing Date, the coverage under all insurance policies
related to the Business shall continue in force only for the benefit of the
Seller Corporations and their Affiliates and not for the benefit of Purchaser.
Purchaser agrees to arrange for its own insurance policies with respect to the
Business covering all periods and agrees not to seek, through any means, to
benefit from any of Seller Corporations' or their Affiliates' insurance policies
which may provide coverage for claims relating in any way to the Business on or
prior to the Closing Date.
(b) If any loss described in Section 5.7(b) shall occur in respect of
an asset other than a current asset prior to Closing, Pfizer shall use its best
efforts to collect under any available insurance policies and shall pay the
proceeds therefrom to Purchaser at Closing (or if collected thereafter, upon
collection), except to the extent applied in repairing or replacing such asset.
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Section 7.16. Audited Financial Statements. (a) Pfizer agrees to
furnish to Purchaser no later than September 15, 1998 audited financial
statements of the Business as of December 31, 1997 and for the three years then
ended that meet the requirements of Item 7 of Form 8-K under the Securities
Exchange Act of 1934, as amended ("Form 8-K").
(a) At Closing, Pfizer shall furnish to Purchaser unaudited financial
statements of the Business as of the most recently available accounting period
end and related statements of income that meet the requirements of Item 7 of
Form 8-K.
Section 7.17. Change of Name. Pfizer agrees to take such action as is
necessary to change the name of any Asset Selling Corporation that contains the
word "Howmedica" to a name that does not include such word, such change to be
effective on the Closing Date.
Section 7.18. Notification of Certain Matters. Pfizer shall give
prompt notice to Purchaser and Purchaser shall give prompt notice to Pfizer of
the occurrence, or non-occurrence, of any event the occurrence or non-occurrence
of which would be reasonably likely to cause (i) any representation or warranty
of Pfizer or Purchaser, as the case may be, contained in this Agreement to be
untrue or inaccurate in any material respect at or prior to the Closing, as the
case may be, or (ii) any Seller Corporation or Purchaser, as the case may be, to
fail to comply
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with or satisfy in any material respect any covenant, condition or agreement to
be complied with or satisfied by it hereunder; provided, however, that the
delivery of any notice pursuant to this Section 7.18 shall not limit or
otherwise affect the remedies available hereunder to the party receiving such
notice.
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Indemnification by Pfizer.
(a) Pfizer agrees to defend, indemnify and hold harmless Purchaser and
its Affiliates, and, if applicable, their respective directors, officers,
agents, employees, successors and assigns from and against any and all claims,
actions, causes of action, judgments, awards, liabilities, losses, costs or
damages (collectively, a "Loss" or the "Losses") claimed or arising directly
from (i) any Retained Liability, (ii) any Excluded Environmental Liabilities,
subject to the provisions of this Article, (iii) any breach by the Seller
Corporations of any of its covenants or agreements contained in this Agreement
or in any agreement, (iv) any breach of any representation and warranty of the
Seller Corporations contained in this Agreement, it being understood that for
purposes of this Article VIII, all materiality exceptions and qualifications set
forth in any representation and warranty of Pfizer contained in this Agreement
shall be disregarded, the materiality standard for
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Pfizer's obligations to indemnify Purchaser and its Affiliates, and, if
applicable, their respective directors, officers, agents, employees, successors
and assigns in respect of a breach of a representation and warranty contained
herein being set forth in Section 8.6 hereof, or (v) any non-compliance with
bulk transfer or similar Laws.
(b) Purchaser acknowledges and agrees that Pfizer shall not have any
liability under any provision of this Agreement for any Loss to the extent that
such Loss relates solely to action taken by Purchaser or its Affiliates after
the Closing Date. Purchaser shall take and shall cause its Affiliates to take
all reasonable steps to mitigate any Loss upon becoming aware of any event which
would reasonably be expected to, or does, give rise thereto.
(c) Nothing in this Section 8.1 shall be construed to impose
liabilities with respect to Taxes.
(d) Pfizer's obligation to indemnify, defend or hold harmless the
Purchaser or any of its Affiliates from any Loss shall terminate effective with
the expiration of the applicable statute of limitations in respect of such Loss
or as set forth in Section 8.5, whichever is earlier.
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Section 8.2. Indemnification by Purchaser.
(a) Purchaser agrees to defend, indemnify and hold harmless the Seller
Corporations and their Affiliates, and, if applicable, their respective
directors, officers, agents, employees, successors and assigns from and against
any and all Loss claimed or arising directly from (i) any Assumed Liability,
(ii) any breach by Purchaser of any of its covenants or agreements in this
Agreement, (iii) any breach of any warranty or representation of Purchaser
contained in this Agreement, or (iv) events occurring on or after the Closing
Date in connection with the Business (other than the Excluded Assets and the
Retained Liabilities), the Conveyed Assets, or the Shares including, without
limitation, the use, ownership, possession, operation or occupancy of any
Facility, Leased Real Property or Real Property, the Intellectual Property of
the Business, the Conveyed Assets, or the Shares or the Conveyed Subsidiaries
from and after the Closing Date.
(b) Seller Corporations shall take and shall cause its Affiliates to
take all reasonable steps to mitigate any Loss upon becoming aware of any event
which would reasonably be expected to, or does, give rise thereto.
(c) Nothing in this Section 8.2 shall be construed to impose
liabilities with respect to Taxes.
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Section 8.3. Notice of Claims.
(a) If any of the Persons to be indemnified under this Article VIII
(the "Indemnified Party") has suffered or incurred any Loss, the Indemnified
Party shall so notify the party from whom indemnification is sought (the
"Indemnifying Party") promptly in writing describing such Loss, the amount or
estimated amount thereof, if known or reasonably capable of estimation, and the
method of computation of such Loss, all with reasonable particularity and
containing a reference to the provisions of this Agreement or any other
agreement, instrument or certificate delivered pursuant hereto in respect of
which such Loss shall have occurred. If any action at law or suit in equity is
instituted by or against a third party with respect to which the Indemnified
Party intends to claim any liability or expense as a Loss under this Article
VIII, the Indemnified Party shall promptly notify the Indemnifying Party of such
action or suit and tender the Indemnified Party the defense of such action or
suit. A failure to give notice and to tender the defense of the action or suit
in a timely manner pursuant to this Section 8.3 shall not limit the obligation
of the responsible Person under this Article VIII, except (i) to the extent such
Indemnifying Party is prejudiced thereby, (ii) except to the extent expenses are
incurred during the period in which notice
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was not provided, and (iii) except as provided by Section 8.5 below.
(b) Except when a notice, report or other filing must be filed
immediately pursuant to Environmental Laws, Purchaser will provide a reasonable
opportunity under the circumstances to comment to Pfizer before Purchaser files
with respect to any Required Governmental Report it intends to file in
connection with an event which at the time of filing appears reasonably likely
to result in a Loss subject to the indemnification provisions of this Article.
In the event Purchaser is required to file such Required Governmental Report,
Purchaser will provide copies to Pfizer within a reasonable period of time under
the circumstances.
Section 8.4. Third Party Claims.
(a) The Indemnifying Party under this Article VIII shall have the
right, but not the obligation, to conduct and control, through counsel of its
choosing, any third party claim, action or suit (a "Third Party Claim"), and the
Indemnifying Party may compromise or settle the same, provided that the
Indemnifying Party shall give the Indemnified Party advance notice of any
proposed compromise of settlement. No Indemnified Party may compromise or settle
any Third Party Claim for which it is seeking indemnification hereunder without
the consent of
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the Indemnifying Party. The Indemnifying Party shall permit the Indemnified
Party to participate in, but not control, the defense of any such action or suit
through counsel chosen by the Indemnified Party, provided that the fees and
expenses of such counsel shall be borne by the Indemnified Party. If the
Indemnifying Party elects not to control or conduct the defense or prosecution
of a Third Party Claim, the Indemnifying Party shall have the right to
participate in, but not conduct or control, the defense or prosecution of any
Third Party Claim and, at its own expense, to employ counsel of its own choosing
for such purpose.
(b) The parties hereto shall cooperate in the defense or prosecution
of any Third Party Claim, with such cooperation to include (i) the retention and
the provision of the Indemnifying Party records and information that are
reasonably relevant to such Third Party Claim, and (ii) the making available of
employees on a mutually convenient basis for providing additional information
and explanation of any material provided hereunder.
Section 8.5. Expiration. Notwithstanding anything in this Agreement
to the contrary, if the Closing shall have occurred, all covenants, agreements,
warranties and representations made herein or in any certificate delivered
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pursuant hereto shall survive the Closing, but all representations and
warranties made herein or in any certificate delivered pursuant hereto, and all
indemnification obligations under Sections 8.1. and 8.2 with respect to any such
representation or warranty, shall terminate and expire on, and no action or
proceeding seeking damages or other relief for breach of any thereof or for any
misrepresentation or inaccuracy with respect thereto shall be commenced after,
the second anniversary of the Closing Date with respect to all claims of any
party, and of any indemnified persons under this Article VIII, which shall not
have been previously asserted, with reasonable specificity, by written notice
given under Section 8.3. The covenants, agreements and obligations of the
parties set forth in this Agreement shall survive indefinitely except as
expressly provided herein, provided, however, as to indemnification obligations
under Section 8.1(a)(ii) with respect to subparagraphs (i), (iii), (iv) and (vi)
of the definition of Excluded Environmental Liabilities, there shall be no
expiration date for such obligations, and with respect to subparagraphs (ii) and
(v) of the definition of Excluded Environmental Liabilities such obligations
shall terminate and expire on, and no action or proceeding seeking damages or
other relief with respect thereto shall be commenced after, the dates specified
in those respective subparagraphs unless claims shall
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have been made against the Indemnified Party and written notice thereof
previously given to Pfizer under Section 8.3.
Section 8.6. Certain Limitations. Neither Pfizer nor Purchaser shall
have any obligations to indemnify the other under Section 8.1(a)(iv) (in the
case of Pfizer's obligation) or Section 8.2(a)(iii) (in the case of Purchaser's
obligation) for Losses unless the aggregate of all such Losses for which either
party would, but for this provision, be liable exceeds on a cumulative basis
$17,500,000, but if such amount is exceeded, such party shall be required to pay
only the amount of such Losses which in the aggregate exceed $17,500,000;
provided, however, that neither party shall have any obligation to indemnify the
other under such Sections 8.1(a)(iv) or 8.2(a)(iii) for Losses (i) for any
individual item where the Loss relating thereto is less than $175,000, and (ii)
for Losses which in the aggregate are in excess of $700,000,000. The limitations
contained in this Section 8.6 do not apply to, limit or affect in any way
whatsoever Pfizer's indemnification obligations under Section 8.1(a)(ii).
Section 8.7. Losses Net of Insurance, Etc. The amount of any Loss for
which indemnification is provided under Sections 8.1 or 8.2 (the "Specified
Sections") shall be net of (i) any accruals or reserves on the Financial
Statements or the Working Capital Statement, (ii) any amounts recovered by the
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Indemnified Party pursuant to any indemnification by or indemnification
agreement with any third party, (iii) any insurance proceeds or other cash
receipts or sources of reimbursement received as an offset against such Loss
(each person from whom amounts are recovered or received pursuant to clauses
(ii) and (iii), a "Collateral Source"), and (iv) an amount equal to the present
value of the Tax benefit, if any, attributable to such Loss (the "NPV") that is
actually realized within three years after the indemnification payment by the
Indemnifying Party. To the extent that a Tax benefit in respect of such Loss is
not actually realized within such three year period, the Indemnified Party will
within thirty (30) days of the expiry of such three year period pay to the
Indemnifying Party the amount of the NPV. Indemnification under this Article
VIII shall not be available to Purchaser or Pfizer, as the case may be, unless
the party seeking indemnification under this Article VIII first uses all
reasonable efforts to seek recovery from all Collateral Sources. The
Indemnifying Party may require an Indemnified Party to assign the rights to seek
recovery pursuant to the preceding sentence; provided, that the Indemnifying
Party will then be responsible for pursuing such claim at its own expense. If
the amount to be netted hereunder from any payment required under Sections 8.1
or 8.2 is determined after payment by the Indemnifying Party of any amount
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otherwise required to be paid to an Indemnified Party to this Article VIII, the
Indemnified Party shall repay to the Indemnifying Party, promptly after such
determination, any amount that the Indemnifying Party would not have had to pay
pursuant to this Article VIII had such determination been made at the time of
such payment.
Section 8.8. Intentionally Omitted.
Section 8.9. Sole Remedy/Waiver. The parties hereto acknowledge and
agree that the remedies provided for in this Agreement shall be the parties'
sole and exclusive remedy with respect to the subject matter of this Agreement.
In furtherance of the foregoing, the parties hereby waive, to the fullest extent
permitted by applicable law, any and all other rights, claims and causes of
action (including rights of contributions, if any) known or unknown, foreseen or
unforeseen, which exist or may arise in the future, that it may have against the
Seller Corporations or any of their Affiliates, or Purchaser or any of its
Affiliates, as the case may be, arising under or based upon any federal, state
or local Law (including, without limitation, any such Law relating to
environmental matters or arising under or based upon any securities law, common
law or otherwise).
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Section 8.10. Indemnification Procedures for Remedial Actions on
Conveyed Properties.
(a) Pfizer shall have the right but not the obligation to conduct and
control the management of a Remedial Action at a property included in the
Conveyed Assets that is subject to indemnification pursuant to this Agreement.
Pfizer must notify Purchaser, within thirty (30) days of receipt of notice of
Purchaser's claim for indemnification for such matter, that (i) it intends to
undertake said responsibility or (ii) it requests more existing information from
Purchaser, that is readily available to or in Purchaser's possession, that is
reasonably needed to evaluate whether Purchaser's claim is subject to
indemnification pursuant to this Agreement. Purchaser shall promptly respond to
such requests for information (to the extent such information is reasonably
available to Purchaser) and, within thirty (30) days of receipt of such
information, Pfizer shall notify Purchaser as to whether it shall undertake the
Remedial Action. Prior to a determination by Pfizer that it will undertake a
Remedial Action pursuant to this Section, Purchaser shall take only those
actions reasonably necessary to comply with applicable Environmental laws or
address conditions that pose an immediate and acute health risk (unless
additional actions are approved by Pfizer, such approval not to be unreasonably
withheld). With
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respect to any Remedial Action, and any related engineering and/or institutional
controls, conducted at any Facilities, including without limitation in
connection with ISRA, the parties shall cooperate to ensure that any such
Remedial Action does not interfere with the activities conducted at the Facility
or reasonably contemplated planned activities at the Facility consistent with
the existing use and configuration of the Facility.
(b) In undertaking a Remedial Action pursuant to this Section, Pfizer
shall retain a qualified independent environmental consultant which consultant
shall be subject to Purchaser's approval (such approval not to be unreasonably
delayed or withheld). Pfizer shall undertake such Remedial Action in a prompt
and expeditious fashion in compliance with all applicable Environmental Laws and
shall not cause, through its own inaction, any undue delay in obtaining written
notice from the appropriate Governmental Authority that no further investigation
or remediation is necessary with respect to the matter that is the subject of
the indemnification claim to meet the Applicable Remedial Action Standards, or,
if no Governmental Authority is involved in such matter, a good faith
determination from its environmental consultant that no further investigation or
remediation is required to bring the Conveyed Property into conformance with
Applicable Remedial Action Standards, subject
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to Purchaser's approval not to be unreasonably withheld. Pfizer shall comply
with all applicable laws, including all applicable Environmental Laws, with
respect to its performance pursuant to this Section and take all steps necessary
to avoid the imposition of any fines, penalties, liens or the institution of any
actions or claims against Purchaser, the Conveyed Subsidiaries or a Subsidiary
of a Conveyed Subsidiary or the Facility. This provision shall not include any
institutional controls as part of any Remedial Action. Pfizer shall promptly
provide copies to Purchaser of all written notices, correspondence, draft
submissions, draft work plans, results of field work, and draft reports and
shall give Purchaser a reasonable opportunity given the circumstances (at
Purchaser's own expense) to comment on any submissions Pfizer intends to deliver
or submit to the appropriate Governmental Authority or third party prior to said
submission. Purchaser may, at its own expense, hire its own consultants,
attorneys or other professionals to monitor the Remedial Action, including any
field work undertaken by Pfizer, and Purchaser shall provide Pfizer with the
results of all such monitoring. Pfizer shall provide Purchaser with a reasonable
opportunity to monitor significant communications with Governmental Authorities
or third parties concerning the direction, scope and nature of such Remedial
Action, provided that Pfizer shall be in control of
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such communications. Notwithstanding the above, Purchaser shall not take any
actions that shall unreasonably interfere with Pfizer's performance of the
Remedial Action. Pfizer shall undertake any such work required herein in a
manner designed to minimize any disruption, to the greatest extent possible,
with the conduct of operations at the Conveyed Property. Purchaser shall allow
Pfizer reasonable access to conduct any of the work contemplated herein and
shall fully cooperate with Pfizer in the performance of the Remedial Action,
including, but not limited to, providing Pfizer with reasonable access to
employees and documents as necessary. Pfizer shall be responsible for protection
of worker and public health and safety in connection with any Remedial Action it
undertakes and manages. Purchaser shall cooperate with Pfizer with respect to
such protection.
(c) If Pfizer declines to undertake the performance of a Remedial
Action as provided in Section 8.10(a), Purchaser shall be entitled to undertake
the Remedial Action to the Applicable Remedial Action Standards and to be
indemnified for related costs to the extent consistent with other terms of this
Agreement. Purchaser shall promptly provide copies to Pfizer of all notices,
correspondence, draft reports, submissions, work plans, and final reports and
shall give Pfizer a reasonable opportunity (at Pfizer's own expense) to comment
to Purchaser on any submissions Purchaser intends to deliver or submit to the
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appropriate Governmental Authority or third party prior to said submission.
Pfizer may, at its own expense, hire its own consultants, attorneys or other
professionals to monitor the Remedial Action, including any field work
undertaken by Purchaser, and Purchaser shall provide to Pfizer the results of
all such field work. Notwithstanding the above, Pfizer shall not take any
actions that shall unreasonably interfere with Purchaser's performance of the
Remedial Action. Purchaser shall provide Pfizer with reasonable opportunity to
participate in significant communications with Governmental Authorities or third
parties, provided that Purchaser shall be in control of such communications.
Pfizer shall be responsible for the protection and health and safety of its
employees, representatives and agents. Pfizer shall comply with the site health
and safety requirements of Purchaser and its consultants and contractors.
Pfizer's decision to allow Purchaser to undertake Remedial Action hereunder
shall not limit or affect Pfizer's obligation to indemnify Purchaser for said
Remedial Action to the Applicable Remedial Action Standards as otherwise
provided in this Agreement.
Section 8.11. Remedial Action Obligations. Pfizer's indemnification
obligations under Section 8.1 hereof in respect of subsections (ii)(A) and (vi)
of the definition of Excluded Environmental Liabilities is subject to the
provisions of this
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Section 8.11. Pfizer shall be responsible for the commercially reasonable and
cost effective expenses of such Remedial Action conducted in conformance with
applicable Environmental Law (or any amendment in effect at the time of the
Remedial Action) and consistent with the industrial/commercial use of the
Facility (including any agreements with third parties relating thereto) as of
the Closing Date, or (consistent with any agreements with third parties in
effect as of the Closing Date) a standard pursuant to applicable Environmental
Laws acceptable at the time of Remedial Action to the relevant Governmental
Authorities making a claim for Remedial Action (the "Applicable Remedial Action
Standard"). Pfizer shall not be responsible for those additional costs incurred
in connection with a Remedial Action to the extent such costs arise from or are
exacerbated by actions of the Purchaser, including the initiation of Remedial
Action after the Closing Date by the Purchaser or at the request of a third
party in the absence of a requirement of Environmental Law or an obligation
under an agreement with a third party existing prior to the Closing Date.
Section 8.12. Compliance With ISRA.
(a) In addition to the provisions of Sections 8.10 and 8.11 above, the
following provisions apply to Pfizer's ISRA obligations pursuant to subparagraph
(vi) of the definition of Excluded Environmental Liabilities. Subject to the
provisions
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of this Section 8.12, for each Facility subject to the requirements of ISRA,
Pfizer shall be responsible, at its sole cost and expense, to comply with the
requirements of ISRA and all orders, directives and requirements of the New
Jersey Department of Environmental Protection ("NJDEP"). The limitations
contained in Section 8.6 do not apply to, limit or affect in any way whatsoever
Pfizer's ISRA obligations. For each ISRA subject Facility, Pfizer shall promptly
establish and maintain a remediation funding source and amount of funding to the
extent required by NJDEP and shall promptly remediate each ISRA subject Facility
to the extent required to obtain from NJDEP a No Further Action letter/Covenant
Not to Sue ("NFA/CNS"), whether conditional or unconditional, or the equivalent
pursuant to ISRA.
(b) Pfizer and Purchaser agree that either party shall have the right
to require that responsibility for all compliance obligations related to ISRA at
a subject Facility be transferred to Purchaser in exchange for a payment to be
negotiated between the parties (referred to hereinafter as the "ISRA Buyout").
The right to implement the ISRA Buyout pursuant to this Paragraph may be
exercised after the approval by the NJDEP of a Remedial Action Work Plan
("RAWP") or at the time of the issuance by NJDEP of a conditional NFA/CNS that
imposes
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costs that would not otherwise be incurred in the ordinary operation of the
Facility.
(c) Upon the decision to invoke the provisions of this Section
8.12(b), Pfizer and Purchaser shall enter into a period of good faith
negotiations to attempt to agree to determine a mutually acceptable total dollar
amount for the ISRA Buyout (the "ISRA Buyout Payment").
(d) The total dollar amount of the ISRA Buyout Payment shall be
determined as the present value calculation of the following future costs
related to or arising out of ISRA compliance at each ISRA subject Facility:
1) all direct and indirect capital costs;
2) engineering costs;
3) all sampling, analytical and remedial costs;
4) environmental consulting costs and reasonable legal costs
solely related to ISRA;
5) annual operation, maintenance and monitoring costs and
transactional costs for providing financial assurances;
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6) costs associated with a conditional NFA/CNS that would not
be incurred in the ordinary course of operating the
Facility;
7) estimated NJDEP administrative fees and oversight costs;
8) reasonable additional internal costs solely related to ISRA
for the manager of the project; and
9) reasonable risk under the circumstances at the time of the
ISRA Buyout. (It is acceptable for the ADR judge or panel of
judges to value this risk at zero, if that seems
appropriate.) The parties may reach mutual agreement on
other criteria to be included in this payment calculation.
(e) If the parties cannot agree on a mutually acceptable ISRA Buyout
Payment pursuant to paragraph (c) above, either party has the right to initiate
a binding alternative dispute resolution ("ADR") between Pfizer and Purchaser to
be conducted by an ADR judge for the sole purpose of determining the amount of
the ISRA Buyout Payment. Both parties agree that the ADR judge shall be an
individual experienced in the estimation of remedial costs under ISRA. If the
parties are
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unable to agree on a single ADR judge, they shall each select an ADR judge, and
the two selected ADR judges shall choose a third ADR judge, in which case the
matter should be presented to the panel of three judges. The ADR judge or panel
of judges shall establish the rules by which the parties shall present their
cases and the decision shall be rendered.
(f) The ADR judge (or panel of ADR judges) shall select in writing,
after the conclusion of the ADR process, either the ISRA Buyout Payment proposed
by Pfizer or the ISRA Buyout Payment proposed by Purchaser as the appropriate
total dollar amount to be paid by Pfizer to Purchaser as the final ISRA Buyout
Payment based on the criteria set forth in subparagraph (d). The decision of the
ADR judge (or panel of ADR judges) on the ISRA Buyout Payment shall be final and
binding on both Pfizer and Purchaser. Pfizer and Purchaser shall each pay half
of any fees and disbursements of the ADR judge (or panel of judges).
(g) Pfizer's obligation pursuant to ISRA with respect to any Facility
shall terminate upon occurrence of any of the following (i) NJDEP issues an
Unconditional NFA/CNS with respect to that Facility; (ii)NJDEP issues a
conditional NFA/CNS which does not require the incurrence of costs that would
not be otherwise incurred in the operation of the Facility in the
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ordinary course; or (iii) the parties or the ADR judge (or panel of judges)
determine the amount of the ISRA Buyout Payment and Pfizer pays such amount.
(h) In the event of an ISRA Buyout Payment, Section 8.12(g)(iii) shall
not be effective if the Purchaser incurs more than one million dollars
($1,000,000) beyond the undiscounted value of the ISRA Buyout Payment in
responding to the requirements of the NJDEP pursuant to ISRA, in which case
Pfizer shall be responsible for all such costs thereafter and Pfizer may assume
control of the Remedial Action, if reasonable under the circumstances.
Section 8.13. No Consequential Damages.
INDEMNIFICATION HEREUNDER SHALL INCLUDE LIABILITY FOR ANY SPECIAL,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES TO THE EXTENT THE INDEMNIFIED
PARTY PAYS SUCH AMOUNT TO A THIRD PARTY IN RESPECT OF A CLAIM OF SUCH THIRD
PARTY. EXCEPT AS EXPRESSLY PROVIDED IN THE PRECEDING SENTENCE, NO PARTY TO THIS
AGREEMENT SHALL BE LIABLE TO OR OTHERWISE RESPONSIBLE TO ANY OTHER PARTY HERETO
OR ANY AFFILIATE OF ANY OTHER PARTY HERETO FOR CONSEQUENTIAL, INCIDENTAL OR
PUNITIVE DAMAGES OR FOR DIMINUTION IN VALUE OR LOST PROFITS THAT ARISE OUT OF OR
RELATE TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF OR ANY LIABILITY
RETAINED OR ASSUMED HEREUNDER.
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ARTICLE IX
TERMINATION
Section 9.1. Termination. This Agreement may be terminated at any time
prior to the Closing:
(a) by written agreement of Purchaser and Pfizer, acting as agent for
the Seller Corporations;
(b) by either Purchaser or Pfizer, by giving written notice of such
termination to the other party, if the Closing shall not have occurred on or
prior to December 31, 1998; or
(c) except as set forth in and subject to Section 7.3(e), by either
Pfizer or Purchaser if any court of competent jurisdiction or other competent
Governmental Authority shall have issued a Governmental Order or taken any other
action permanently restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement and such Governmental Order or other
action shall have become final and nonappealable.
Section 9.2. Effect of Termination.
(a) In the event of the termination of this Agreement in accordance
with Section 9.1 hereof, this Agreement shall thereafter become void and have no
effect, and no party hereto shall have any liability to the other party hereto
or their respective Affiliates, directors, officers or employees, except
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for the obligations of the parties hereto contained in this Section 9.2 and in
Sections 7.1, 10.1, 10.7, 10.8, 10.9 and 10.11 hereof, and except that nothing
herein will relieve any party from liability for any breach of any covenant set
forth in this Agreement prior to such termination.
(b) In the event this Agreement shall be terminated and at such time
any party is in material breach of or default under any term or provision hereof
or thereof, such termination shall be without prejudice to, and shall not
affect, any and all rights to damages that the other party may have hereunder or
otherwise under applicable Law. The damages recoverable by the non-defaulting
party shall include, without limiting the generality of the immediately
preceding sentence, all attorneys' fees reasonably incurred by such parties in
connection with the transactions contemplated hereby and thereby.
(c) If this Agreement is terminated in accordance with Section 9.1,
Purchaser agrees that the prohibition in the Confidentiality Agreement
restricting Purchaser's ability to solicit any Employee to join the employ of
Purchaser or any of its Affiliates shall be extended to a period of three (3)
years from the date of this Agreement.
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ARTICLE X
MISCELLANEOUS
Section 10.1. Notices. All notices or other communications hereunder
shall be deemed to have been duly given and made if in writing and if served by
personal delivery upon the party for whom it is intended, if delivered by
registered or certified mail, return receipt requested, or by a national courier
service, or if sent by telecopier, provided that the telecopy is promptly
confirmed by telephone confirmation thereof, to the person at the address set
forth below, or such other address as may be designated in writing hereafter, in
the same manner, by such person:
To any Seller Corporation:
PFIZER INC.
235 East 42nd Street
New York, NY 10017
Telephone: 212-573-3637
Telecopy: 212-573-1445
Attn: Paul S. Miller, Esq.
Senior Vice President and
General Counsel
With a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attn: Raymond O. Gietz, Esq.
To Purchaser:
STRYKER CORPORATION
2725 Fairfield Road
Kalamazoo, MI 49002
Telephone: 616-385-2600
Telecopy: 616-385-0030
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Attention: John W. Brown,
Chairman of the Board
With a copy to:
Whitman Breed Abbott & Morgan
200 Park Avenue
New York, NY 10166
Attn: John H. Denne, Esq.
Section 10.2. Amendment; Waiver. Any provision of this Agreement may
be amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by Purchaser and Pfizer, or in the case of
a waiver, by the party against whom the waiver is to be effective. No failure or
delay by any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
Section 10.3. Assignment. No party to this Agreement may assign any of
its rights or obligations under this Agreement including by sale of stock,
operation of law in connection with a merger or sale of substantially all the
assets of Purchaser without the prior written consent of the other party hereto;
except that Purchaser may without such consent assign its rights to purchase the
Shares and the Conveyed Assets hereunder to one or more Purchaser Affiliates and
may collaterally assign its other rights hereunder to the lenders under the
credit
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facilities contemplated by the Goldman Commitment Letter, provided that no such
assignment by Purchaser shall relieve Purchaser of any of its obligations
hereunder.
Section 10.4. Entire Agreement. This Agreement (including all
Schedules and Exhibits hereto) contains the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements and understandings, oral or written, with respect to such matters,
except for the Confidentiality Agreement which will remain in full force and
effect for the term provided for therein and other than any written agreement of
the parties that expressly provides that it is not superseded by this Agreement.
Section 10.5. Fulfillment of Obligations. Any obligation of any party
to any other party under this Agreement, which obligation is performed,
satisfied or fulfilled by an Affiliate of such party, shall be deemed to have
been performed, satisfied or fulfilled by such party.
Section 10.6. Parties in Interest. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Nothing in this Agreement, express or implied,
is intended to confer upon any Person other than Purchaser, Seller Corporations,
or their successors or permitted assigns, any rights or remedies under or by
reason of this Agreement.
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Section 10.7. Public Disclosure. Notwithstanding anything herein to
the contrary, each of the parties to this Agreement hereby agrees with the other
party hereto that, except as may be required to comply with the requirements of
any applicable Laws, and the rules and regulations of each stock exchange upon
which the securities of one of the parties is listed, if any, no press release
or similar public announcement or communication shall, if prior to the Closing,
be made or caused to be made concerning the execution or performance of this
Agreement unless the parties shall have consulted in advance with respect
thereto.
Section 10.8. Return of Information. If for any reason whatsoever the
transactions contemplated by this Agreement are not consummated, Purchaser shall
promptly return to Pfizer all books and records furnished by Pfizer, any other
Seller Corporation, any Conveyed Subsidiary, any of their respective Affiliates
or any of their respective agents, employees, or representatives (including all
copies, summaries and abstracts, if any, thereof) in accordance with the terms
of the Confidentiality Agreement.
Section 10.9. Expenses. Except as otherwise expressly provided in this
Agreement, whether or not the transactions contemplated by this Agreement are
consummated, all costs and expenses incurred in connection with this Agreement
and the
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transactions contemplated hereby shall be borne by the party incurring such
expenses. All Taxes (including, without limitation, any value added Taxes but
excluding any Income Taxes) and fees relating to the transfer of the Shares and
the Conveyed Assets shall be paid by the person liable therefor but the
liability for such Taxes as between the Seller Corporations and Purchaser shall
be borne as follows: (y) in respect of any such Taxes which are refundable or in
respect of which a credit is or becomes available, by Purchaser; and (z) in
respect of any other such Taxes not falling within subsection (y) above, equally
by the Seller Corporations on the one hand and Purchaser on the other hand,
provided that if any such Tax or any other Tax from which there is otherwise a
refund or a credit becomes payable or non-refundable as a result of Purchaser's
failing to register or become liable for such Tax, for example value added Tax,
such Tax shall be borne by the Purchaser solely. The Seller Corporations and
Purchaser, as the case may be, will on demand reimburse the other for its share
of any such Taxes paid by the other in accordance with the foregoing provisions
of this Section.
Section 10.10. Schedules. The disclosure of any matter in any Schedule
to this Agreement, as may be amended or supplemented prior to the Closing as
expressly permitted hereby, shall be deemed to be a disclosure for all purposes
of this
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Agreement, but shall expressly not be deemed to constitute an admission by any
Seller Corporation or Purchaser, or to otherwise imply, that any such matter is
material for the purposes of this Agreement.
Section 10.11. Governing Law. THE AGREEMENT SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK, ITS RULES OF CONFLICT OF LAWS NOTWITHSTANDING.
Pfizer and the Purchaser hereby agree and consent to be subject to the
jurisdiction of the United States District Court for the Southern District of
New York and in the absence of such Federal jurisdiction, the parties consent to
be subject to the jurisdiction of the Supreme Court of the State of New York,
County of New York.
Section 10.12. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, and all of which
shall constitute one and the same agreement.
Section 10.13. Headings. The heading references herein and the table
of contents hereto are for convenience purposes only, do not constitute a part
of this Agreement and shall not be deemed to limit or affect any of the
provisions hereof.
Section 10.14. Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity
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or enforceability of the other provisions hereof. If any provision of this
Agreement, or the application thereof to any person or entity or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other persons, entities or circumstances shall not be affected by
such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or the
application thereof, in any other jurisdiction.
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IN WITNESS WHEREOF, the parties have executed or caused this Agreement
to be executed as of the date first written above.
PFIZER INC.
By: /s/ David L. Shedlarz
----------------------------------------------
Name: David L. Shedlarz
Title: Senior Vice President and Chief Financial
Officer
STRYKER CORPORATION
By: /s/ John W. Brown
----------------------------------------------
Name: John W. Brown
Title: Chairman, President and Chief Executive
Officer
<PAGE> 1
Exhibit 2.2
Amendment No. 1
to
Stock and Asset Purchase Agreement
AMENDMENT No. 1, dated as of October 22, 1998 (this "Amendment"), to the
STOCK AND ASSET PURCHASE AGREEMENT, dated as of August 13, 1998 (the "Stock and
Asset Purchase Agreement"), between Pfizer Inc., a Delaware corporation
("Pfizer"), and Stryker Corporation, a Michigan corporation ("Stryker").
W I T N E S S E T H
WHEREAS, Pfizer and Stryker desire to amend the Stock and Asset Purchase
Agreement in certain respects as more fully set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
contained herein, and subject to and on the terms and conditions set forth, the
parties hereto agree as follows:
Section 1. Capitalized terms used in this Amendment that are not otherwise
defined herein shall have the meanings ascribed to such terms in the Stock and
Asset Purchase Agreement.
Section 2. The Stock and Asset Purchase Agreement shall be amended as
follows:
2.1 Section 2.7 shall be amended to read in its entirety as follows:
"Section 2.7 Purchase Price. (a) In consideration of the
sale and transfer of the Shares and the sale and transfer of the
Conveyed Assets, Purchaser shall pay to Pfizer, as agent for the
Seller Corporations (or to Pfizer's Affiliates as Pfizer may on
behalf of the Seller Corporations direct in the written transfer
instructions hereinafter referred to), an aggregate amount of One
Billion Six Hundred Fifty Million Dollars ($1,650,000,000.00) (the
"Aggregate Payment"), in immediately available funds, by wire
transfer in accordance with written instructions given by Pfizer to
Purchaser not less than two (2) Business Days prior to the Closing,
which consideration shall be subject to the purchase price adjustment
provided for in Section 2.8 and shall be allocated as described
below."
(b) In consideration of the sale and transfer of the Shares,
Purchaser agrees to purchase from the Stock Selling Corporations the
Shares for an aggregate purchase price of Five Hundred Twenty-Four
Million One Hundred Eighty Thousand Dollars ($524,180,000.00),
allocated among the Shares as described in Schedule 2.9 (the "Share
Purchase Price").
<PAGE> 2
2
(c) In consideration of the sale and transfer of the Conveyed
Assets, the Purchaser agrees to purchase from each Asset Selling
Corporation the Conveyed Assets owned by such Asset Selling
Corporation for an aggregate purchase price of One Billion One
Hundred Twenty-Five Million Eight Hundred Twenty Thousand Dollars
($1,125,820,000.00), allocated among the Asset Selling Corporations
as described in Section 2.9 (the "Asset Purchase Price" and, together
with the Share Purchase Price, the "Aggregate Purchase Price")."
2.2 The last sentence of Section 2.9 shall be deleted and replaced
by the following:
"If after all other adjustments to the Allocation are made, the
Allocation with respect to any Asset Selling Corporation or Conveyed
Subsidiary (or Subsidiary), when expressed in the relevant local
currency at the rate of exchange used to determine Final Working
Capital, is less than the local currency net book value, determined
in accordance with GAAP, of the Conveyed Assets of such Asset Selling
Corporation or the assets of such Conveyed Subsidiary (or Subsidiary)
as of the Closing Date, then the Allocation with respect to such
Asset Selling Corporation or Conveyed Subsidiary (or Subsidiary)
shall be adjusted so that it is equal to such local currency net book
value converted at the rate of exchange used to determine Final
Working Capital and a corresponding adjustment will be made, as to
the first $3,000,000, to the Allocation with respect to Howmedica
Inc., and as to any balance in excess of the first $3,000,000, to the
Allocation with respect to Howmedica GmbH."
2.3 Schedule 2.9 shall be amended and replaced in its entirety by
the Schedule 2.9 attached hereto as Annex A.
2.4 Section 4.2(c) shall be amended to read in its entirety as
follows:
"(c) Purchaser shall have received funds pursuant to the credit
facilities provided for in the commitment letter, dated October 22,
1998, between Purchaser, on the one hand, and Goldman Sachs Credit
Partners L.P., Bank of America National Trust and Savings Association
and Nationsbanc Montgomery Securities LLC (the "Arrangers") on the
other hand, a copy of which has been furnished to Pfizer (the
"Financing Commitment Letter"). The parties agree that Purchaser's
ability to rely on the condition set forth in this Section 4.2(c) is
subject to the provisions of Section 7.3(d) hereof."
2.5 Section 7.3(d) shall be amended to read in its entirety as
follows:
"(d) Purchaser shall use its best efforts to cause the
conditions to funding under the Financing Commitment Letter to be
satisfied and to borrow the funds provided thereunder.
Notwithstanding the foregoing, and subject to the following
provisions of this Section 7.3(d), Purchaser shall not be required to
borrow funds under the Financing Commitment Letter if the Arrangers
notify
<PAGE> 3
3
Purchaser in writing (the "Arrangers' Notice") that pursuant to
the Financing Commitment Letter, they have determined that changes in
the tranche amounts or interest rate margin are necessary and such
changes cause the weighted average Applicable Eurodollar Rate Margin
determined as set forth in the Financing Commitment Letter on the
credit facilities (including the refinancing of the Japanese Yen
denominated indebtedness in the amount of approximately $75 million
provided for therein) to exceed 3.05 per cent per annum. Purchaser
will keep Pfizer informed of the status of discussions regarding
pricing of the loans from and after the date hereof and will notify
Pfizer of its receipt of any Arrangers' Notice within 24 hours and
will provide Pfizer with a copy thereof and the calculation of the
weighted average Applicable Eurodollar Rate Margin and a
determination of the amount thereof that exceeds 3.05 per cent per
annum (such amount in excess of 3.05 per cent being referred to as
the "Maximum Excess Margin"). In such event, Pfizer shall have the
right (but not the obligation), by notice to Purchaser within 2
Business Days of Pfizer's receipt of any Arrangers' Notice, to elect
to bear and reimburse Purchaser on a quarterly basis an amount equal
to the portion of the weighted average Applicable Eurodollar Rate
Margin which accrued on the credit facilities during that quarter
that exceeds 3.05 per cent per annum, but in no event shall Pfizer be
responsible for more than the Maximum Excess Margin. If Pfizer makes
such election, Purchaser shall be required to borrow the funds under
the Financing Commitment Letter unless the Maximum Excess Margin
exceeds .25 per cent, in which case Purchaser may elect not to borrow
the funds regardless of whether Pfizer has made the election referred
to above. Within 15 days of the end of each quarter, Purchaser will
provide Pfizer with a written statement of the amounts outstanding
under each tranche of the credit facilities during the quarter and
the Applicable Eurodollar Rate Margins together with a calculation of
the weighted average Applicable Eurodollar Rate Margin accrued during
such quarter and the amount payable by Pfizer under this Section
7.3(d). Pfizer shall pay such amount to Purchaser within 5 Business
Days of receipt of such statement from the Purchaser. Pfizer shall
have no liability to reimburse Purchaser for any additional interest
which may result from any changes in or waivers of the terms of
payment under the credit facilities provided pursuant to the
Financing Commitment Letter after Pfizer's election under this
Section 7.3(d) has been made, whether such additional interest
results as a consequence of changes in interest rates or spreads,
refinancing, default, changes in the amounts and timing of payments
or otherwise (whether any such change is permitted by the original
terms of the credit agreement or results from subsequent
modifications agreed to by the lenders and Purchaser)."
Section 3. References. All references to "this Agreement" in
the Stock and Asset Purchase Agreement shall mean the Stock and Asset Purchase
Agreement as amended hereby.
Section 4. Governing Law. This Amendment shall be governed by the
laws of the State of New York, its rules of conflict of laws notwithstanding.
<PAGE> 4
4
Section 5. Counterparts. This Amendment may be executed in one or
more counterparts, each of which shall be deemed an original, and all of which
shall constitute one and the same agreement.
Section 6. No Other Amendments. Except as expressly amended hereby,
the terms and conditions of the Stock and Asset Purchase Agreement shall
continue in full force and effect.
IN WITNESS WHEREOF, the parties have executed or caused this Amendment
to be executed as of the date first written above.
PFIZER INC.
By:
-----------------------------
Name:
Title:
STRYKER CORPORATION
By:
-----------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 10.1
EXECUTION
CREDIT AND GUARANTY AGREEMENT
dated as of December 4, 1998
among
STRYKER CORPORATION,
CERTAIN SUBSIDIARIES OF STRYKER CORPORATION,
as Guarantors,
CERTAIN FINANCIAL INSTITUTIONS,
as Lenders,
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as a Joint Lead Arranger and Syndication Agent,
NATIONSBANC MONTGOMERY SECURITIES LLC,
as a Joint Lead Arranger,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Global Agent, US Facility Agent and Multicurrency Facility Agent,
and
ABN AMRO BANK N.V.,
BD BANK
and
THE BANK OF NOVA SCOTIA,
as Co-Documentation Agents
-----------------------------------------------
$1,650,000,000 SENIOR SECURED CREDIT FACILITIES
-----------------------------------------------
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
<S> <C> <C>
SECTION 1. DEFINITIONS; INTERPRETATION.................................... 2
1.1. Defined Terms.................................................. 2
1.2. Accounting Terms............................................... 41
1.3. Interpretation, etc............................................ 41
SECTION 2. LOANS AND LETTERS OF CREDIT.................................... 42
2.1. Term Loans..................................................... 42
2.2. Facility Loans................................................. 42
2.3. Letters of Credit.............................................. 48
2.4. Pro Rata Shares................................................ 55
2.5. Use of Proceeds................................................ 56
2.6. Evidence of Debt; Register; Lenders' Books and Records; Notes.. 56
2.7. Interest Payments.............................................. 57
2.8. Conversion/Continuation........................................ 59
2.9. Default Interest............................................... 60
2.10. Fees........................................................... 60
2.11. Scheduled Payments/Reductions.................................. 62
2.12. Voluntary Prepayments/Reductions............................... 63
2.13. Mandatory Prepayments/Reductions............................... 65
2.14. Application of Prepayments/Reductions.......................... 67
2.15. Allocation of Certain Payments and Proceeds.................... 68
2.16. General Provisions Regarding Payments.......................... 69
2.17. Ratable Sharing................................................ 70
2.18. Increased Cost and Reduced Return.............................. 70
2.19. Limitation on Types of Loans................................... 72
2.20. Illegality..................................................... 72
2.21. Treatment of Affected Loans.................................... 72
2.22. Compensation................................................... 73
2.23. Taxes.......................................................... 73
2.24. Replacement Lender............................................. 76
2.25. Funding........................................................ 76
2.26. Economic and Monetary Union in the European Community.......... 76
</TABLE>
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<TABLE>
<CAPTION>
TABLE OF CONTENTS
(CONTINUED)
PAGE
<S> <C> <C>
SECTION 3. CONDITIONS PRECEDENT; RELEASE OF COLLATERAL.................... 79
3.1. Closing Date................................................... 79
3.2. Conditions to each Credit Extension............................ 83
3.3. Release of Collateral.......................................... 85
SECTION 4. REPRESENTATIONS AND WARRANTIES................................. 86
4.1. Organization; Powers; Qualification............................ 86
4.2. Authorization of Credit Documents; No Conflict................. 86
4.3. Governmental Consents.......................................... 86
4.4. Binding Obligation............................................. 87
4.5. Historical Financial Statements; Projections................... 87
4.6. No Material Adverse Effect; No Restricted Junior Payments...... 87
4.7. Litigation; Adverse Proceedings................................ 87
4.8. Payment of Taxes............................................... 88
4.9. Title to Properties............................................ 88
4.10. Collateral..................................................... 88
4.11. Environmental Matters.......................................... 89
4.12. No Defaults; Material Contracts................................ 90
4.13. Governmental Regulation........................................ 90
4.14. Margin Stock................................................... 90
4.15. Employee Matters............................................... 90
4.16. Employee Benefit Plans......................................... 90
4.17. Certain Fees................................................... 91
4.18. Solvency....................................................... 91
4.19. Related Agreements............................................. 91
4.20. Year 2000 Issues............................................... 91
4.21. Disclosure..................................................... 91
SECTION 5. AFFIRMATIVE COVENANTS.......................................... 92
5.1. Financial Statements and Other Reports......................... 92
5.2. Existence...................................................... 95
5.3. Payment of Taxes and Claims.................................... 95
5.4. Maintenance of Properties...................................... 95
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
TABLE OF CONTENTS
(CONTINUED)
PAGE
<S> <C> <C>
5.5. Insurance..................................................... 95
5.6. Inspections; Lenders Meetings................................. 96
5.7. Compliance with Laws.......................................... 96
5.8. Environmental................................................. 96
5.9. Subsidiaries.................................................. 97
5.10. Material Real Estate Assets................................... 98
5.11. Interest Rate Protection...................................... 98
5.12. Year 2000 Issues.............................................. 98
SECTION 6. NEGATIVE COVENANTS............................................ 98
6.1. Indebtedness.................................................. 99
6.2. Liens......................................................... 100
6.3. Equitable Lien; No Further Negative Pledges................... 102
6.4. Restricted Payments; Restrictions on Subsidiary Distributions. 102
6.5. Investments................................................... 103
6.6. Financial Covenant............................................ 104
6.7. Fundamental Changes; Disposition of Assets; Acquisitions...... 106
6.8. Disposal of Subsidiary Interests.............................. 107
6.9. Sales and Lease-Backs......................................... 107
6.10. Sale or Discount of Receivables............................... 108
6.11. Transactions with Shareholders and Affiliates................. 108
6.12. Conduct of Business........................................... 108
6.13. Amendments or Waivers of Certain Agreements................... 108
6.14. Fiscal Year................................................... 109
SECTION 7. GUARANTY...................................................... 109
7.1. Guaranty of the Obligations................................... 109
7.2. Contribution by Guarantors.................................... 109
7.3. Payment by Guarantors......................................... 110
7.4. Liability of Guarantors Absolute.............................. 110
7.5. Waivers by Guarantors......................................... 112
7.6. Guarantors' Rights of Subrogation, Contribution, Etc.......... 112
7.7. Subordination of Other Obligations............................ 113
</TABLE>
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<PAGE> 5
<TABLE>
<CAPTION>
TABLE OF CONTENTS
(CONTINUED)
PAGE
<S> <C> <C>
7.8. Continuing Guaranty......................................... 113
7.9. Authority of Guarantors or Company.......................... 113
7.10. Financial Condition of Company.............................. 113
7.11. Bankruptcy, Etc............................................. 114
7.12. Notice of Events............................................ 114
7.13. Discharge of Guaranty Upon Sale of Guarantor................ 114
SECTION 8. EVENTS OF DEFAULT........................................... 115
8.1. Events of Default........................................... 115
SECTION 9. AGENTS...................................................... 118
9.1. Appointment, Powers, and Immunities......................... 118
9.2. Reliance by Agents.......................................... 118
9.3. Defaults.................................................... 119
9.4. Rights as Lender............................................ 119
9.5. Indemnification............................................. 119
9.6. Non-Reliance on Agents and Other Lenders.................... 120
9.7. Resignation of an Agent.................................... 120
9.8. Collateral Documents and Guaranties......................... 121
SECTION 10. MISCELLANEOUS............................................... 122
10.1. Notices..................................................... 122
10.2. Expenses.................................................... 122
10.3. Indemnity................................................... 123
10.4. Set-Off..................................................... 123
10.5. Amendments and Waivers...................................... 124
10.6. Successors and Assigns; Participations...................... 125
10.7. Independence of Covenants................................... 128
10.8. Survival of Representations, Warranties and Agreements...... 128
10.9. No Waiver; Re4medies Cumulative............................. 128
10.10. Marshalling; Payments Set Aide.............................. 128
10.11. Severability................................................ 129
10.12. Obligations Several; Independent Nature of Lenders' Rights.. 129
10.13. Headings.................................................... 129
</TABLE>
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<TABLE>
<CAPTION>
TABLE OF CONTENTS
(CONTINUED)
PAGE
<S> <C> <C>
10.14. APPLICABLE LAW.............................................. 129
10.15. CONSENT TO JURISDICTION..................................... 129
10.16. WAIVER OF JURY TRIAL........................................ 130
10.17. Confidentiality............................................. 130
10.18. Judgment Currency........................................... 131
10.19. Usury Savings Clause........................................ 131
10.20. Counterparts; Effectiveness................................. 131
</TABLE>
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<PAGE> 7
<TABLE>
<CAPTION>
TABLE OF CONTENTS
(CONTINUED)
<S> <C> <C>
APPENDICES: A Term Loan Amounts
B Facility Commitments
C Notice Addresses
SCHEDULES: 3.1(c) Organizational and Capital Structure
3.1(i)(i) Closing Date Mortgaged Properties
3.1(k) Certain Manufacturing Facilities
4.1 Organization, Etc.
4.6 Certain Restricted Junior Payments
4.9 Real Estate Assets
4.12 Material Contracts
6.1 Certain Indebtedness
6.2 Certain Liens
6.5 Certain Investments
6.10 Certain Sales or Discounts of Receivables
EXHIBITS: A-1 Funding Notice
A-2 Conversion/Continuation Notice
A-3 Issuance Notice
B-1 Tranche A Term Loan Note
B-2 Tranche B Term Loan Note
B-3 Tranche C Term Loan Note
B-4 US Facility Note
B-5 US Swing Line Note
B-6 Multicurrency Facility Note
B-7 Multicurrency Swing Line Note
C Compliance Certificate
D Opinions of Counsel
E Assignment Agreement
F Certificate Re Non-bank Status
G Closing Date Certificate
H Counterpart Agreement
I Pledge and Security Agreement
J Mortgage
K Waiver and Consent Agreement
</TABLE>
-vi-
<PAGE> 8
CREDIT AND GUARANTY AGREEMENT
This CREDIT AND GUARANTY AGREEMENT, dated as of December 4, 1998, is entered
into by and among STRYKER CORPORATION, a Michigan corporation ("Company"),
CERTAIN SUBSIDIARIES OF STRYKER CORPORATION, as Guarantors, CERTAIN FINANCIAL
INSTITUTIONS, as Lenders, GOLDMAN SACHS CREDIT PARTNERS L.P. ("GSCP"), as a
Joint Lead Arranger and Syndication Agent (in such capacity, "Syndication
Agent"), NATIONSBANC MONTGOMERY SECURITIES LLC ("NMS"), as a Joint Lead
Arranger, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ("Bank of
America"), as Global Agent (together with its permitted successors in such
capacity, "Global Agent"), as US Facility Agent (together with its permitted
successors in such capacity, "US Facility Agent"), and as Multicurrency
Facility Agent (together with its permitted successors in such capacity,
"Multicurrency Facility Agent"), ABN AMRO BANK N.V. ("ABN"), NBD BANK
("NBD"), and THE BANK OF NOVA SCOTIA ("BNS"), as Co-Documentation Agents (each
of ABN, NBD and BNS, in such capacity, a "Co-Documentation Agent").
RECITALS:
WHEREAS, pursuant to the Stock and Asset Purchase Agreement, dated as of August
13, 1998, and amended as of October 22, 1998 (as amended, the "Acquisition
Agreement"), between Pfizer, Inc. ("Seller") and Company, Seller has agreed to
sell, and Company has agreed to purchase, all of Seller's worldwide How media
business (collectively referred to as the "Target") for Cash consideration of
$1,650,000,000, subject to certain working capital adjustments as described
therein (the "Acquisition Consideration");
WHEREAS, Lenders have agreed to extend certain credit facilities to Company, in
an aggregate amount not to exceed $1,650,000,000, consisting of $575,000,000
aggregate principal amount of Tranche A Term Loans, $290,000,000 aggregate
principal amount of Tranche B Term Loans, $285,000,000 aggregate principal
amount of Tranche C Term Loans, up to $250,000,000 aggregate principal amount of
US Facility Loans and up to $250,000,000 aggregate principal amount of
Multicurrency Facility Loans, the proceeds of which will be used, together with
certain Cash on hand of Company as of the Closing Date, to pay the Acquisition
Consideration and Transaction Costs, to repay certain existing Indebtedness of
Company and its Subsidiaries and Target and for working capital and other
general corporate purposes of Company and its Subsidiaries;
WHEREAS, Company has agreed to secure all of its obligations to Lenders
hereunder by granting to Global Agent, on behalf of Lenders, a First Priority
Lien on substantially all of its real, personal and mixed property, including
the capital stock of each of its Subsidiaries (subject to such exclusions as set
forth in the Pledge and Security Agreement); and
WHEREAS, Guarantors have agreed to guarantee the obligations of Company to
Lenders hereunder and to secure all of their respective obligations to Lenders
hereunder by granting to Global Agent, on behalf of Lenders, a First Priority
Lien on substantially all of their respective real, personal and mixed
properties, including the capital stock of each of their respective Subsidiaries
(subject to such exclusions as set forth in the Pledge and Security Agreement).
<PAGE> 9
NOW, THEREFORE, in consideration of the premises and the agreements, provisions
and covenants herein contained, Company, Guarantors, Lenders, Issuing Banks and
Agents agree as follows:
SECTION 1. DEFINITIONS; INTERPRETATION
1.1. Defined Terms. The following terms used herein, including the
preamble, recitals, appendices, exhibits and schedules hereto, shall have the
following meanings:
"ABN" as defined in the preamble hereto.
"Acknowledgment of Pledge" as defined in the Pledge and Security Agreement.
"Acquisition" means the transactions contemplated by the Acquisition Agreement.
"Acquisition Agreement" as defined in the recitals hereto, as such agreement may
be amended from time to time to the extent permitted pursuant to Section 6.13.
"Acquisition Charges" as defined in Section 6.6(c).
"Acquisition Consideration" as defined in the recitals hereto.
"Acquisition Financing Requirements" means the aggregate of all amounts
necessary (i) to pay the Acquisition Consideration, (ii) to repay certain
existing Indebtedness of Company and its Subsidiaries and Target, and (iii) to
pay Transaction Costs.
"Adverse Proceeding" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration (whether or not purportedly on behalf of Company or any of its
Subsidiaries) at law or in equity, or before or by any Governmental Authority
(including any Environmental Claims), whether pending or, to the knowledge of
Company or its Subsidiaries, threatened against or affecting Company or any of
its Subsidiaries or any property of Company or any of its Subsidiaries.
"Affected Loans" as defined in Section 2.21.
"Affected Type" as defined in Section 2.21.
"Affiliate", as applied to any Person, means any other Person directly or
indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise.
"Agent" means each of Syndication Agent, Global Agent, NMS, in its capacity as a
Joint Lead Arranger, and each Co-Documentation Agent.
"Aggregate Amounts Due" as defined in Section 2.17.
2
<PAGE> 10
"Aggregate Payments" as defined in Section 7.2.
"Agreement" means this Credit and Guaranty Agreement dated as of December 4,
1998, as it may be amended, supplemented or otherwise modified from time to
time.
"Applicable Aggregate Available Amount" as defined in Section 2.3(d)(ii).
"Applicable Margin", "Applicable US Facility Commitment Fee Percentage" and
"Applicable Multicurrency Facility Fee Percentage" mean, from the Closing Date
until the date of delivery of the Compliance Certificate and the financial
statements for the period ending June 30, 1999, (i) with respect to Eurodollar
Rate Loans, Multicurrency Facility Loans, Applicable US Facility Commitment Fee
Percentage and Applicable Multicurrency Facility Fee Percentage, (a) a
percentage, per annum, determined by reference to the following table as if the
Leverage Ratio then in effect was 3.50:1.00; and (b) thereafter, a percentage,
per annum, determined by reference to the Leverage Ratio in effect from time to
time as set forth below:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
US Facility Applicable Applicable
and US Facility Multicurrency
Leverage Multicurrency Tranche A Tranche B Tranche C Commitment Facility Fee
Ratio Facility Loans Term Loans Term Loans Fee Percentage Percentage
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
>3.75:1.00 2.250% 2.750% 3.250% 3.750% 0.500% 0.500%
- -
- --------------------------------------------------------------------------------------------------
<3.75:1.00
>3.25:1.00 2.000% 2.500% 3.000% 3.500% 0.500% 0.500%
- -
- --------------------------------------------------------------------------------------------------
<3.25:1.00
>2.75:1.00 1.750% 2.250% 3.000% 3.500% 0.500% 0.500%
- -
- --------------------------------------------------------------------------------------------------
<2.75:1.00
>2.25:1.00 1.500% 2.000% 3.000% 3.500% 0.500% 0.500%
- -
- --------------------------------------------------------------------------------------------------
<2.25:1.00 1.375% 1.750% 3.000% 3.500% 0.375% 0.375%
- --------------------------------------------------------------------------------------------------
</TABLE>
and (ii) with respect to Base Rate Loans, an amount equal to (a) the Applicable
Margin for Eurodollar Rate Loans as set forth above, minus (b) 1.00%, per annum,
provided, (1) no change in the Applicable Margin, the Applicable US Facility
Commitment Fee Percentage or the Applicable Multicurrency Facility Fee
Percentage shall be effective until three Business Days after the date on which
Global Agent receives the financial statements and a Compliance Certificate
pursuant to Section 5.1(c) calculating the Leverage Ratio, and (2) for so long
(but only for so long) as Company has not submitted to Global Agent the
information described in the foregoing clause (1) when required under Section
5.1(c), the Applicable Margin, the Applicable US Facility Commitment Fee
Percentage and the Applicable Multicurrency Facility Fee Percentage shall be
determined as if the Leverage Ratio were in excess of 3.75:1.00. Global Agent
shall give each Lender, within one (1) Business Day of receipt of any Compliance
Certificate, telefacsimile notice, or telephonic notice (confirmed in writing),
of the Applicable Margin, Applicable US Facility Commitment Fee Percentage and
the Applicable Multicurrency Facility Fee Percentage in effect from such date.
3
<PAGE> 11
"Applicable Maximum Available Amount" as defined in Section 2.3(d)(ii).
"Applicable Reserve Requirement" means, at any time, for any Eurodollar Rate
Loan the maximum rate at which reserves (including, without limitation, any
marginal, special, supplemental or emergency reserves) are required to be
maintained with respect thereto against "Eurocurrency liabilities" (as such term
is defined in Regulation D) under regulations issued from time to time by the
Board of Governors of the Federal Reserve System or other applicable banking
regulator. Without limiting the effect of the foregoing, the Applicable Reserve
Requirement shall reflect any other reserves required to be maintained by such
member banks with respect to (i) any category of liabilities which includes
deposits by reference to which the applicable Eurodollar Rate or any other
interest rate of a Loan is to be determined, or (ii) any category of extensions
of credit or other assets which include Eurodollar Rate Loans. A Eurodollar
Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such
shall be deemed subject to reserve requirements without benefits of credit for
proration, exceptions or offsets that may be available from time to time to the
applicable Lender. The rate of interest on Eurodollar Rate Loans shall be
adjusted automatically on and as of the effective date of any change in the
Applicable Reserve Requirement.
"Applied Amount" as defined in Section 2.14(b).
"Asset Sale" means a sale, lease or sub-lease (as lessor or sublessor),
transference or disposition to any Person other than Company or any of its
Wholly-Owned Subsidiaries, in one transaction or a series of transactions, of
all or any part of Company's or any of its Subsidiaries' businesses, properties
or assets whether now owned or hereafter acquired, including, without limitation
the equity Securities of any of Company's Subsidiaries, but excluding (i)
inventory sold in the ordinary course of business, (ii) disposals of obsolete,
worn out or surplus property, (iii) sales of accounts receivable and related
assets (including contract rights) to a Securitization Entity of the type
specified in the definition of "Permitted Securitization Transaction", and (iv)
sales of assets in a single transaction or a series of related transactions not
in excess of $50,000 in the aggregate.
"Assignment Agreement" means an Assignment Agreement in the form of Exhibit E
(with such amendments or modifications as may be approved by Global Agent).
"Authorized Officer" means, as applied to any Person, any individual holding the
position of chairman of the board (if an officer) or president or one of its
vice presidents (or the equivalent thereof), and such Person's chief financial
officer or treasurer.
"Bank of America" as defined in the preamble hereto.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"Base Rate" means, for any day, a rate per annum (carried out to the fifth
decimal place) equal to the greater of (i) the Reference Rate in effect on such
day and (ii) Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
If for any reason US Facility Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, including the inability or failure
of US Facility
4
<PAGE> 12
Agent to obtain quotations in accordance with the terms hereof, the Base Rate
shall be determined without regard to clause (ii) of the first sentence of this
definition until the circumstances giving rise to such inability no longer
exist. Any change in the Base Rate resulting due to a change in the Reference
Rate or the Federal Funds Effective Rate shall be effective on the effective day
of such change in the Reference Rate or the Federal Funds Effective Rate,
respectively.
"Base Rate Loan" means a Loan for which the rate of interest is determined by
reference to the Base Rate.
"Beneficiary" means each Agent, each Issuing Bank, each Lender and each Lender
Counterparty.
"BNS" as defined in the preamble hereto.
"British Pound Sterling" or "L." means the lawful currency of the United Kingdom
of Great Britain and Northern Ireland.
"Business Day" means (i) with respect to all notices, determinations, fundings
and payments in connection with US Facility Loans or not related to any
particular Facility, or with respect to all notices, determinations, fundings
and payments involving Global Agent, any day excluding Saturday, Sunday and any
day which is a legal holiday under the laws of the States of New York or
California, or is a day on which banking institutions located in either such
state are authorized or required by law or other governmental action to close,
and (ii) with respect to all notices, determinations, fundings and payments in
connection with any Eurodollar Rate Loan or Multicurrency Facility Loan, any day
that is a Business Day described in clause (i) and that is also a day for
trading by and between banks in Dollars, in the case of Eurodollar Rate Loans,
or the applicable Multicurrency, in the case of Multicurrency Facility Loans,
in the applicable interbank market, and which is a Business Day in London,
England and in Tokyo, Japan on which banks are generally open for business.
"Capital Lease" means, as applied to any Person, any lease of any property
(whether real, personal or mixed) by that Person as lessee that, in conformity
with GAAP, is accounted for as a capital lease on the balance sheet of that
Person.
"Cash" means money, currency or a credit balance in any demand or Deposit
Account.
"Cash Equivalents" means, as at any date of determination, (i) marketable
securities (a) issued or directly and unconditionally guaranteed as to interest
and principal by the United States Government or (b) issued by any agency of the
United States the obligations of which are backed by the full faith and credit
of the United States, in each case maturing within one year after such date;
(ii) marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within one year after such date
and having, at the time of the acquisition thereof, a rating of at least A-1
from S&P or at least P-1 from Moody's; (iii) commercial paper maturing no more
than one year from the date of creation thereof and having, at the time of the
acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
Moody's; (iv) certificates of deposit or bankers' acceptances maturing within
one year after such date and issued or accepted by any Lender or by any
commercial bank organized under the laws of the United States of
5
<PAGE> 13
America or any state thereof or the District of Columbia, so long as such
commercial bank is rated at least "B" by Fitch IBCA, and (v) foreign Investments
that are of similar type of, and that have a rating comparable to, any of the
Investments referred to in the preceding claims (i) through (iv).
"Certificate re Non-Bank Status" means a certificate in the form of Exhibit F.
"Change of Control" means (i) a majority of the members of the Board of
Directors of Company shall not be Continuing Directors; or (ii) any Person
(other than any member of the Stryker Family Group), including a "group" (within
the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) which includes
such Person, shall purchase or otherwise acquire, directly or indirectly,
beneficial ownership of Securities of Company and, as a result of such purchase
or acquisition, any Person (together with its associates and Affiliates), shall
directly or indirectly beneficially own in the aggregate Securities representing
more than 35% of the combined voting power of Company's voting Securities.
"Class" means
(i) with respect to Lenders, each of the following classes of
Lenders: (a) Lenders having Tranche A Term Loan Exposure, (b) Lenders
having Tranche B Term Loan Exposure, (c) Lenders having Tranche C Term
Loan Exposure, (d) Lenders having US Facility Exposure (including US
Swing Line Lender), and (e) Lenders having Multicurrency Facility
Exposure (including Multicurrency Swing Line Lenders); and
(ii) with respect to Loans, each of the following classes of Loans:
(a) Tranche A Term Loans, (b) Tranche B Term Loans, (c) Tranche C Term
Loans, (d) US Facility Loans (including US Swing Line Loans), and (e)
Multicurrency Facility Loans (including Multicurrency Swing Line Loans).
"Closing Date" means the date on which the Term Loans are made.
"Closing Date Certificate" means a certificate in the form of Exhibit G.
"Closing Date Mortgaged Property" as defined in Section 3.1(i).
"Co-Documentation Agent" as defined in the preamble hereto.
"Collateral" means, collectively, all of the real, personal and mixed property
(including capital stock) in which Liens are purported to be granted pursuant to
the Collateral Documents as security for the Obligations.
"Collateral Account" as defined in Section 2.3(d)(i).
"Collateral Documents" means the Pledge and Security Agreement, the Mortgages,
the Waiver and Consent Agreements, if any, and all other instruments, documents
and agreements delivered by any Credit Party pursuant to this Agreement or any
of the other Credit Documents in order to grant to Global Agent, on behalf of
Lenders, a Lien on any real, personal or mixed property of that Credit Party as
security for the Obligations.
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<PAGE> 14
"commencement of the third stage of EMU" means the date of the commencement of
the third stage of EMU (expected to be January 1, 1999) or the date on which
circumstances arise which (in the opinion of Multicurrency Facility Agent) have
substantially the same effect and result in substantially the same consequences
as commencement of the third stage of EMU as contemplated by the Treaty on
European Union.
"Company" as defined in the preamble hereto.
"Compliance Certificate" means a certificate in the form of Exhibit C.
"Conforming Leasehold Interest" means any Recorded Leasehold Interest as to
which the lessor has agreed in writing for the benefit of Global Agent (which
writing has been delivered to Global Agent), whether under the terms of the
applicable lease, under the terms of a Landlord Consent and Estoppel, or
otherwise, to the matters described in the definition of "Landlord Consent and
Estoppel," which interest, if a subleasehold or sub-subleasehold interest, is
not subject to any contrary restrictions contained in a superior lease or
sublease.
"Consolidated Adjusted EBITDA" means, for any period, an amount equal to
(i) the sum of the amounts for such period of (a) Consolidated Net
Income, (b) Consolidated Interest Expense, (c) provisions for taxes based
on income (which shall be deemed to include the State of Michigan unitary
tax and similar taxes substantially based on income), (d) total
depreciation expense, (e) total amortization expense, (f) the following
charges incurred between the Closing Date and December 31, 1999 to the
extent such charges reduced Consolidated Net Income during such period
and without duplication: (1) restructuring charges related to Company and
its Subsidiaries, excluding the Target, not to exceed $65,000,000, (2)
restructuring charges related to the Target not to exceed $170,000,000,
and (3) Transaction Costs not to exceed $25,000,000, and (g) other
non-cash items (including, without limitation, non-cash charges relating
to write downs of purchased Target research and development and
reductions in Consolidated Net Income from the Closing Date through
December 31, 1999 as a result of a write-up of Target inventory) reducing
Consolidated Net Income (excluding any such non-cash item to the extent
that it represents an accrual or reserve for potential cash items in any
future period or amortization of a prepaid cash item that was paid in a
prior period); minus
(ii) other non-cash items increasing Consolidated Net Income for
such period (excluding any such non-cash item to the extent it represents
the reversal of an accrual or reserve for potential cash items in any
prior period).
"Consolidated Assets" means, as at any date of determination, the total assets
of Company and its Subsidiaries on a consolidated basis in conformity with GAAP.
"Consolidated Capital Expenditures" means, for any period, for Company and its
Subsidiaries on a consolidated basis, (i) the aggregate of all expenditures
incurred by such person during such period that, in accordance with GAAP, are or
should be included in "purchase of property and equipment", "purchase of
location contract rights" or similar items reflected in the statement of cash
flows of such Person, and (ii) to the extent not covered by clause (i) above,
the aggregate of all expenditures by such Person to acquire by purchase or
otherwise the business or fixed assets
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<PAGE> 15
of, or stock or other evidence of beneficial ownership of, any other Person
(other than Company or any Person that is a Wholly-Owned Subsidiary thereof
prior to such acquisition); provided, Consolidated Capital Expenditures shall
not include expenditures of (a) proceeds from Assets Sales, to the extent such
expenditures are used to acquire properties or assets used or useful in the
business of Company and/or its Subsidiaries within 12 months of receipt of such
proceeds (b) expenditures of proceeds of insurance settlements, condemnation
awards and other settlements in respect of lost, destroyed, damaged or condemned
assets, equipment or other property to the extent such expenditures are made to
replace or repair such lost, destroyed, damaged or condemned assets, equipment
or other property or otherwise to acquire assets or properties useful in the
business of Company and its Subsidiaries within 12 months of receipt of such
proceeds, (c) Permitted Acquisitions and (d) Investments made pursuant to
Section 6.5.
"Consolidated Cash Interest Expense" means, for any period, Consolidated
Interest Expense for such period excluding, however, any interest expense not
payable in Cash (including amortization of discount and amortization of debt
issuance costs).
"Consolidated Excess Cash Flow" means, for any period, an amount (if positive)
equal to
(i) the amount disclosed in Company's financial statements for such
period in conformity with GAAP that may be properly classified as net
cash provided by operating activities; minus
(ii) the sum, without duplication, of (a) to the extent not
otherwise deducted in determining net cash provided by operating
activities, Consolidated Capital Expenditures, Permitted Acquisitions and
Investments permitted pursuant to Section 6.5 (net, in each case, of any
proceeds of any related financing or equity offering with respect to such
transaction), (b) voluntary and scheduled repayments of Consolidated
Total Debt (excluding repayments of Facility Loans except to the extent
the Facility Commitments are permanently reduced in connection with such
repayments), (c) Cash common dividends declared by Company pursuant to
Section 6.4(a)(i), and (d) Ireland/Puerto Rico Consolidated Excess Cash
Flow for such period; and
(iii) plus or minus, as the case may be, the amount disclosed in
Company's financial statements for such period in conformity with GAAP
that may be classified as the effect of exchange rate changes on Cash and
Cash Equivalents.
"Consolidated Fixed Charges" means, for any period, the sum (without
duplication) of the amounts for such period of (i) Consolidated Interest
Expense, (ii) Consolidated Capital Expenditures and (iii) scheduled repayments
for such period of principal on outstanding Indebtedness for such period and
scheduled reductions in commitments thereof for such period, all of the
foregoing as determined on a consolidated basis for Company and its Subsidiaries
in conformity with GAAP.
"Consolidated Interest Expense" means, for any period, total interest expense
(including that portion attributable to Capital Leases in accordance with GAAP
and capitalized interest) of Company and its Subsidiaries on a consolidated
basis with respect to all outstanding Indebtedness of Company and its
Subsidiaries, including all commissions, discounts and other
8
<PAGE> 16
fees and charges owed with respect to any Permitted Securitization Transaction,
letters of credit and bankers' acceptance financing and net costs under Interest
Rate Agreements, but excluding, however, any amounts referred to in Section 2.10
payable on or before the Closing Date.
"Consolidated Net Income" means, for any period, (i) the net income (or loss) of
Company and its Subsidiaries on a consolidated basis for such period taken as a
single accounting period determined in conformity with GAAP, less (ii) (a) the
income (or loss) of any Person (other than a Subsidiary of Company) in which any
other Person (other than Company or any of its Subsidiaries) has a joint
interest, except to the extent of the amount of dividends or other distributions
actually paid to Company or any of its Subsidiaries by such Person during such
period, (b) the income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary of Company or is merged into or consolidated with Company
or any of its Subsidiaries or that Person's assets are acquired by Company or
any of its Subsidiaries, (c) the income of any Subsidiary of Company to the
extent that the declaration or payment of dividends or similar distributions by
that Subsidiary of that income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary, (d) any
after-tax gains or losses attributable to Asset Sales or returned surplus assets
of any Pension Plan, and (e) (to the extent not included in clauses (a) through
(d) above) any net extraordinary gains or net non-Cash extraordinary losses.
"Consolidated Net Worth" means, as at any date of determination, the net worth
of Company and its Subsidiaries on a consolidated basis exclusive of foreign
translation adjustments determined in conformity with GAAP.
"Consolidated Total Debt" means, as at any date of determination, the aggregate
stated balance sheet amount of all Indebtedness of Company and its Subsidiaries
determined on a consolidated basis in accordance with GAAP; including, without
limitation, any outstanding Indebtedness of any Securitization Entity.
"Continuing Directors" means individuals who at the beginning of any period of
two consecutive calendar years constituted the board of directors of Company,
together with any new directors whose election by such board of directors or
whose nomination for election was approved by a vote of at least two-thirds of
the members of such board of directors then still in office who either were
members of such board of directors at the beginning of such period or whose
election or nomination for election was previously so approved.
"Contractual Obligation" means, as applied to any Person, any provision of any
Security issued by that Person or of any material indenture, mortgage, deed of
trust, contract, undertaking, agreement or other instrument to which that Person
is a party or by which it or any of its properties is bound or to which it or
any of its properties is subject.
"Conversion/Continuation Date" means the effective date of a continuation or
conversion, as the case may be, as set forth in the applicable
Conversion/Continuation Notice.
"Conversion/Continuation Notice" means a notice in the form of Exhibit A-2.
"Counterpart Agreement" means a counterpart agreement in the form of Exhibit H.
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<PAGE> 17
"Contributing Guarantors" as defined in Section 7.2.
"Credit Date" means the date of a Credit Extension.
"Credit Documents" means this Agreement, the Notes, if any, the Collateral
Documents, the Letters of Credit (and any other documents or certificates
executed by Company in favor of Issuing Bank relating to the Letters of Credit),
and all other documents, instruments or agreements executed and delivered by a
Credit Party for the benefit of Agents, any Issuing Bank or any Lender in
connection herewith.
"Credit Extension" means the making of a Loan or the issuing of a Letter of
Credit.
"Credit Party" means each Person (other than any Agent, any Issuing Bank or any
Lender or any other representative thereof) from time to time party to a Credit
Document.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement, futures contract, option contract, synthetic cap or other similar
agreement or arrangement, in each case for the purpose of hedging the foreign
currency risk associated with Company's operations, to which Company or any of
its Subsidiaries is a party.
"Default" means a condition or event that, after notice or lapse of time or
both, would constitute an Event of Default.
"Deficiency Advance" as defined in Section 2.4(b).
"Deposit Account" means a demand, time, savings, passbook or like account with a
bank, savings and loan association, credit union or like organization, other
than an account evidenced by a negotiable certificate of deposit.
"Dollar" and the sign "$" mean the lawful money of the United States of America.
"Dollar Equivalent" means, with respect to a specified amount of Multicurrency,
the amount of Dollars into which such amount of such Multicurrency would be
converted, based on the applicable Spot Rate of Exchange.
"Domestic Subsidiary" means any Subsidiary organized under the laws of the
United States of America, any state thereof or the District of Columbia.
"ECU" means a basket of currencies of member states of the European Community.
"Eligible Assignee" means, (i) with respect to any interest in any Term Loan (a)
any Lender, any Affiliate of any Lender and, with respect to any Lender that is
an investment fund that invests in commercial loans, any other investment fund
that invests in commercial loans and that is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor,
and (b) any commercial bank, savings and loan association or savings bank or any
other entity which is an "accredited investor" (as defined in Regulation D under
the Securities Act) which extends credit or buys loans as one of its businesses,
including insurance companies, mutual funds and lease financing companies; and
(ii) with respect to any interest in
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<PAGE> 18
either Facility, in addition to the criteria set forth in the foregoing clause
(i), any such Eligible Assignee shall be a Person which has and maintains a
rating of BBB or higher from S&P and a rating of Baa2 or higher from Moody's and
which, through its applicable Lending Office, is capable of lending the
applicable Multicurrency to Company without the imposition of any withholding or
similar taxes, as determined by Company; provided, no Affiliate of Company
shall be an Eligible Assignee.
"Employee Benefit Plan" means any "employee benefit plan" as defined in Section
3(3) of ERISA which is or was maintained or contributed to by Company, any of
its Subsidiaries or any of their respective ERISA Affiliates.
"EMU" means Economic and Monetary Union as contemplated in the Treaty on
European Union.
"EMU Legislation" means legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European
currency (whether known as the euro or otherwise), being in part the
implementation of the third stage of EMU.
"Environmental Claim" means any investigation, notice, notice of violation,
claim, action, suit, proceeding, demand, abatement order or other order or
directive (conditional or otherwise), by any governmental authority or any other
Person, arising (i) pursuant to or in connection with any actual or alleged
violation of any Environmental Law; (ii) in connection with any Hazardous
Material or any actual or alleged Hazardous Materials Activity; or (iii) in
connection with any actual or alleged damage, injury, threat or harm to health,
safety, natural resources or the environment.
"Environmental Laws" means any and all foreign or domestic, federal or state (or
any subdivision of either of them), statutes, ordinances, orders, rules,
regulations, or Governmental Authorizations relating to (i) any Hazardous
Materials Activity; (ii) the generation, use, storage, transportation or
disposal of Hazardous Materials; or (iii) occupational safety and health, land
use or the protection of human health or welfare, in any manner applicable to
Company or any of its Subsidiaries or any Manufacturing Facility.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time, and any successor thereto.
"ERISA Affiliate" means, as applied to any Person, (i) any corporation which is
a member of a controlled group of corporations within the meaning of Section
414(b) of the Internal Revenue Code of which that Person is a member; (ii) any
trade or business (whether or not incorporated) which is a member of a group of
trades or businesses under common control within the meaning of Section 414(c)
of the Internal Revenue Code of which that Person is a member; and (iii) any
member of an affiliated service group within the meaning of Section 414(m) or
(o) of the Internal Revenue Code of which that Person, any corporation described
in clause (i) above or any trade or business described in clause (ii) above is a
member. Any former ERISA Affiliate of Company or any of its Subsidiaries shall
continue to be considered an ERISA Affiliate of Company or such Subsidiary
within the meaning of this definition with respect to the period such entity was
an ERISA Affiliate of Company or such Subsidiary and with respect to liabilities
arising after such
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<PAGE> 19
period for which Company or such Subsidiary could be liable under the Internal
Revenue Code or ERISA.
"ERISA Event" means (i) a "reportable event" within the meaning of Section 4043
of ERISA and the regulations issued thereunder with respect to any Pension Plan
(excluding those for which the provision for 30-day notice to the PBGC has been
waived by regulation); (ii) the failure to meet the minimum funding standard of
Section 412 of the Internal Revenue Code with respect to any Pension Plan
(whether or not waived in accordance with Section 412(d) of the Internal Revenue
Code) or the failure to make by its due date a required installment under
Section 412(m) of the Internal Revenue Code with respect to any Pension Plan or
the failure to make any required contribution to a Multiemployer Plan; (iii) the
provision by the administrator of any Pension Plan pursuant to Section
4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress
termination described in Section 4041(c) of ERISA; (iv) the withdrawal by
Company, any of its Subsidiaries or any of their respective ERISA Affiliates
from any Pension Plan with two or more contributing sponsors or the termination
of any such Pension Plan resulting in liability pursuant to Section 4063 or 4064
of ERISA; (v) the institution by the PBGC of proceedings to terminate any
Pension Plan, or the occurrence of any event or condition which would constitute
grounds under ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan; (vi) the imposition of liability on Company, any
of its Subsidiaries or any of their respective ERISA Affiliates pursuant to
Section 4062(e) or 4069 of ERISA or by reason of the application of Section
4212(c) of ERISA; (vii) the withdrawal of Company, any of its Subsidiaries or
any of their respective ERISA Affiliates in a complete or partial withdrawal
(within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer
Plan if there is any potential liability therefor, or the receipt by Company,
any of its Subsidiaries or any of their respective ERISA Affiliates of notice
from any Multiemployer Plan that it is in reorganization or insolvency pursuant
to Section 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act
or omission which could give rise to the imposition on Company, any of its
Subsidiaries or any of their respective ERISA Affiliates of fines, penalties,
taxes or related charges under Chapter 43 of the Internal Revenue Code or under
Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of
any Employee Benefit Plan; (ix) the assertion of a material claim (other than
routine claims for benefits) against any Employee Benefit Plan other than a
Multiemployer Plan or the assets thereof, or against Company, any of its
Subsidiaries or any of their respective ERISA Affiliates in connection with any
Employee Benefit Plan; (x) receipt from the Internal Revenue Service of notice
of the failure of any Pension Plan (or any other Employee Benefit Plan intended
to be qualified under Section 401(a) of the Internal Revenue Code) to qualify
under Section 401(a) of the Internal Revenue Code, or the failure of any trust
forming part of any Pension Plan to qualify for exemption from taxation under
Section 501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien
pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan; provided, none of the
foregoing events shall constitute an "ERISA Event" unless it results in
liability of Company, any of its Subsidiaries, or any of their respective ERISA
Affiliates in excess of $5,000,000.
"euro" means the single currency of Participating Member States of the European
Union.
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<PAGE> 20
"Eurodollar Rate" means, for any Interest Rate Determination Date with respect
to an Interest Period for a Eurodollar Rate Loan, the rate per annum obtained by
dividing (i) (a) the rate per annum (carried out to the fifth decimal place)
equal to the rate determined by US Facility Agent to be the offered rate which
appears on the page of the Telerate Screen which displays an average British
Bankers Association Interest Settlement Rate (such page currently being page
number 3740 or 3750, as applicable) for deposits (for delivery on the first day
of such period) with a term equivalent to such period in Dollars, determined as
of approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, or (b) in the event the rate referenced in the preceding
clause (a) does not appear on such page or service or if such page or service
shall cease to be available, the rate per annum (carried out to the fifth
decimal place) equal to the rate determined by US Facility Agent to be the
offered rate on such other page or other service which displays an average
British Bankers Association Interest Settlement Rate for deposits (for delivery
on the first day of such period) with a term equivalent to such period in
Dollars, determined as of approximately 11:00 a.m. (London, England time) on
such Interest Rate Determination Date, or (c) in the event the rates referenced
in the preceding clauses (a) and (b) are not available, the rate per annum equal
to the offered quotation rate (carried out to the fifth decimal place) to first
class banks in the London interbank market by US Facility Agent for deposits
(for delivery on the first day of the relevant period) in Dollars of amounts in
Same Day Funds comparable to the principal amount of the US Facility Loan of US
Facility Agent for which the Eurodollar Rate is then being determined with
maturities comparable to such period as of approximately 11:00 a.m. (London,
England time) on such Interest Rate Determination Date, by (ii) amount equal to
(a) one minus (b) the Applicable Reserve Requirement.
"Eurodollar Rate Loan" means a Loan bearing interest at a rate determined by
reference to the Eurodollar Rate.
"euro unit" means the currency unit of the euro.
"Event of Default" means each of the events set forth in Section 8.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from time
to time, and any successor statute.
"Facility" means the US Facility or the Multicurrency Facility.
"Facility Agent" means US Facility Agent or Multicurrency Facility Agent;
provided, with respect to the Term Loans, the term "applicable Facility Agent"
shall mean US Facility Agent.
"Facility Commitment" means a US Facility Commitment or a Multicurrency Facility
Commitment.
"Facility Commitment Termination Date" means the US Facility Commitment
Termination Date or the Multicurrency Facility Commitment Termination Date.
"Facility Lender" means a US Facility Lender or a Multicurrency Facility Lender.
"Facility Loan" means a US Facility Loan or a Multicurrency Facility Loan.
<PAGE> 21
"Facility Note" means a US Facility Note or a Multicurrency Facility Note.
"Fair Share Contribution Amount" as defined in Section 7.2.
"Fair Share" as defined in Section 7.2.
"Fair Share Shortfall" as defined in Section 7.2.
"Federal Funds Effective Rate" means for any day, the rate per annum (carried
out to the fifth decimal place) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such day; provided,
(i) if such day is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to US Facility Agent (in its individual
capacity) on such day on such transactions as determined by US Facility Agent.
"Financial Officer Certification" means, with respect to any financial statement
for which such certification is required, the certification of the chief
financial officer, treasurer, vice-president of finance or such other executive
officer of Company designated by the chief financial officer of Company, that
such financial statement fairly presents, in all material respects, the
financial condition of Company and its Subsidiaries as at the dates indicated
and the results of their operations and their cash flows for the periods
indicated, subject to changes resulting from audit and normal year-end
adjustments, as applicable.
"Financial Plan" as defined in Section 5.1(i).
"First Priority" means, with respect to any Lien purported to be created in any
Collateral pursuant to any Collateral Document, that such Lien is the only Lien
to which such Collateral is subject, other than Permitted Liens.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Company and its Subsidiaries ending on
December 31 of each calendar year.
"Fixed Charge Coverage Ratio" means the ratio as of the last day of any Fiscal
Quarter of (i) Consolidated Adjusted EBITDA for the four-Fiscal Quarter Period
then ended, to (ii) Consolidated Fixed Charges for such four-Fiscal Quarter
Period, in each case as set forth in the most recent Compliance Certificate
delivered by Company to Global Agent pursuant to Section 5.1(c); provided, for
purposes of determining the Fixed Charge Coverage Ratio as of any date prior to
the first anniversary of the Closing Date, Consolidated Adjusted EBITDA and
Consolidated Fixed Charges shall be measured from January 1, 1999 to the date of
such determination.
"Fixed Rate Loan" means a Eurodollar Rate Loan or a Multicurrency Facility Loan.
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<PAGE> 22
"Flood Hazard Property" means a Mortgaged Property located in an area designated
by the Federal Emergency Management Agency as having special flood or mud slide
hazards.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic Subsidiary.
"French Franc" or "FFr" means the lawful currency of the Republic of France.
"Funding Bank" means, for any Loan denominated in a Multicurrency, any banking
institution that (i) is capable of funding a Loan in the applicable
Multicurrency, (ii) is located in the jurisdiction of issuance of such
Multicurrency, and (iii) is approved by Multicurrency Facility Agent.
"Funding Notice" means a notice in the form of Exhibit A-1; provided, for any
Loan made on the Closing Date, the Funding Notice with respect thereto shall be
part of the Closing Date Certificate.
"Funding Guarantor" as defined in Section 7.2.
"GAAP" means, subject to the limitations on the application thereof set forth in
Section 1.2, generally accepted accounting principles set forth in opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
may be approved by a significant segment of the accounting profession, in each
case as the same are applicable to the circumstances as of the date of
determination.
"German Mark" or "DM" means the lawful currency of the Federal Republic of
Germany.
"Global Agent" as defined in the preamble hereto.
"Governmental Acts" means any act or omission, whether rightful or wrongful, of
any present or future de jure or de facto government or Governmental Authority.
"Governmental Authority" means any federal, state, municipal, national or other
governmental department, commission, board, bureau, court, agency or
instrumentality or political subdivision thereof or any entity or officer
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a foreign
entity or government.
"Governmental Authorization" means any permit, license, authorization, plan,
directive, consent order or consent decree of or from any Governmental
Authority.
"GSCP" as defined in the preamble hereto.
"Guarantor" means (i) each Domestic Subsidiary of Company (other than any
Securitization Entity) with respect to the Obligations of Company, and (ii)
Company with respect to any Obligation of any Multicurrency Swing Line
Subsidiary.
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<PAGE> 23
"Guaranty" means the guaranty of each Guarantor set forth in Section 7.
"Hazardous Materials" means any chemical, material or substance, exposure to
which is prohibited or regulated by any Environmental Laws.
"Hazardous Materials Activity" means any past or current activity, event or
occurrence involving any Hazardous Materials, including the use, manufacture,
possession, storage, holding, presence, existence, location, Release, threatened
Release, discharge, placement, generation, transportation, processing,
construction, treatment, abatement, removal, remediation, disposal, disposition
or handling of any Hazardous Materials, and any corrective action or response
action with respect to any of the foregoing.
"Hedge Agreement" means an Interest Rate Agreement or a Currency Agreement
entered into in the ordinary course of Company's or any of its Subsidiaries'
businesses or as otherwise required hereunder.
"Highest Lawful Rate" means the maximum lawful interest rate, if any, that at
any time or from time to time may be contracted for, charged, or received under
the laws applicable to any Lender which are presently in effect or, to the
extent allowed by law, under such applicable laws which may hereafter be in
effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.
"Historical Financial Statements" means as of the Closing Date, (i) the audited
financial statements of Company and its Subsidiaries, for the immediately
preceding three Fiscal Years, consisting of balance sheets and the related
consolidated statements of income, stockholders' equity and cash flows for such
Fiscal Years, (ii) the unaudited financial statements of Company and its
Subsidiaries as at the most recently ended Fiscal Quarter, consisting of a
balance sheet and the related consolidated statements of income, stockholders'
equity and cash flows for the three-, six- or nine-month period, as applicable,
ending on such date, (iii) the audited financial statements of the Target and
its Subsidiaries, for the immediately preceding three Fiscal Years, consisting
of balance sheets and the related consolidated statements of income,
stockholders' equity and cash flows for such Fiscal Years, and (iv) the
unaudited financial statements of Target and its Subsidiaries as at the most
recently ended Fiscal Quarter, consisting of a balance sheet and the related
consolidated statements of income and stockholders' equity for the three-, six-
or nine-month period, as applicable, ending on such date, and, in the case of
clauses (i) and (ii), together with a Financial Officer Certification.
"Indebtedness", as applied to any Person, means, without duplication, (i) all
indebtedness for borrowed money; (ii) that portion of obligations with respect
to Capital Leases that is properly classified as a liability on a balance sheet
in conformity with GAAP; (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed money;
(iv) any obligation owed for all or any part of the deferred purchase price of
property or services (excluding any such obligations incurred under ERISA),
which purchase price is (a) due more than six months from the date of incurrence
of the obligation in respect thereof or (b) evidenced by a note or similar
written instrument; (v) all indebtedness secured by any Lien on any property or
asset owned or held by that Person regardless of whether the indebtedness
secured thereby shall have been assumed by that Person or is nonrecourse to the
16
<PAGE> 24
credit of that Person; (vi) the face amount of any letter of credit issued for
the account of that Person or as to which that Person is otherwise liable for
reimbursement of drawings; (vii) the direct or indirect guaranty, endorsement
(otherwise than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such Person of the
obligation of another; (viii) any obligation of such Person the primary purpose
or intent of which is to provide assurance to an obligee that the obligation of
the obligor thereof will be paid or discharged, or any agreement relating
thereto will be complied with, or the holders thereof will be protected (in
whole or in part) against loss in respect thereof; (ix) any liability of such
Person for the obligation of another through any agreement (contingent or
otherwise) (a) to purchase, repurchase or otherwise acquire such obligation or
any security therefor, or to provide funds for the payment or discharge of such
obligation (whether in the form of loans, advances, stock purchases, capital
contributions or otherwise) or (b) to maintain the solvency or any balance sheet
item, level of income or financial condition of another if, in the case of any
agreement described under subclauses (a) or (b) of this clause (ix), the primary
purpose or intent thereof is as described in clause (viii) above; and (x)
Obligations under Hedge Agreements; provided, in no event shall Obligations
under Hedge Agreements be deemed "Indebtedness" for any purpose of the
definitions of the Leverage Ratio, Fixed Charge Coverage Ratio or any other
purpose under Section 6.6. For purposes of calculating the amount of
Indebtedness of a Securitization Entity outstanding as of any date, the face or
notional amount of any interest in receivables that is outstanding as of such
date shall be deemed to be Indebtedness but any such interests held by
Affiliates of such Securitization Entity shall be excluded for purposes of such
calculation.
"Indemnified Liabilities" means, collectively, any and all liabilities,
obligations, losses, damages (including natural resource damages), penalties,
actions, judgments, suits, claims (including Environmental Claims), costs
(including the costs of any investigation, study, sampling, testing, abatement,
cleanup, removal, remediation or other response action necessary to remove,
remediate, clean up or abate any Hazardous Materials Activity), expenses and
disbursements of any kind or nature whatsoever (including the reasonable fees
and disbursements of counsel for Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such Indemnitee shall be designated as a party or
a potential party thereto, and any fees or expenses incurred by Indemnitees in
enforcing this indemnity), whether direct, indirect or consequential and whether
based on any federal, state or foreign laws, statutes, rules or regulations
(including securities and commercial laws, statutes, rules or regulations and
Environmental Laws), on common law or equitable cause or on contract or
otherwise, that may be imposed on, incurred by, or asserted against any such
Indemnitee, in any manner relating to or arising out of (i) this Agreement or
the other Credit Documents or the transactions contemplated hereby or thereby
(including Lenders' agreement to make Credit Extensions or the use or intended
use of the proceeds thereof or the use or intended use of any thereof, or any
enforcement of any of the Credit Documents (including any sale of, collection
from, or other realization upon any of the Collateral or the enforcement of the
Guaranty)); (ii) the statements contained in the commitment letter delivered by
any Lender to Company with respect thereto; or (iii) any Environmental Claim or
any Hazardous Materials Activity relating to or arising from, directly or
indirectly, any past or present activity, operation, land ownership, or practice
of Company or any of its Subsidiaries.
"Indemnitee" as defined in Section 10.3.
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Initial Base Rate Margin" means the higher of (i) 0.0%, and (ii) a margin equal
to the Eurodollar Rate for a one month Interest Period as of the Closing Date
plus the Applicable Margin for Eurodollar Rate Loans less the Base Rate (carried
out to the fifth decimal place).
"Installment" as defined in Section 2.11(a).
"Installment Date" as defined in Section 2.11(a).
"Intellectual Property" means "Intellectual Property" as such term is defined
in the Pledge and Security Agreement.
"Intellectual Property Collateral" means as all of the Intellectual Property
subject to the Lien of the Pledge and Security Agreement.
"Interest Payment Date" means with respect to (i) any Base Rate Loan or any
Swing Line Loan for which an Interest Period is not in effect, each March 15,
June 15, September 15 and December 15 of each year, commencing on the first such
date to occur after the Closing Date; and (ii) any Eurodollar Rate Loan or any
Multicurrency Facility Loan for which an Interest Period is in effect, the last
day of each Interest Period applicable to such Loan; provided, in the case of
each Interest Period of longer than three months "Interest Payment Date" shall
also include each date that is three months, or an integral multiple thereof,
after the commencement of such Interest Period.
"Interest Period" means, in connection with a Fixed Rate Loan, an interest
period of one-, two-, three- or six-months, as selected by Company in the
applicable Notice, or of 9- or 12-months, if agreed to by all applicable
Lenders, (i) initially, commencing on the Credit Date or Conversion/Continuation
Date thereof, as the case may be; and (ii) thereafter, commencing on the day on
which the immediately preceding Interest Period expires; provided, (a) if an
Interest Period would otherwise expire on a day that is not a Business Day, such
Interest Period shall expire on the next succeeding Business Day unless no
further Business Day occurs in such month, in which case such Interest Period
shall expire on the immediately preceding Business Day; (b) any Interest Period
that begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall, subject to clauses (c) through (f) of this
definition, end on the last Business Day of a calendar month; (c) no Interest
Period with respect to any portion of any Class of Term Loans shall extend
beyond such Class's Term Loan Maturity Date; (d) no Interest Period with respect
to any portion of any Facility Loans shall extend beyond the applicable Facility
Commitment Termination Date; (e) no Interest Period with respect to any portion
of the Multicurrency Facility Loans shall extend beyond a date on which Company
is required to make a scheduled reduction of Multicurrency Facility Commitments
unless the aggregate principal amount of Multicurrency Facility Loans with
Interest Periods expiring on or before such date of reduction equals or exceeds
the amount required to be paid with respect to the Multicurrency Facility
Commitments on such date; and (f) no Interest Period with respect to any portion
of a Class of Term Loans shall extend beyond a date on which Company is required
to make a scheduled payment of principal of such Class of Term Loans, unless the
sum of (1) the aggregate principal amount of such Class of Term Loans that are
Base Rate Loans, plus (2) the aggregate principal amount of such Class of Term
Loans that are Eurodollar Rate Loans with Interest
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Periods expiring on or before such date equals or exceeds the principal amount
required to be paid on such Class of Term Loans on such date.
"Interest Rate Agreement" means any interest rate swap agreement, interest rate
cap agreement, interest rate collar agreement or other similar agreement or
arrangement, in each case for the purpose of hedging interest rate risks
associated with Company's operations to which Company or any of its Subsidiaries
is a party.
"Interest Rate Determination Date" means, with respect to any Interest Period,
the date that is two Business Days prior to the first day of such Interest
Period; provided, with respect to any Multicurrency Facility Loan denominated in
British Pounds Sterling, the term "Interest Rate Determination Date" means the
first day of such Interest Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended to
the date hereof and from time to time hereafter, and any successor statute.
"Investment" means (i) any direct or indirect purchase or other acquisition by
Company or any of its Subsidiaries of, or of a beneficial interest in, any of
the Securities of any other Person (other than a Wholly-Owned Subsidiary); (ii)
any direct or indirect redemption, retirement, purchase or other acquisition for
value, by any Subsidiary of Company from any Person (other than Company or any
Wholly-Owned Subsidiary), of any equity Securities of such Subsidiary; (iii) any
direct or indirect loan, advance (other than advances to employees for moving,
entertainment and travel expenses, drawing accounts and similar expenditures in
the ordinary course of business) or capital contribution by Company or any of
its Subsidiaries to any other Person (other than Company or any Wholly-Owned
Subsidiary), including all indebtedness and accounts receivable from that other
Person that are not current assets or did not arise from sales to that other
Person in the ordinary course of business; and (iv) Hedge Agreements. The
amount of any Investment shall be the original cost of such Investment plus the
cost of all additions thereto, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to such
Investment.
"Investment Property Collateral" means "Investment Property" as such term is
defined in the Pledge and Security Agreement.
"Ireland/Puerto Rico Consolidated Excess Cash Flow" means, for any period, an
amount (if positive) equal to the Consolidated Excess Cash Flow (determined in
accordance with the definition of "Consolidated Excess Cash Flow") attributable
to and from Company's and/or its Subsidiaries' operations in Ireland and Puerto
Rico, which operations are restricted from paying or otherwise distributing cash
outside of Ireland or Puerto Rico, as the case may be, pursuant to law or
regulation, or on account of an agreement between Company and/or its
Subsidiaries and the applicable Irish or Puerto Rican Governmental Authority, as
the case may be, which agreement has been entered into in exchange for the grant
of certain benefits to Company and/or such Subsidiaries by such Governmental
Authority.
"Issuance Notice" means a notice in the form of Exhibit A-3.
"Issuing Bank" means US Issuing Bank or a Multicurrency Issuing Bank.
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"Italian Lira" or "Lira" means the lawful currency of the Government of Italy.
"Japanese Yen" or "Y." means the lawful currency of the Government of Japan.
"Joint Venture" means a joint venture, partnership or other similar arrangement,
whether in corporate, partnership or other legal form; provided, in no event
shall any corporate Subsidiary of any Person be considered to be a Joint Venture
to which such Person is a party.
"Judgment Currency" as defined in Section 10.18.
"Landlord Consent and Estoppel" means, with respect to any Leasehold Property, a
letter, certificate or other instrument in writing from the lessor under the
related lease, satisfactory in form and substance to Global Agent, pursuant to
which such lessor agrees, for the benefit of Global Agent, (i) that without any
further consent of such lessor or any further action on the part of the Credit
Party holding such Leasehold Property, such Leasehold Property may be encumbered
pursuant to a Mortgage and may be assigned to the purchaser at a foreclosure
sale or in a transfer in lieu of such a sale (and to a subsequent third party
assignee if Global Agent, any Lender, or an Affiliate of either so acquires such
Leasehold Property), (ii) that such lessor shall not terminate such lease as a
result of a default by such Credit Party thereunder without first giving Global
Agent notice of such default and at least thirty (30) days (or, if such default
cannot reasonably be cured by Global Agent within such period, such longer
period as may reasonably be required) to cure such default, (iii) to the matters
contained in a Waiver and Consent Agreement, and (iv) to such other matters
relating to such Leasehold Property as Global Agent may reasonably request.
"Leasehold Property" means any leasehold interest of any Credit Party as lessee
under any lease of real property, other than any such leasehold interest
designated from time to time by Global Agent in its sole discretion as not being
required to be included in the Collateral.
"Lender" means each financial institution listed on the signature pages hereto
as a Lender, together with each such institution's successors and permitted
assigns; provided, the term "Lenders" shall also include each Swing Line Lender
and each Issuing Bank unless the context otherwise requires.
"Lender Counterparty" means each Lender or any Affiliate thereof counterparty to
a Hedge Agreement.
"Lending Office" means, for each Lender and for each Type of Loan, the office of
such Lender (or of an Affiliate of such Lender) designated for such Type of such
Loan as such Lender may from time to time specify to the applicable Facility
Agent and Company by written notice in accordance with the terms hereof as the
office by which its Loans of such Type are to be made and maintained.
"Letter of Credit" means a US Letter of Credit or a Multicurrency Letter of
Credit.
"Leverage Ratio" means the ratio of (i) Consolidated Total Debt as of the last
day of any Fiscal Quarter to (ii) Consolidated Adjusted EBITDA for the
four-Fiscal Quarter period then ended, in
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each case as set forth in the most recent Compliance Certificate delivered by
Company to Global Agent pursuant to Section 5.1(c).
"LIBOR" means, for any Interest Rate Determination Date with respect to an
Interest Period for a Multicurrency Facility Loan:
(i) the rate per annum (carried out to the fifth decimal place)
equal to the rate determined by Multicurrency Facility Agent to be the
offered rate which appears on the page of the Telerate Screen which
displays an average British Bankers Association Interest Settlement Rate
(such page currently being page number 3740 or 3750, depending on the
applicable Multicurrency) for deposits (for delivery on the first day of
such period) with a term equivalent to such period in the applicable
Multicurrency, determined as of approximately 11:00 a.m. (London, England
time) on such Interest Rate Determination Date, or
(ii) in the event the rate referenced in the preceding clause (i)
does not appear on such page or service or if such page or service shall
cease to be available, the rate per annum (carried to the fifth decimal
place) equal to the rate determined by Multicurrency Facility Agent to be
the offered rate on such other page or other service which displays an
average British Bankers Association Interest Settlement Rate for deposits
(for delivery on the first day of such period) with a term equivalent to
such period in such Multicurrency, determined as of approximately 11:00
a.m. (London, England time) on such Interest Rate Determination Date, or
(iii) in the event the rates referenced in the preceding clauses (i)
and (ii) are not available, the rate per annum equal to the offered
quotation rate (carried out to the fifth decimal place) to first class
banks in the London interbank market by Multicurrency Facility Agent for
deposits (for delivery on the first day of the relevant period) in such
Multicurrency of amounts in Same Day Funds comparable to the principal
amount of the Multicurrency Facility Loan of Multicurrency Facility Agent
for which LIBOR is then being determined with maturities comparable to
such period as of approximately 11:00 a.m. (London, England time) on such
Interest Rate Determination Date.
"Lien" means any lien, mortgage, pledge, assignment, security interest, charge
or encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement to give
any security interest) and any option, trust or other preferential arrangement
having the practical effect of any of the foregoing.
"Loan" means a Tranche A Term Loan, a Tranche B Term Loan, a Tranche C Term
Loan, a Facility Loan or a Swing Line Loan.
"Manufacturing Facilities" means (i) any of the current Target manufacturing
facilities located in Rutherford, New Jersey; Limerick, Ireland; Geneva,
Switzerland; Herouville, France; and, Stetten, Keil and Freiberg, Germany, (ii)
any of the current Company or Subsidiary manufacturing facilities located in
Kalamazoo, Michigan; Allendale, New Jersey; Lebanon, New Hampshire; Hopkinton,
Massachusetts; Santa Clara, California; Arroyo, Puerto Rico; Selzach,
Switzerland; and Cestas, France; and (iii) any other real property (including
all buildings,
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fixtures or other improvements located thereon) owned, leased, operated or used,
in each case for manufacturing by Company's or any of its Subsidiaries',
including Target and its Subsidiaries, or any of their respective predecessors
or Affiliates.
"Margin Stock" as defined in Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
Material Adverse Effect" means a material adverse effect upon (i) the business,
operations, properties, assets, condition (financial or otherwise) or prospects
of Company and its Subsidiaries, including Target and its Subsidiaries, on a
combined basis and after giving effect to the Acquisition, (ii) the ability of
any of the Credit Parties to perform their obligations and pay all amounts due
hereunder or (iii) the ability of any Agent or any Lender to enforce any of
their rights or to collect any of the Obligations then due and payable.
"Material Contract" means any contract or other arrangement to which Company or
any of its Subsidiaries is a party (other than the Credit Documents) for which
breach, nonperformance, cancellation or failure to renew could reasonably be
expected to have a Material Adverse Effect.
"Material Real Estate Asset" means a Real Estate Asset having a fair market
value in excess of $5,000,000; provided, notwithstanding anything herein or in
any other Credit Document to the contrary, any Leasehold Property acquired in
substitution of Company's current Leasehold Property in Puerto Rico shall
constitute a Material Real Estate Asset for all purposes hereof.
"Moody's" means Moody's Investor Services, Inc.
"Mortgage" means a Mortgage in the form of Exhibit J, as it may be amended,
supplemented or otherwise modified from time to time.
"Multicurrency" means any of (i) Dollars, (ii) British Pounds Sterling, (iii)
French Francs, (iv) German Marks, (v) Italian Lira, (vi) Swiss Francs, (vii)
Euros, (viii) ECUs, (ix) Japanese Yen, and (x) any other currency that is (a)
freely available in the international bank market, (b) freely transferable and
freely convertible into Dollars, (c) readily utilized for the settlement of
private international debt transactions, and (d) is agreed in writing to be
added to the definition of "Multicurrency" by each Multicurrency Lender and the
applicable Multicurrency Swing Line Lender.
"Multicurrency Equivalent" means, with respect to a specified amount of Dollars,
the amount of Multicurrency into which such amount of Dollars would be
converted, based on the applicable Spot Rate of Exchange.
"Multicurrency Facility" means the facility described in Sections 2.2(c) and
2.2(d) providing for Loans to Company by Multicurrency Facility Lenders in the
aggregate principal amount of such Lenders' Multicurrency Facility Commitments.
"Multicurrency Facility Agent" as defined in the preamble hereto.
"Multicurrency Facility Alternative Rate" means such rate of interest per annum
determined by Multicurrency Facility Agent and Company as an alternative basis
(i) for determining the rates of
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interest from time to time applicable to Loans under the Multicurrency Facility
and/or (ii) upon which Loans may be maintained under the Multicurrency Facility,
in each case pursuant to Section 2.21, which rate of interest shall be
determined within thirty (30) days of notification to Company in accordance with
the provisions of Section 2.21. If no such alternative basis is agreed upon by
Multicurrency Facility Agent and Company, each Multicurrency Facility Lender
shall certify a reasonable alternative basis for maintaining Loans under the
Multicurrency Facility that reflects such Multicurrency Facility Lender's cost
of funds (a "substitute basis"), which substitute basis may include (without
limitation) alternative Interest Periods, alternative currencies or alternative
rates of interest.
"Multicurrency Facility Alternative Rate Loan" means a Loan for which the rate
of interest is determined by reference to the Multicurrency Facility Alternative
Rate, solely for purposes of Section 2.21.
"Multicurrency Facility Commitment" means the commitment of a Lender to make or
otherwise fund any Credit Extension (other than any Term Loan, US Facility Loan
or US Letter of Credit). The amount of each Lender's Multicurrency Facility
Commitment, if any, as of the Closing Date is set forth on Appendix B and shall
be subject to any adjustment or reduction pursuant to the terms and conditions
hereof.
Multicurrency Facility Commitment Period" means the period from the Closing Date
to but excluding the Multicurrency Facility Commitment Termination Date.
"Multicurrency Facility Commitment Termination Date" means the earliest to occur
of (i) December 31, 1998 if the Term Loans are not made on or before that date;
(ii) the sixth anniversary of the Closing Date, (iii) the date the Multicurrency
Facility Commitments are permanently reduced to zero pursuant to Section
2.11(b), 2.12(b) or 2.13, and (iv) the date of the termination of the
Multicurrency Facility Commitments pursuant to Section 8.1.
"Multicurrency Facility Exposure" means, with respect to any Lender as of any
date of determination:
(i) prior to the termination of the Multicurrency Facility
Commitments, such Lender's Multicurrency Facility Commitment; and
(ii) after the termination of the Multicurrency Facility Commitments,
the sum of (a) the Dollar Equivalent of the aggregate outstanding
principal amount of the Multicurrency Facility Loans of such Lender, (b)
in the case of a Multicurrency Issuing Bank, the Dollar Equivalent of the
aggregate Multicurrency Letter of Credit Usage in respect of all
Multicurrency Letters of Credit issued thereby (net of the Dollar
Equivalent of any participations therein by any other Lenders or any
unreimbursed drawing thereunder), (c) the Dollar Equivalent of the
aggregate amount of all participations purchased by such Lender in any
outstanding Multicurrency Letters of Credit or any unreimbursed drawing
under any Multicurrency Letter of Credit, (d) in the case of Multicurrency
Swing Line Lender, the Dollar Equivalent of the aggregate outstanding
principal amount of all Multicurrency Swing Line Loans (net of any
participation therein purchased by any other Lenders), and (e) the Dollar
Equivalent of the aggregate amount
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of all participations purchased by such Lender in any outstanding
Multicurrency Swing Line Loans.
"Multicurrency Facility Lender" means a Lender having Multicurrency Facility
Exposure.
"Multicurrency Facility Loan" means a loan made by a Lender to Company pursuant
to Section 2.2(c); provided, such term shall include a Multicurrency Swing Line
Loan, unless the context otherwise requires.
"Multicurrency Facility Mandatory Cost" means a rate per annum determined by
Multicurrency Reference Bank and notified thereby to Multicurrency Facility
Agent calculated in accordance with the following formula:
MFMC = BY + S(Y-Z) + (F x 0.01) / 100 - (B+S)
where on the day of application of the formula:
"MFMC" means Multicurrency Facility Mandatory Cost, per annum;
"B" means the percentage of Multicurrency Reference Bank's Eligible
Liabilities (in excess of any stated minimum) by reference to which
the Bank of England and/or the Financial Services Authority
requires Multicurrency Reference Bank to hold on a non-interest
bearing deposit account in accordance with its Cash ratio
requirements;
"Y" means the percentage rate per annum at which sterling deposits
are offered by Multicurrency Reference Bank to leading banks in the
London interbank market at or about 11:00 a.m. (London, England
time) on that day for the relevant period;
"F" means the rate of charge payable by Multicurrency Reference
Bank to the Financial Services Authority under paragraph 2.02 or
2.03 (as appropriate) of the Fees Regulations (but where for this
purpose the figure at paragraph 2.02b or 2.03b shall be deemed to
be zero) and expressed in British Pounds Sterling per L.1,000,000
of the Fee Base of Multicurrency Reference Bank;
"S" means the percentage of Multicurrency Reference Bank's Eligible
Liabilities which the Bank of England (or other relevant United
Kingdom governmental authority or agency) requires Multicurrency
Reference Bank to place as a Special Deposit; and
"Z" means the interest rate per annum payable by the Bank of
England to Multicurrency Reference Bank on Special Deposits.
(i) For the purposes of this definition (a) "Eligible Liabilities"
and "Special Deposits" shall have the meanings given to them at the time
of application of the above formula under or pursuant to the Bank of
England Act 1998 or by the Bank of England (as appropriate); (b) "Fee
Base" has the meaning given to it in the Fees Regulations; and (c) "Fees
Regulations" means (1) prior to March 31, 1999 the Banking Supervision
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(Fees) Regulations 1998; and (2) on or after March 31, 1999, any
regulations governing the payment of fees for banking supervision.
(ii) In the application of the above formula, B, Y, S, and Z are
included in the formula as figures and not as percentages, e.g. if B =
0.5% and Y = 15%, BY is calculated as 0.5 x 15 and not as 0.5% x 15%. A
negative result obtained from subtracting Z from Y is to be treated as
zero.
(iii) The above formula is applied on the first day of each relevant
period comprised in the relevant Interest Period.
(iv) Each rate calculated in accordance with the above formula is,
if necessary, rounded upward to four decimal places.
(v) Multicurrency Facility Agent may, from time to time, after
consultation with Company and Lenders, determine and notify to Company
and Lenders any amendments or variations which are required to be made to
the formula set out above in order to comply with any requirements from
time to time imposed by any applicable regulatory authority in relation
to Multicurrency Facility Loans denominated in British Pounds Sterling
(including, without limitation, any requirements relating to British
Pounds Sterling primary liquidity) and any such determination shall, in
the absence of manifest error, be conclusive and binding on Company,
Lenders, Agents and Issuing Bank.
"Multicurrency Facility Note" means a promissory note in the form of Exhibit
B-6, as it may be amended, supplemented or otherwise modified from time to time.
"Multicurrency Issuing Bank" means each of Bank of America and each other
Multicurrency Facility Lender, or any Affiliate thereof, which has been
designated as a Multicurrency Issuing Bank by Company and which is reasonably
acceptable to Global Agent, together with its permitted successors and assigns
in such capacity.
"Multicurrency Letter of Credit" means a standby letter of credit issued or to
be issued by a Multicurrency Issuing Bank.
"Multicurrency Letter of Credit Sublimit" means the lesser of (i) $15,000,000
(to be divided amongst all Multicurrency Issuing Banks in a manner to be agreed
upon in writing between Multicurrency Issuing Banks and Company), and (ii) the
aggregate unused amount of the Multicurrency Facility Commitments then in
effect.
"Multicurrency Letter of Credit Usage" means, as at any date of determination,
the sum of (i) the Dollar Equivalent of the maximum aggregate amount which is,
or at any time thereafter may become, available for drawing under all
Multicurrency Letters of Credit then outstanding, plus (ii) the Dollar
Equivalent of the aggregate amount of all drawings under Multicurrency Letters
of Credit honored by the applicable Multicurrency Issuing Bank and not
theretofore reimbursed by or on behalf of Company.
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"Multicurrency Offered Rate" means, for any day, the rate of interest, plus a
margin, if any, offered, in writing by the applicable Multicurrency Swing Line
Lender and accepted by Company.
"Multicurrency Offered Rate Loan" means a Loan bearing interest at the
Multicurrency Offered Rate.
"Multicurrency Overnight Rate" means, for any day, the rate of interest per
annum at which overnight deposits in a Multicurrency, in an amount approximately
equal to the amount with respect to which such date is being determined, would
be offered for such day by Multicurrency Facility Agent to major banks in the
London or other applicable offshore interbank market. The Multicurrency
Overnight Rate for any day which is not a Business Day shall be the
Multicurrency Overnight Rate for the preceding Business Day.
"Multicurrency Qualifying Lender" as defined in Section 2.23(h).
"Multicurrency Rate" means, for any Interest Rate Determination Date with
respect to an Interest Period for a Multicurrency Facility Loan, the following
applicable rate, in each case for a term comparable to such Interest Period:
(i) for any Multicurrency Facility Loan denominated in British
Pounds Sterling, the rate per annum equal to the sum of (a) LIBOR plus
(b) Multicurrency Facility Mandatory Cost; and
(ii) for any Multicurrency Facility Loan denominated in any other
Multicurrency, the rate per annum equal to LIBOR.
"Multicurrency Reference Bank" means Multicurrency Facility Agent,
together with its permitted successors and assigns, in its individual capacity.
"Multicurrency Reimbursement Date" as defined in Section 2.3(b)(iii).
"Multicurrency Swing Line Lender" means each of Bank of America and each
other Multicurrency Facility Lender which has been designated by Company to act
as a Multicurrency Swingline Lender and which is reasonably acceptable to Global
Agent, together with its permitted successors and assigns in such capacity.
"Multicurrency Swing Line Loan" means a loan made by a Multicurrency Swing
Line Lender to Company pursuant to Section 2.2(d).
"Multicurrency Swing Line Note" means a promissory note in the form of
Exhibit B-7, as it may be amended, supplemented or otherwise modified from time
to time.
"Multicurrency Swing Line Sublimit" means the lesser of (i) $50,000,000
(to be divided amongst all Multicurrency Swing Line Lenders in a manner to be
agreed upon in writing between Multicurrency Swing Line Lenders and Company),
and (ii) the aggregate unused amount of Multicurrency Facility Commitments then
in effect.
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"Multicurrency Swing Line Subsidiary" means any Wholly-Owned Subsidiary of
Company that has been designated by Company to borrow Multicurrency Swing Line
Loans and with respect to which (i) Company has acknowledged in writing to
Global Agent its Guaranty of all Obligations of such Multicurrency Swing Line
Subsidiary hereunder, and (ii) to which the applicable Multicurrency Swing Line
Lender has agreed to make Multicurrency Swing Line Loans.
"Multiemployer Plan" means any Employee Benefit Plan which is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"NAIC" means the National Association of Insurance Commissioners.
"Narrative Report" means, with respect to the financial statements for
which such narrative report is required, a narrative report describing the
operations of Company and its Subsidiaries in a form acceptable to Global Agent
for the applicable Fiscal Quarter or Fiscal Year and for the period from the
beginning of the then current Fiscal Year to the end of such period to which
such financial statements relate; provided, at any time Company is a reporting
company for purposes of the Exchange Act, the term "Narrative Report" shall mean
the report filed by Company with the Securities and Exchange Commission for the
financial statement to which such report relates.
"National Currency Unit" means the unit of currency (other than a euro
unit) of a Participating Member State.
"NBD" as defined in the preamble hereto.
"Net Asset Sale Proceeds" means, with respect to any Asset Sale, an amount
equal to the difference of (i) Cash payments (including any Cash received by way
of deferred payment pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received) received from such Asset Sale,
minus (ii) any bona fide direct costs incurred in connection with such Asset
Sale, including (a) income or gains taxes reasonably estimated to be actually
payable as a result of any gain recognized in connection with such Asset Sale
and (b) payment of the outstanding principal amount of, premium or penalty, if
any, and interest on any Indebtedness (other than the Loans) that is secured by
a Lien on the stock or assets in question and that is required to be repaid
under the terms thereof as a result of such Asset Sale.
"Net Insurance/Condemnation Proceeds" means the difference of (i) any Cash
payments or proceeds received by Company or any of its Subsidiaries (a) under
any casualty insurance policy in respect of a covered loss thereunder or (b) as
a result of the taking of any assets of Company or any of its Subsidiaries by
any Person pursuant to the power of eminent domain, condemnation or otherwise,
or pursuant to a sale of any such assets to a purchaser with such power under
threat of such a taking, minus, in each case, (ii) (a) any actual and reasonable
documented costs incurred by Company or any of its Subsidiaries in connection
with the adjustment or settlement of any claims of Company or such Subsidiary in
respect thereof, and (b) any bona fide direct costs incurred in connection with
any sale of such assets as referred to in clause (i)(b) of this definition,
including income or gains taxes reasonably estimated to be actually payable as a
result of any gain recognized in connection therewith.
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"NMS" as defined in the preamble hereto.
"Non-Rated Facility Lender" as defined in Section 10.6(i).
"Non-Recourse Debt" means Indebtedness (i) as to which neither Company nor
any of its Subsidiaries (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness), (b) is
directly or indirectly liable (as a guarantor or otherwise), or (c) constitutes
the lender; (ii) no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against a Subsidiary) would
permit (upon notice, lapse of time or both) any holder of any other Indebtedness
of Company or any of its Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity; and (iii) as to which the lenders thereof have been
notified in writing that they will not have any recourse to the stock or assets
of Company or any of its Subsidiaries.
"Note" means a Tranche A Term Loan Note, a Tranche B Term Loan Note, a
Tranche C Term Loan Note, a Facility Note or a Swing Line Note.
"Notice" means a Funding Notice, an Issuance Notice or a
Conversion/Continuation Notice.
"Obligations" means, with respect to any Credit Party, obligations of such
Credit Party, whether now existing or hereafter made, incurred or created,
whether absolute or contingent, liquidated or unliquidated, whether due or not
due, and however arising under or in connection herewith and any other Credit
Document and any Hedge Agreement with a Lender Counterparty, including those
arising under successive borrowing transactions hereunder which shall either
continue the Obligations of such Credit Party from time to time or renew them
after they have been satisfied and including interest which, but for the filing
of a petition in bankruptcy with respect to such Credit Party, would have
accrued on any Obligation, whether or not a claim is allowed against such Credit
Party for such interest in the related bankruptcy proceeding, but excluding
inchoate indemnification obligations.
"Obligee Guarantor" as defined in Section 7.7.
"Organizational Documents" means (i) with respect to any corporation, its
certificate or articles of incorporation, as amended, and its by-laws, as
amended, (ii) with respect to any limited partnership, its certificate of
limited partnership, as amended, and its partnership agreement, as amended,
(iii) with respect to any general partnership, its partnership agreement, as
amended, and (iv) with respect to any limited liability company, its articles of
organization, as amended, and its operating agreement, as amended. In the event
any term or condition of this Agreement or any other Credit Document requires
any Organizational Document to be certified by a secretary of state or similar
governmental official, the reference to any such "Organizational Document" shall
only be to a document of a type customarily certified by such governmental
official.
"Original Currency" as defined in Section 10.18.
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"Other Taxes" means any stamp, court or documentary taxes or any other
excise or property taxes, charges or similar levies which arise from any payment
made hereunder or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, this Agreement or any other
Credit Document.
"Participating Member State" means each country so described in any EMU
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Pension Plan" means any Employee Benefit Plan, other than a Multiemployer
Plan, which is subject to Section 412 of the Internal Revenue Code or Section
302 of ERISA.
"Permitted Acquisition" means any acquisition, whether by purchase, merger
or otherwise, of all or substantially all of the assets of, all of the equity
Securities of, or a business line or a division of, any Person; provided, (i)
immediately prior to, and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing or would result therefrom, (ii)
all transactions in connection therewith shall be consummated in accordance with
all applicable laws and in conformity with all applicable Governmental
Authorizations, (iii) all of the equity Securities (except for any such
Securities in the nature of directors qualifying shares required pursuant to
applicable law) acquired or otherwise issued by such Person or any newly formed
Subsidiary of Company in connection with such acquisition shall be owned 100%
by Company or a Subsidiary thereof, and Company shall have taken, or caused to
be taken, as of the date such Person becomes a Subsidiary of Company, each of
the actions set forth in Sections 5.9, as applicable, (iv) Company shall be in
compliance with, immediately before and after giving pro forma effect to such
acquisition, each of Sections 6.6(a), 6.6(b) and 6.6(c) (as determined in
accordance with Section 6.6(e)), (v) Company shall have delivered to Global
Agent a certificate in the form of a Compliance Certificate evidencing such
compliance with such Sections, together with all relevant financial information
for such acquired assets, and (vi) any Person or assets or division as acquired
in accordance herewith shall be predominantly in the medical device or medical
product manufacturing, distribution, and/or sales business or such other lines
of business in which Company and/or its Subsidiaries are engaged as of the
Closing Date.
"Permitted Liens" means each of the Liens permitted pursuant to Section
6.2.
"Permitted Securitization Transaction" means any transaction or series of
transactions pursuant to which Company or any of its Subsidiaries may sell,
convey or otherwise transfer to a Securitization Entity (in the case of a
transfer by Company or any of its Subsidiaries) or any other Person (in case of
a transfer by a Securitization Entity), or may grant a security interest in, any
accounts receivable (whether now existing or arising or acquired in the future)
of Company or any of its Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such accounts receivable, all
contracts and contract rights and all guarantees or other obligations in respect
to such accounts receivable, proceeds of such accounts receivable and other
assets (including contract rights) which are customarily transferred or in
respect of which security interests are customarily granted in connection with
asset securitization transactions involving accounts receivable, all of the
foregoing for the purpose of providing working capital financing on terms that
are more favorable to Company and its Subsidiaries than would otherwise be
available at that time; provided, (i) Company and/or its Subsidiaries enters
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into such transaction or series of transactions with a Lender or an Affiliate
thereof, (ii) the obligations owed to third parties with respect to such
transaction shall not exceed $200,000,000 at any one time, and (iii) the
proceeds thereof shall be applied in accordance with Section 2.13(e).
"Person" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
"Phase I Report" means, with respect to any Manufacturing Facility, a
Phase I environmental assessment for such Manufacturing Facility by one or more
environmental consulting firms reasonably satisfactory to Global Agent that (i)
conforms to the ASTM Standard Practice for Environmental Site Assessments: Phase
I Environmental Site Assessment Process, E 1527 or such other standards
reasonably satisfactory to Global Agent, and (ii) if reasonably deemed necessary
by Global Agent, includes an assessment of asbestos-containing materials at such
Manufacturing Facilities.
"Plan of Correction" as defined in Section 4.20.
"Pledge and Security Agreement" means the Pledge and Security Agreement in
the form of Exhibit I, as it may be amended, supplemented or otherwise modified
from time to time.
"Post Closing Adjustment" means the "Working Capital Adjustment," as such
term is defined in the Acquisition Agreement, together with any other payments
contemplated thereby.
"Principal Office" means, for each of Global Agent, US Facility Agent,
Multicurrency Facility Agent, each Swing Line Lender and each Issuing Bank, such
Person's "Principal Office" as set forth on Appendix C, or such other office as
such Person may from time to time designate in writing to Company, Global Agent,
and with respect to Global Agent and each Facility Agent, to each applicable
Lender.
"Projections" as defined in Section 4.5.
"Pro Rata Share" means
(i) with respect to all payments, computations and other matters
relating to the Tranche A Term Loan of any Lender, the percentage
obtained by dividing (a) the Tranche A Term Loan Exposure of that Lender
by (b) the aggregate Tranche A Term Loan Exposure of all Lenders;
(ii) with respect to all payments, computations and other matters
relating to the Tranche B Term Loan of any Lender, the percentage
obtained by dividing (a) the Tranche B Term Loan Exposure of such Lender
by (b) the aggregate Tranche B Term Loan Exposure of all Lenders;
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(iii) with respect to all payments, computations and other matters
relating to the Tranche C Term Loan of any Lender, the percentage
obtained by dividing (a) the Tranche C Term Loan Exposure of such Lender
by (b) the aggregate Tranche C Term Loan Exposure of all Lenders;
(iv) with respect to all payments, computations and other matters
relating to the US Facility Commitment or US Facility Loans of any
Lender, any US Letters of Credit issued or participations therein
purchased by any Lender, or any participations in any US Swing Line Loans
purchased by any Lender, the percentage obtained by dividing (a) the US
Facility Exposure of that Lender by (b) the aggregate US Facility
Exposure of all Lenders; and
(v) with respect to all payments, computations and other matters
relating to the Multicurrency Facility Commitment or Multicurrency
Facility Loans of any Lender, any Multicurrency Letters of Credit issued
or participations therein purchased by any Lender, or any participations
in any Multicurrency Swing Line Loans purchased by any Lender, the
percentage obtained by dividing (a) the Multicurrency Facility Exposure
of that Lender by (b) the aggregate Multicurrency Facility Exposure of
all Lenders.
For all other purposes with respect to each Lender, "Pro Rata Share" means the
percentage obtained by dividing (I) the sum of the Tranche A Term Loan Exposure
of that Lender, the Tranche B Term Loan Exposure of that Lender, the Tranche C
Term Loan Exposure of that Lender, the US Facility Exposure of that Lender and
the Multicurrency Facility Exposure of that Lender, by (II) the sum of the
aggregate Tranche A Term Loan Exposure of all Lenders, the aggregate Tranche B
Term Loan Exposure of all Lenders, the aggregate Tranche C Term Loan Exposure
of all Lenders, the aggregate US Facility Exposure of all Lenders, and the
aggregate Multicurrency Facility Exposure of all Lenders.
"Purchase Money Note" means a promissory note of a Securitization Entity
evidencing a line of credit, which may be irrevocable, from Company or any
Subsidiary of Company in connection with a Permitted Securitization Transaction,
which note shall be repaid from Cash available to the Securitization Entity,
other than (i) amounts required to be established as reserves pursuant to
agreements, (ii) amounts paid to investors in respect of interest, principal and
other amounts owing to such investors and (iii) amounts paid in connection with
the purchase of newly generated receivables.
"Real Estate Asset" means, at any time of determination, any interest then
owned by any Credit Party in any real property.
"Record Document" means, with respect to any Leasehold Property, (i) the
lease evidencing such Leasehold Property or a memorandum thereof, executed and
acknowledged by the owner of the affected real property, as lessor, or (ii) if
such Leasehold Property was acquired or subleased from the holder of a Recorded
Leasehold Interest, the applicable assignment or sublease document, executed and
acknowledged by such holder, in each case in form sufficient to give such
constructive notice upon recordation and otherwise in form reasonably
satisfactory to Global Agent.
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"Recorded Leasehold Interest" means a Leasehold Property with respect to
which a Record Document has been recorded in all places necessary or desirable,
in Global Agent's reasonable judgment, to give constructive notice of such
Leasehold Property to third-party purchasers and encumbrancers of the affected
real property.
"Reduced Leverage/Improved Ratings Status" means, at any date of
determination, (i) the Leverage Ratio is less than or equal to 2.75:1.00 (after
giving effect on a pro forma basis to any transaction or event giving rise to a
determination of the existence of the Reduced Leverage/Improved Ratings Status),
or (ii) Moody's has assigned to Company's long term Indebtedness for borrowed
money a rating of at least Baa3, and S&P has assigned to Company's long term
Indebtedness for borrowed money a rating of at least BBB-.
"Reduction" as defined in Section 2.11(b).
"Reduction Date" as defined in Section 2.11(b).
"Reference Rate" means the rate of interest in effect for such day as
publicly announced from time to time by Bank of America in San Francisco,
California, as its "reference rate." The "reference rate" is a rate set by Bank
of America based upon various factors including Bank of America's costs and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in the reference rate announced by Bank of
America shall take effect at the opening of business on the day specified in the
public announcement of such change.
"Register" as defined in Section 2.6(b).
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Reimbursement Date" means a US Reimbursement Date or a Multicurrency
Reimbursement Date.
"Related Agreements" means, collectively, the Acquisition Agreement and
the Transition Agreements.
"Release" means any release, spill, emission, leaking, pumping, pouring,
injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching
or migration of any Hazardous Material into the indoor or outdoor environment
(including the abandonment or disposal of any barrels, containers or other
closed receptacles containing any Hazardous Material).
"Requisite Class Lenders" means, at any time of determination:
(i) for the Class of Lenders having Tranche A Term Loan Exposure,
Lenders having or holding at least 51% of the sum of the aggregate
Tranche A Term Loan Exposure of all Lenders;
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(ii) for the Class of Lenders having Tranche B Term Loan Exposure,
Lenders having or holding at least 51% of the sum of the aggregate
Tranche B Term Loan Exposure of all Lenders;
(iii) for the Class of Lenders having Tranche C Term Loan Exposure,
Lenders having or holding at least 51% of the sum of the aggregate
Tranche C Term Loan Exposure of all Lenders;
(iv) for the Class of Lenders having US Facility Exposure, Lenders
having or holding at least 51% of the sum of the aggregate US Facility
Exposure of all Lenders; and
(v) for the Class of Lenders having Multicurrency Facility
Exposure, Lenders having or holding at least 51% of the sum of the
aggregate Multicurrency Facility Exposure of all Lenders.
"Requisite Lenders" means Lenders having or holding at least 51% of the
sum of (i) the aggregate Tranche A Term Loan Exposure of all Lenders, (ii) the
aggregate Tranche B Term Loan Exposure of all Lenders, (iii) the aggregate
Tranche C Term Loan Exposure of all Lenders, (iv) the aggregate US Facility
Exposure of all Lenders, and (v) the aggregate Multicurrency Facility Exposure
of all Lenders.
"Restricted Junior Payment" means (i) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock of Company
now or hereafter outstanding, except a dividend payable solely in shares of that
class of stock to the holders of that class, (ii) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of stock of Company now or hereafter
outstanding, (iii) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any class
of stock of Company now or hereafter outstanding, and (iv) any payment or
prepayment of principal of, premium, if any, or interest on, or redemption,
purchase, retirement, defeasance (including in-substance or legal defeasance),
sinking fund or similar payment with respect to, any Subordinated Indebtedness.
"Restricted Lender" as defined in Section 2.24.
"Same Day Funds" means (i) with respect to disbursements and payments in
Dollars, immediately available funds, and (ii) with respect to disbursements and
payments in a Multicurrency, same day or other funds as may be determined by
Multicurrency Facility Agent to be customary in the place of disbursement or
payment for the settlement of international banking transactions in such
Multicurrency.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw Hill
Corporation.
"Secured Obligations" as defined in the applicable Collateral Document in
respect of any Collateral.
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"Securities" means any stock, shares, partnership interests, voting trust
certificates, certificates of interest or participation in any profit-sharing
agreement or arrangement, options, warrants, bonds, debentures, notes, or other
evidences of indebtedness, secured or unsecured, convertible, subordinated or
otherwise, or in general any instruments commonly known as "securities" or any
certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, and any successor statute.
"Securitization Entity" means a Wholly-Owned Subsidiary (or another Person
in which Company or any Subsidiary of Company makes an Investment and to which
Company or any Subsidiary of Company transfers accounts receivable and related
assets) that engages in no activities other than in connection with the
financing of accounts receivable and that is designated by the Board of
Directors of Company (as provided below) as a Securitization Entity, (i) no
portion of the Indebtedness (contingent or otherwise) of which (a) is guaranteed
by Company or any Subsidiary of Company other than pursuant to Standard
Securitization Undertakings, (b) is recourse to or obligates Company or any
Subsidiary of Company in any way other than pursuant to Standard Securitization
Undertakings or (c) subjects any property or asset of Company or any Subsidiary
of Company, directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to Standard Securitization
Undertakings, (ii) with which neither Company nor any Subsidiary of Company has
any material contract, agreement, arrangement or understanding other than on
terms no less favorable to Company or such Subsidiary than those that might be
obtained at the time from Persons that are not Affiliates of Company, other than
fees payable in the ordinary course of business in connection with servicing
receivables of such entity, and (iii) to which neither Company nor any
Subsidiary of Company has any obligation to maintain or preserve such entity's
financial condition or cause such entity to achieve certain levels of operating
results. Any such designation by the Board of Directors of Company shall be
evidenced to Global Agent by filing with the Global Agent a certified copy of
the resolution of the Board of Directors of Company giving effect to such
designation and a certificate of an Authorized Officer of Company certifying
that such designation complied with the foregoing conditions. Notwithstanding
anything in this Agreement or any other Credit Document to the contrary, no
Securitization Entity shall be deemed or otherwise required to be a Guarantor
hereunder.
"Selected Currency" as defined in Section 2.26(g).
"Seller" as defined in the recitals hereto.
"Solvent" means, with respect to any Person, that as of the date of
determination both (i) (a) the then fair saleable value of the property of such
Person is (1) greater than the total amount of liabilities (including contingent
liabilities) of such Person and (2) not less than the amount that will be
required to pay the probable liabilities on such Person's then existing debts as
they become absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person; (b) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (c) such Person does
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not intend to incur, or believe (nor should it reasonably believe) that it will
incur, debts beyond its ability to pay such debts as they become due; and (ii)
such Person is "solvent" within the meaning given that term and similar terms
under applicable laws relating to fraudulent transfers and conveyances. For
purposes of this definition, the amount of any contingent liability at any time
shall be computed as the amount that, in light of all of the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
"Spot Rate of Exchange" means (i) in determining the Multicurrency
Equivalent of a specified amount of Dollars as of any date, the spot exchange
rate determined by Global Agent in accordance with its usual procedures for the
purchase thereby of such Multicurrency with Dollars at approximately 11:00 a.m.
(New York City time) on the Business Day that is three (3) Business Days prior
to such settlement date; and (ii) in determining the Dollar Equivalent of a
specified amount of any Multicurrency as of any date, the spot rate of exchange
determined by Global Agent in accordance with its usual procedures for the
purchase thereby of US Dollars with such Multicurrency at approximately 11:00
a.m. (New York City time) on the Business Day that is two (2) Business Days
prior to such date.
"Standard Securitization Undertakings" means representations, warranties,
covenants and indemnities entered into by Company or any Subsidiary of Company
that are reasonably customary in accounts receivable securitization
transactions.
"Stryker Family Group" means the descendants of L. Lee Stryker and members
of such descendants' families and trusts for the benefit of such Persons.
"Subject Transaction" as defined in Section 6.6(e).
"Subordinated Indebtedness" means any Indebtedness of Company subordinated
in right of payment to the Obligations.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof; provided, in determining the percentage of ownership interests of any
Person controlled by another Person, no ownership interest in the nature of a
"qualifying share" of the former Person shall be deemed to be outstanding.
"Substitute Base Rate Loans" as defined in Section 2.21(a).
"Supplemental Collateral Agent" as defined in Section 9.8(c).
"Swing Line Lender" means US Swing Line Lender or a Multicurrency Swing
Line Lender.
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"Swing Line Loan" means a US Swing Line Loan or a Multicurrency Swing Line
Loan.
"Swing Line Note" means a US Swing Line Note or a Multicurrency Swing Line
Note.
"Swing Line Sublimit" means the Multicurrency Swing Line Sublimit or the
US Swing Line Sublimit.
"Swiss Franc" or "SWFr" means the lawful currency of the Government of
Switzerland.
"Syndication Agent" as defined in the preamble hereto.
"Systems" means hardware, firmware or software systems associated with
information processing and delivery, operations or services (e.g., security and
alarms, elevators, communications, and HVAC) operated by, provided to or
otherwise reasonably necessary to the business or operations of Company and its
Subsidiaries.
"Target" as defined in the recitals hereto.
"TARGET Business Day" means any day when the TARGET clearing system for
transactions in the euro and the National Currency Unit of Participating Member
States is scheduled to be open for business.
"Taxes" means any and all taxes, levies, assessments, imposts, duties,
deductions, fees, withholdings or similar charges, and all liabilities with
respect thereto, excluding, in the case of each Lender, each Issuing Bank and
each Agent, respectively, taxes imposed on or measured by its net income (or
taxes imposed in lieu of taxes on net income) by the jurisdiction (or any
political subdivision thereof) under the laws of which such Lender, such
Issuing Bank or such Agent, as the case may be, is organized or maintains a
lending office.
"Term Loan " means a Tranche A Term Loan, a Tranche B Term Loan or a
Tranche C Term Loan.
"Term Loan Maturity Date" means the Tranche A Term Loan Maturity Date, the
Tranche B Term Loan Maturity Date or the Tranche C Term Loan Maturity Date.
"Total Utilization of US Facility Commitments" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all outstanding
US Facility Loans (other than US Facility Loans made for the purpose of
reimbursing US Issuing Bank for any amount drawn under any US Letter of Credit
but not yet so applied), (ii) the aggregate principal amount of all outstanding
US Swing Line Loans, and (iii) the US Letter of Credit Usage.
"Total Utilization of Multicurrency Facility Commitments" means, as at any
date of determination, without duplication, the sum of (i) the Dollar Equivalent
of the aggregate principal amount of all outstanding Multicurrency Facility
Loans, (other than Multicurrency Facility Loans made for the purpose of
reimbursing any Multicurrency Issuing Bank for any amount drawn under any
Multicurrency Letter of Credit but not yet so applied), (ii) the Dollar
Equivalent of the aggregate principal amount of all outstanding Multicurrency
Swing Line Loans, and (iii) the Multicurrency Letter of Credit Usage.
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"Tranche A Term Loan" means a Tranche A Term Loan made by a Lender to
Company pursuant to Section 2.1.
"Tranche A Term Loan Amount" means the amount of the Tranche A Term Loan
to be made by a Lender to Company. The amount of each Lender's Tranche A Term
Loan Amount, if any, as of the Closing Date is set forth on Appendix A.
"Tranche A Term Loan Exposure" means, with respect to any Lender, as of
any date of determination, the outstanding principal amount of the Tranche A
Term Loans of such Lender; provided, at any time prior to the making of the
Tranche A Term Loans, the Tranche A Term Loan Exposure of any Lender shall be
equal to such Lender's Tranche A Term Loan Amount.
"Tranche A Term Loan Maturity Date" means the earlier of (i) the sixth
anniversary of the Closing Date, and (ii) the date that all Tranche A Term Loans
shall become due and payable in full hereunder, whether by acceleration or
otherwise.
"Tranche A Term Loan Note" means a promissory note in the form of Exhibit
B-1, as it may be amended, supplemented or otherwise modified from time to time.
"Tranche B Term Loan " means a Tranche B Term Loan made by a Lender to
Company pursuant to Section 2.1.
"Tranche B Term Loan Amount" means the amount of the Tranche B Term Loan
to be made by a Lender to Company. The amount of each Lender's Tranche B Term
Loan Amount, if any, as of the Closing Date is set forth on Appendix A.
"Tranche B Term Loan Exposure" means, with respect to any Lender, as of
any date of determination, the outstanding principal amount of the Tranche B
Term Loans of such Lender; provided, at any time prior to the making of the
Tranche B Term Loans, the Tranche B Term Loan Exposure of any Lender shall be
equal to such Lender's Tranche B Term Loan Amount.
"Tranche B Term Loan Maturity Date" means the earlier of (i) the seventh
anniversary of the Closing Date, and (ii) the date that all Tranche B Term Loans
shall become due and payable in full hereunder, whether by acceleration or
otherwise.
"Tranche B Term Loan Note" means a promissory note in the form of Exhibit
B-2, as it may be amended, supplemented or otherwise modified from time to time.
"Tranche C Term Loan " means a Tranche C Term Loan made by a Lender to
Company pursuant to Section 2.1.
"Tranche C Term Loan Amount" means the amount of the Tranche C Term Loan
to be made by a Lender to Company. The amount of each Lender's Tranche C Term
Loan Amount, if any, as of the Closing Date is set forth on Appendix A.
"Tranche C Term Loan Maturity Date" means the earlier of (i) the eighth
anniversary of the Closing Date, and (ii) the date that all Tranche C Term Loans
shall become due and payable in full hereunder, whether by acceleration or
otherwise.
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"Tranche C Term Loan Exposure" means, with respect to any Lender, as of
any date of determination, the outstanding principal amount of the Tranche C
Term Loans of such Lender; provided, at any time prior to the making of the
Tranche C Term Loans, the Tranche C Term Loan Exposure of any Lender shall be
equal to such Lender's Tranche C Term Loan Amount.
"Tranche C Term Loan Note" means a promissory note in the form of Exhibit
B-3, as it may be amended, supplemented or otherwise modified from time to time.
"Transaction Costs" means the fees, costs and expenses payable by Company
in connection with the transactions contemplated by the Credit Documents and the
Related Agreements.
"Transition Agreements" means, collectively, (i) that certain Transitional
Services Agreement dated as of the Closing Date, by and between Seller and
Company, and (ii) that certain Transitional Intellectual Property License
Agreement, dated as of the Closing Date, by and between Seller and Company, as
each such agreement may be amended, supplemented or otherwise modified from time
to time to the extent pursuant to Section 6.13.
"Treaty on European Union" means the Treaty of Rome of March 25, 1957, as
amended by the Single European Act 1986 and the Maastricht Treaty (which was
signed at Maastricht on February 1, 1992 and came into force on November 1,
1993), as amended from time to time.
"Type of Loan" means (i) with respect to either Term Loans or US Facility
Loans, a Base Rate Loan or a Eurodollar Rate Loan, and (ii) with respect to US
Swing Line Loans, a Base Rate Loan or a US Offered Rate Loan, and (iii) with
respect to Multicurrency Facility Loans, a Multicurrency Rate Loan or a
Multicurrency Offered Rate Loan; provided, with respect to the definition of
Lending Office contained in this agreement, "Type of Loan" shall also be a
reference to (a) with respect to the US Facility, Loans denominated in Dollars,
and (b) with respect to the Multicurrency Facility, Loans denominated in a
Multicurrency.
"UCC" means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect in any applicable jurisdiction.
"Unadjusted Eurodollar Rate Component" means that component of the
interest costs to Company in respect of a Eurodollar Rate Loan that is based
upon the rate obtained pursuant to clause (i) of the definition of Eurodollar
Rate.
"Unit" means (i) with respect to Dollars, $1.00, (ii) with respect to
British Pounds Sterling, L.1.00, (iii) with respect to French Francs, FFr5.00,
(iv) with respect to German Marks, DM1.00, (v) with respect to Italian Lira,
Lira1500, (vi) with respect to Swiss Fancs, SWFr1.00, (vii) with respect to
Japanese Yen, Y.100.00, and (viii) with respect to any other Multicurrency, an
amount of such currency the Dollar Equivalent of which is $1.00.
"US Facility" means the facility described in Section 2.2(a), 2.2(b)
providing for Loans to Company by US Facility Lenders in the aggregate principal
amount of such Lenders' US Facility Commitments.
"US Facility Agent" as defined in the preamble hereto.
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"US Facility Commitment" means the commitment of a Lender to make or
otherwise fund any Credit Extension (other than any Term Loan, Multicurrency
Facility Loan or Multicurrency Letter of Credit). The amount of each Lender's
US Facility Commitment, if any, as of the Closing Date is set forth on Appendix
B and shall be subject to any adjustment or reduction pursuant to the terms and
conditions hereof.
"US Facility Commitment Period" means the period from and including the
Closing Date to but excluding the US Facility Commitment Termination Date.
"US Facility Commitment Termination Date" means the earliest to occur of
(i) December 31, 1998 if the Term Loans are not made on or before that date;
(ii) the sixth anniversary of the Closing Date, (iii) the date the US Facility
Commitments are permanently reduced to zero pursuant to Section 2.12(b) or 2.13,
and (iv) the date of the termination of the US Facility Commitments pursuant to
Section 8.1.
"US Facility Exposure" means, with respect to any Lender as of any date of
determination:
(i) prior to the termination of the US Facility Commitments, such
Lender's US Facility Commitment; and
(ii) after the termination of the US Facility Commitments, the sum
of (a) the aggregate outstanding principal amount of the US Facility
Loans of such Lender, (b) in the case of US Issuing Bank, the aggregate
US Letter of Credit Usage in respect of all US Letters of Credit (net of
any participations purchased by Lenders therein or any unreimbursed
drawing thereunder), (c) the aggregate amount of all participations
purchased by such Lender in any outstanding US Letters of Credit or any
unreimbursed drawing under any US Letter of Credit, (d) in the case of US
Swing Line Lender, the aggregate outstanding principal amount of all US
Swing Line Loans (net of any participation therein purchased by other
Lenders), and (e) the aggregate amount of all participations purchased by
such Lender in any outstanding US Swing Line Loans.
"US Facility Lender" means a Lender having US Facility Exposure.
"US Facility Loan" means a loan made by a Lender to Company pursuant to
Section 2.2(a); provided, such term shall also include a US Swing Line Loan
unless the context otherwise requires.
"US Facility Note" means a promissory note in the form of Exhibit B-4, as
it may be amended, supplemented or otherwise modified from time to time.
"US Issuing Bank" means Bank of America as US Issuing Bank hereunder,
together with its permitted successors and assigns in such capacity.
"US Letter of Credit" means either a commercial letter of credit or a
standby letter of credit issued or to be issued by US Issuing Bank.
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"US Letter of Credit Sublimit" means the lesser of (i) $15,000,000 and
(ii) the aggregate unused amount of the US Facility Commitments then in effect.
"US Letter of Credit Usage" means, as at any date of determination, the
sum of (i) the maximum aggregate amount which is, or at any time thereafter may
become, available for drawing under all US Letters of Credit then outstanding,
plus (ii) the aggregate amount of all drawings under US Letters of Credit
honored by US Issuing Bank and not theretofore reimbursed by or on behalf of
Company.
"US Offered Rate" means, for any day, the rate of interest, plus a margin,
if any, offered in writing by US Swing Line Lender and accepted by Company.
"US Offered Rate Loan" means a Loan bearing interest at the US Offered
Rate.
"US Reimbursement Date" as defined in Section 2.3(a)(iii).
"US Swing Line Lender" means Bank of America, in its capacity as US Swing
Line Lender hereunder, together with its permitted successors and assigns in
such capacity.
"US Swing Line Loan" means a loan made by US Swing Line Lender to Company
pursuant to Section 2.2(b).
"US Swing Line Note" means a promissory note in the form of Exhibit B-5,
as it may be amended, supplemented or otherwise modified from time to time.
"US Swing Line Sublimit" means the lesser of (i) $25,000,000, and (ii) the
aggregate unused amount of US Facility Commitments then in effect.
"Waiver and Consent Agreement'' means a Waiver and Consent Agreement in
the form of Exhibit K, as it may be amended, supplemented or otherwise modified
from time to time.
"Wholly-Owned Subsidiary" means a Subsidiary of Company, at least 99% of
the capital stock of which (other than directors' qualifying shares) is owned by
Company or another Wholly-Owned Subsidiary.
"Wholly-Owned Domestic Subsidiary" means a Domestic Subsidiary of Company
that is a Wholly-Owned Subsidiary.
"Wholly-Owned Foreign Subsidiary" means a Foreign Subsidiary of Company
that is a Wholly-Owned Subsidiary.
"Year 2000 Issues" means limitations in the capacity or readiness to
handle date information for the Year 1999 or years beginning January 1, 2000 of
any of the Systems.
1.2. Accounting Terms. Except as otherwise expressly provided herein, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Company to Lenders pursuant to Section 5.1(a) and
5.1(b) shall be prepared in accordance with GAAP as in
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effect at the time of such preparation (and delivered together with the
reconciliation statements provided for in Section 5.1(d), if applicable).
Subject to the foregoing, calculations in connection with the definitions,
covenants and other provisions hereof shall utilize accounting principles and
policies in conformity with those used to prepare the Historical Financial
Statements of Company and its Subsidiaries; provided, Company shall record the
cost of producing instruments and other equipment loaned to customers of Company
or any of its Subsidiaries as Consolidated Capital Expenditures.
1.3. Interpretation, etc. The headings, subheadings and table of
contents used herein or in any other Credit Document are solely for convenience
of reference and shall not constitute a part of any such document or affect the
meaning, construction or effect of any provision thereof.
(a) Except as otherwise expressly provided, references herein to articles,
sections, paragraphs, clauses, annexes, appendices, exhibits and schedules are
references to articles, sections, paragraphs, clauses, annexes, appendices,
exhibits and schedules in or to this Agreement.
(b) All definitions set forth herein or in any other Credit Document shall
apply to the singular as well as the plural form of such defined term, and all
references to the masculine gender shall include reference to the feminine or
neuter gender, and vice versa, as the context may require.
(c) When used herein or in any other Credit Document, words such as
"hereunder", "hereto", "hereof" and "herein" and other words of like import
shall, unless the context clearly indicates to the contrary, refer to the whole
of the applicable document and not to any particular article, section,
subsection, paragraph or clause thereof.
(d) References to "including" means including without limiting the
generality of any description preceding such term.
(e) Any reference to an officer of Company or any other Person by
reference to the title of such officer shall be deemed to refer to each other
officer of such Person, however titled, exercising the same or substantially
similar functions.
(f) All references to any agreement or document as amended, modified or
supplemented, or words of similar effect, shall mean such document or agreement,
as the case may be, as amended, modified or supplemented from time to time only
as and to the extent permitted therein and in the Credit Documents.
SECTION 2. LOANS AND LETTERS OF CREDIT
2.1. Term Loans. (a) Subject to the terms and conditions hereof, on or
before December 31, 1998:
(i) each Lender holding a Tranche A Term Loan Amount agrees to make
a Tranche A Term Loan to Company in an amount equal to such Lender's
Tranche A Term Loan Amount;
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(ii) each Lender holding a Tranche B Term Loan Amount agrees to make
a Tranche B Term Loan to Company in an amount equal to such Lender's
Tranche B Term Loan Amount; and
(iii) each Lender holding a Tranche C Term Loan Amount agrees to
make a Tranche C Term Loan to Company in an amount equal to such Lender's
Tranche C Term Loan Amount.
Any amount borrowed under this Section 2.1(a) and subsequently repaid or
prepaid may not be reborrowed. Subject to Sections 2.12(a) and 2.13, all
amounts owed hereunder with respect to the Tranche A Term Loans, Tranche B Term
Loans and Tranche C Term Loans shall be paid in full no later than the Tranche A
Term Loan Maturity Date, Tranche B Term Loan Maturity Date and Tranche C Term
Loan Maturity Date, as applicable.
(a) Company shall deliver to US Facility Agent the fully executed and
delivered Closing Date Certificate (which shall be deemed to be a Funding Notice
with respect to the Term Loans for all purposes hereof). Promptly upon receipt
by US Facility Agent of such Certificate, US Facility Agent shall notify each
Lender of the proposed borrowing.
(b) Each Lender shall make its Tranche A Term Amount, Tranche B Term Loan
Amount and Tranche C Term Loan Amount, as the case may be, available to US
Facility Agent at US Facility Agent's Principal Office not later than 12:00
noon (New York City time) on the Closing Date, by wire transfer of Same Day
Funds in Dollars to US Facility Agent's Principal Office. Except as provided
herein, upon satisfaction or waiver of the conditions precedent specified
herein, US Facility Agent shall make the proceeds of such Term Loans available
to Company on the Closing Date by causing an amount of Same Day Funds in Dollars
equal to the proceeds of all such Loans received by US Facility Agent from
Lenders to be credited to the account of Company at such Principal Office.
(c) Each Lender shall make its Tranche A Term Amount, Tranche B Term Loan
Amount and Tranche C Term Loan Amount, as the case may be, available to US
facility Agent at US Facility Agent's Principal Office not later than 12:00 noon
(New York City time) on the Closing date, by wire transfer of Same Day Funds in
Dollars to US Facility Agent's Principal Office. Except as provided herein, upon
satisfaction or waiver of the conditions precedent specified herein, US Facility
Agent shall make the proceeds of such Term Loans available to Company on he
Closing Date by causing an amount of Same Day Funds in Dollars equal to the
proceeds of all such Loans received by US Facility Agent from Lenders to be
credited to the account of Company at such Principal Office.
2.2. Facility Loans.
(a) US Facility Loans.
(i) During the US Facility Commitment Period, subject to the terms
and conditions hereof, each Lender holding a US Facility Commitment
agrees to make US Facility Loans to Company in the aggregate amount up to
but not exceeding such Lender's US Facility Commitment; provided, after
giving effect to the making of any US Facility Loan, in no event shall
the Total Utilization of US Facility Commitments exceed the US Facility
Commitments then in effect. Amounts borrowed pursuant to this Section
2.2(a) may be repaid and reborrowed during the US Facility Commitment
Period. Each Lender's US Facility Commitment shall expire on the US
Facility Commitment Termination Date and all US Facility Loans and all
other amounts owed hereunder with respect to the US Facility Loans and
the US Facility Commitments shall be paid in full no later than such
date.
(ii) Except pursuant to Section 2.3(a)(iii), US Facility Loans that
are Base Rate Loans shall be made in an aggregate minimum amount of
$5,000,000 and integral multiples of $1,000,000 in excess of that amount,
and US Facility Loans that are
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Eurodollar Rate Loans shall be in an aggregate minimum amount of
$5,000,000 and integral multiples of $1,000,000 in excess of that amount.
(iii) Whenever Company desires that Lenders make US Facility Loans,
Company shall deliver to US Facility Agent a fully executed and delivered
Funding Notice no later than 11:00 a.m. (New York City time) (1) at least
three Business Days in advance of the proposed Credit Date in the case of
a Eurodollar Rate Loan; and (2) at least one Business Day in advance of
the proposed Credit Date in the case of a Base Rate Loan. Except as
otherwise provided herein, a Funding Notice for a US Facility Loan that
is a Eurodollar Rate Loan shall be irrevocable on and after the related
Interest Rate Determination Date, and Company shall be bound to make a
borrowing in accordance therewith.
(iv) Notice of receipt of each Funding Notice in respect of US
Facility Loans, together with the amount of each US Facility Lender's Pro
Rata Share thereof, together with the applicable interest rate, shall be
provided by US Facility Agent to each US Facility Lender by telefacsimile
with reasonable promptness, but (provided US Facility Agent shall have
received such notice by 11:00 a.m. (New York City time), not later than
2:00 p.m. (New York City time) on the same day as US Facility Agent's
receipt of such Notice from Company.
(v) Each US Facility Lender shall, pursuant to the terms and
subject to the conditions of this Agreement, not later than 12:00 noon
(New York City time) on the applicable Credit Date, make its Pro Rata
Share of the US Facility Loan to be made on such day available to Company
by depositing or transferring the proceeds thereof in Dollars and in Same
Day Funds to US Facility Agent at its Principal Office. The amount so
received by US Facility Agent shall, subject to the terms of this
Agreement, be made available to Company by deposit of the proceeds to an
account thereof maintained at such Principal Office or as otherwise
directed by Company in the applicable Funding Notice.
(b) US Swing Line Loans.
(i) During the US Facility Commitment Period, subject to the terms
and conditions hereof, US Swing Line Lender hereby agrees to make US
Swing Line Loans to Company in the aggregate amount up to but not
exceeding the US Swing Line Sublimit; provided, after giving effect to
the making of any US Swing Line Loans, in no event shall the Total
Utilization of US Facility Commitments exceed the US Facility Commitments
then in effect. Amounts borrowed pursuant to this Section 2.2(b) may be
repaid and reborrowed during the US Facility Commitment Period. US Swing
Line Lender's Facility Commitment shall expire on the US Facility
Commitment Termination Date and all US Swing Line Loans and all other
amounts owed hereunder with respect thereto and the US Facility
Commitments shall be paid in full no later than such date.
(ii) US Swing Line Loans shall be made in an aggregate minimum
amount of $500,000 and integral multiples of $100,000 in excess of that
amount, or in such other amounts as may be agreed to by Company and US
Swing Line Lender.
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(iii) Whenever Company desires that US Swing Line Lender make a US
Swing Line Loan, Company shall deliver to US Swing Line Lender a Funding
Notice no later than 12:00 noon (New York City time) (or at such other
time as may be agreed to by Company and US Swing Line Lender) on the
proposed Credit Date and US Swing Line Lender shall make the amount of
its US Swing Line Loan available to Company not later than 2:00 p.m.(New
York City time) (or at such other time as may be agreed to by Company and
US Swing Line Lender) on the applicable Credit Date by deposit of the
proceeds to an account thereof maintained at such Principal Office or as
otherwise directed by Company in the applicable Funding Notice.
(iv) US Swing Line Lender may, by delivery to US Facility Agent of a
written notice no later than 11:00 a.m. (New York City time) on a
Business Day, require each Lender holding a US Facility Commitment to
irrevocably purchase, and each such Lender shall be deemed to have
irrevocably purchased, a participation in such outstanding US Swing Line
Loans in an amount equal to its Pro Rata Share of the unpaid amount of
such US Swing Line Loans, together with accrued interest thereon.
Promptly after receipt by US Facility Agent of such written notice, US
Facility Agent shall notify each US Facility Lender thereof, and within
one Business Day, each applicable Lender shall deliver to US Facility
Agent an amount equal to its respective participation in Same Day Funds
at US Facility Agent's Principal Office. US Facility Agent shall
promptly make the proceeds of such participations available to US Swing
Line Lender by causing an amount of Same Day Funds in Dollars equal to
such proceeds to be credited to the account of US Swing Line Lender at
such Principal Office. In order to evidence further any such
participation (and without prejudice to the effectiveness of the
applicable participation provisions set forth in this Section
2.2(b)(iv)), each applicable Lender agrees to enter into a separate
participation agreement at the request of US Swing Line Lender in form
and substance reasonably satisfactory to each such party. In the event
any applicable Lender fails to make available to US Swing Line Lender the
amount of such Lender's participation as provided herein, US Swing Line
Lender shall be entitled to recover such amount on demand from such
Lender together with interest thereon at the rate customarily used by US
Swing Line Lender for the correction of errors among banks for three
Business Days and thereafter at the Base Rate. In the event US Swing
Line Lender receives a payment of any amount in which the other
applicable Lenders have purchased participations as provided herein, US
Swing Line Lender shall promptly distribute to each such other Lender its
Pro Rata Share of such payment. A certificate of US Swing Line Lender
submitted to any Lender with respect to amounts owing hereunder shall be
conclusive in the absence of manifest error.
(c) Multicurrency Facility Loans.
(i) On the Closing Date and/or any date prior to the fifth Business
Day after the Closing Date, subject to the terms and conditions hereof,
each Lender holding a Multicurrency Facility Commitment agrees to make
Multicurrency Facility Loans to Company denominated in Yen, ECUs or
Dollars, as requested by Company in the applicable Notice; provided,
after giving effect to the making of any Multicurrency Facility Loans in
no event shall the Total Utilization of Multicurrency Facility
Commitments exceed the Multicurrency Facility Commitments then in effect.
Amounts
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borrowed pursuant to this Section 2.2(c)(i) may be repaid but not
reborrowed. Each Lender's Multicurrency Facility Commitment shall expire
on the Multicurrency Facility Commitment Termination Date and all
Multicurrency Facility Loans and all other amounts owed hereunder with
respect thereto and the Multicurrency Facility Commitments shall be paid
in full no later than such date.
(ii) Company shall deliver to Multicurrency Facility Agent the fully
executed and delivered Closing Date Certificate (which shall be deemed to
be a Funding Notice with respect to the Multicurrency Facility Loans made
pursuant to Section 2.2(c)(i) for all purposes hereof). Promptly upon
receipt by Multicurrency Facility Agent of such Certificate,
Multicurrency Facility Agent shall notify each Lender of the proposed
borrowing.
(iii) In the case of Multicurrency Facility Loans, each
Multicurrency Facility Lender shall, pursuant to the terms and subject to
the conditions of this Agreement, not later than 12:00 noon (New York
City time) on the Closing Credit Date (or the applicable day thereafter
pursuant to Section 2.2(c)(i)), make its Pro Rata Share of such
Multicurrency Facility Loan on such day available to Company by
depositing or transferring the proceeds thereof in the applicable
Multicurrency and in Same Day Funds to the account of Multicurrency
Facility Agent at the applicable Funding Bank. The amount so received by
such Funding Bank shall, subject to the terms of this Agreement and upon
instruction from Multicurrency Facility Agent thereto on the same day but
no later than 2:00 p.m. (New York City time), be made available to
Company by deposit thereof to an account of Company, or as otherwise as
directed by Company in the applicable Funding Notice.
(d) Multicurrency Swing Line Loans.
(i) During the Multicurrency Facility Commitment Period, subject to
the terms and conditions hereof, each Multicurrency Swing Line Lender
hereby agrees to make Multicurrency Swing Line Loans to Company and/or
each Multicurrency Swing Line Subsidiary as may be designated by Company
in the aggregate amount for all Multicurrency Swing Line Lenders up to
but not exceeding the Multicurrency Swing Line Sublimit; provided, after
giving effect to the making of any Multicurrency Swing Line Loans, in no
event shall the Total Utilization of Multicurrency Facility Commitments
exceed the Multicurrency Facility Commitments then in effect. Amounts
borrowed pursuant to this Section 2.2(d) may be repaid and reborrowed
during the Multicurrency Facility Commitment Period. Each Multicurrency
Swing Line Lender's Multicurrency Facility Commitment shall expire on the
Multicurrency Facility Commitment Termination Date and all Multicurrency
Swing Line Loans and all other amounts owed hereunder with respect
thereto and the Multicurrency Facility Commitments shall be paid in full
no later than such date.
(ii) Multicurrency Swing Line Loans shall be made in an aggregate
minimum amount of 500,000 Units of the applicable Multicurrency and
integral multiples of 100,000 Units of such Multicurrency in excess of
that amount, or in such other amounts
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as may be agreed to by Company and/or the applicable Multicurrency Swing
Line Subsidiary and the applicable Multicurrency Swing Line Lender.
(iii) Whenever Company or Multicurrency Swing Line Subsidiary
desires that a Multicurrency Swing Line Lender make a Multicurrency Swing
Line Loan, Company shall deliver to such Multicurrency Swing Line Lender
and to Multicurrency Facility Agent a Funding Notice no later than 12:00
noon (London, England time) (or at such other time as agreed to by
Company and/or the applicable Multicurrency Swing Line Subsidiary and the
applicable Multicurrency Swing Line Lender) at each of the applicable
Multicurrency Swing Line Lender's and Multicurrency Facility Agent's
Principal Offices or at such other office as may be agreed to by Company
and/or the applicable Multicurrency Swing Line Subsidiary and the
applicable Multicurrency Swing Line Lender on the proposed Credit Date.
(iv) Each Multicurrency Swing Line Lender shall make the amount of
its Multicurrency Swing Line Loan available to Company and/or the
applicable Multicurrency Swing Line Subsidiary not later than 2:00 p.m.
(London, England time) (or at such other time as agreed to by Company
and/or the applicable Multicurrency Swing Line Subsidiary and the
applicable Multicurrency Swing Line Lender) at such Swing Line Lender's
Principal Office or at such other office as may be agreed to by Company
and/or the applicable Multicurrency Swing Line Subsidiary and the
applicable Multicurrency Swing Line Lender on the applicable Credit Date
by wire transfer of Same Day Funds in the applicable Multicurrency or as
otherwise directed by Company or such Multicurrency Swing Line Subsidiary
in the applicable Funding Notice.
(v) Each Multicurrency Swing Line Lender may, by delivery to
Multicurrency Facility Agent of a written notice no later than 11:00 a.m.
(New York City time) on a Business Day, require each Lender holding a
Multicurrency Facility Commitment to irrevocably purchase, and each such
Lender shall be deemed to have irrevocably purchased, a participation in
such outstanding Multicurrency Swing Line Loans in an amount equal to its
Pro Rata Share of the unpaid amount of such Multicurrency Swing Line
Loans (based on the aggregate Dollar Equivalent thereof as determined
pursuant to this Section 2.2(c)(v)), together with accrued interest
thereon. Each such notice shall state the aggregate amount of
Multicurrency Swing Line Loans outstanding as of the date of such notice
and an itemization of the amount of each Multicurrency in which such
Multicurrency Swing Line Loans are denominated, together with the Dollar
Equivalent thereof. Promptly after receipt by Multicurrency Facility
Agent of such notice, Multicurrency Facility Agent shall notify each
Multicurrency Facility Lender thereof, and within five (5) Business Days,
each Multicurrency Facility Lender shall deliver to Multicurrency
Facility Agent an amount equal to its respective participation in Same
Day Funds in the applicable Multicurrency at Multicurrency Facility
Agent's Principal Office; provided, if Multicurrency Facility Agent
shall have received, on or prior to the fourth day after the date of
receipt of the written notice of Multicurrency Swing Line Lender referred
to herein, a notice from any Multicurrency Lender that such Multicurrency
Lender intends to fund, at its election as determined in its discretion,
its participation in such Multicurrency Swing Line Loans in Dollars, then
Multicurrency Facility Agent shall promptly notify each other
Multicurrency Lender of such election and all
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Multicurrency Facility Lenders shall fund their respective participations
in Dollars; provided further, in such event from and after such date the
applicable Multicurrency Swing Line Loans to which such participations
relate shall automatically be converted (at the Spot Rate of Exchange for
the Dollar Equivalent of the applicable Multicurrency determined as of the
date of such conversion) to, and thereafter for all purposes hereof be
treated as, Multicurrency Swing Line Loans denominated in Dollars. Upon
receipt thereof, Multicurrency Facility Agent shall promptly make the
proceeds of such participations available to the applicable Multicurrency
Swing Line Lender by causing an amount of Same Day Funds in the applicable
Multicurrency equal to such proceeds to be credited to the account of
Multicurrency Swing Line Lender at its Principal Office or at such other
office as such Multicurrency Swing Line Lender shall designate to
Multicurrency Facility Agent. In order to evidence further any such
participation (and without prejudice to the effectiveness of the
applicable participation provisions set forth in this Section 2.2(d)(v)),
each applicable Lender agrees to enter into a separate participation
agreement at the request of such Multicurrency Swing Line Lender in form
and substance reasonably satisfactory to each such party. In the event
any applicable Lender fails to make available to the applicable
Multicurrency Swing Line Lender the amount of such Lender's participation
as provided herein, such Multicurrency Swing Line Lender shall be entitled
to recover such amount on demand from such Lender together with interest
thereon at the rate customarily used by Multicurrency Swing Line Lender
for the correction of errors among banks for three Business Days and
thereafter at the rate applicable to Multicurrency Loans pursuant to
Section 2.9. In the event the applicable Multicurrency Swing Line Lender
receives a payment of any amount in which the other applicable Lenders
have purchased participations as provided herein, such Multicurrency Swing
Line Lender shall promptly distribute to each such other Lender its Pro
Rata Share of such payment. A certificate of the applicable Multicurrency
Swing Line Lender submitted to any Lender with respect to amounts owing
hereunder shall be conclusive in the absence of manifest error.
(e) Swing Line Loans - Generally. Anything contained herein to the
contrary notwithstanding, each applicable Facility Lender's obligation to
purchase a participation in any Swing Line Loan shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any
set-off, counterclaim, recoupment, defense or other right which such Lender may
have against any Swing Line Lender, any Credit Party or any other Person for any
reason whatsoever; (ii) the occurrence or continuation of an Event of Default or
a Default; (iii) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or any of its
Subsidiaries; (iv) any breach hereof or any other Credit Document by any party
thereto; or (v) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing. In no event shall the participation of
any Lender in any Swing Line Loan purchased pursuant to Section 2.2(b)(iv) or
2.2(d)(v) be construed as a loan or other extension of credit by such Lender to
Company, any other Lender or any Agent, or shall this Agreement be construed to
require any Lender to fund or pay any amount in respect of any such
participation in any Loan except as set forth herein.
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2.3. Letters of Credit.
(a) US Letters of Credit.
(i) During the US Facility Commitment Period, subject to the terms
and conditions hereof, US Issuing Bank agrees to issue US Letters of
Credit in Dollars for the account of Company in the aggregate amount up
to but not exceeding the US Letter of Credit Sublimit; provided, Company
shall not request that US Issuing Bank issue, and US Issuing Bank shall
not issue: (1) any US Letter of Credit if, after giving effect to such
issuance, the Total Utilization of US Facility Commitments would exceed
the US Facility Commitments then in effect; (2) any US Letter of Credit
if, after giving effect to such issuance, the US Letter of Credit Usage
would exceed the US Letter of Credit Sublimit then in effect; or (3) any
standby letter of credit having an expiration date later than the earlier
of (I) the US Facility Commitment Termination Date and (II) the date
which is one year from the date of issuance of such standby letter of
credit. Subject to the foregoing, US Issuing Bank may agree that a
standby letter of credit will automatically be extended for one or more
successive periods not to exceed one year each unless US Issuing Bank
elects not to extend for any such additional period; provided, US Issuing
Bank shall not extend any such letter of credit if it has received
written notice that an Event of Default has occurred and is continuing at
the time US Issuing Bank must elect to allow such extension.
(ii) Whenever Company desires the issuance of a US Letter of Credit,
it shall deliver to Global Agent an Issuance Notice no later than 12:00
noon (New York City time) at least three Business Days or such shorter
period as may be agreed to by US Issuing Bank in any particular instance,
in advance of the proposed date of issuance. Upon satisfaction or waiver
of the conditions set forth in Section 3.2, US Issuing Bank shall issue
the requested US Letter of Credit in accordance with US Issuing Bank's
standard operating procedures. Upon the issuance of any US Letter of
Credit, US Issuing Bank shall promptly notify US Facility Agent of such
issuance and US Facility Agent shall in turn deliver written notice
thereof to each US Facility Lender, which notice shall be accompanied by
a copy of such Letter of Credit and the amount of such Lender's
respective participation in such Letter of Credit pursuant to Section
2.3(a)(iv). Within fifteen (15) days after the end of each month ending
after the Closing Date, so long as any US Letter of Credit shall have
been outstanding during such month, US Issuing Bank shall deliver to
Global Agent, and Global Agent shall in turn deliver to each applicable
Lender a report setting forth for such month the daily aggregate amount
available to be drawn under the US Letters of Credit that were
outstanding during such month.
(iii) In the event US Issuing Bank has determined to honor a drawing
under a US Letter of Credit, it shall immediately notify Company and
Global Agent, and Company shall reimburse US Issuing Bank on or before
the Business Day immediately following the date on which such drawing is
honored (the "US Reimbursement Date") in an amount in Dollars and in Same
Day Funds equal to the amount of such honored drawing. Anything
contained herein to the contrary notwithstanding, (1) unless Company
shall have notified Global Agent and US Issuing Bank prior to 11:00 a.m.
(New York City time) on the date such drawing is honored that Company
intends to
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reimburse US Issuing Bank for the amount of such honored drawing with
funds other than the proceeds of US Facility Loans, Company shall be
deemed to have given a timely Funding Notice to Global Agent requesting
the applicable Lenders to make US Facility Loans that are Base Rate Loans
on the US Reimbursement Date in an amount in Dollars equal to the amount
of such honored drawing, and (2) subject to satisfaction or waiver of the
conditions specified in Section 3.2, such Lenders shall on the US
Reimbursement Date make US Facility Loans that are Base Rate Loans in the
amount of such honored drawing, the proceeds of which shall be applied
directly by Global Agent to reimburse US Issuing Bank for the amount of
such honored drawing; and provided further, if for any reason proceeds of
US Facility Loans are not received by US Issuing Bank on the US
Reimbursement Date in an amount equal to the amount of such honored
drawing, Company shall reimburse US Issuing Bank, on demand, in an amount
in Same Day Funds equal to the excess of the amount of such honored
drawing over the aggregate amount of such US Facility Loans, if any, which
are so received. Nothing in this Section 2.3(a)(iii) shall be deemed to
relieve any applicable Lender from its obligation to make US Facility
Loans on the terms and conditions set forth herein, and Company shall
retain any and all rights it may have against any such Lender resulting
from the failure of such Lender to make such US Facility Loan under this
Section 2.3(a)(iii).
(iv) Immediately upon the issuance of each US Letter of Credit, each
Lender holding a US Facility Commitment shall be deemed to have
irrevocably purchased, and hereby agrees to irrevocably purchase, from US
Issuing Bank a participation in such US Letter of Credit and any drawings
honored thereunder in an amount equal to such Lender's Pro Rata Share of
the maximum amount which is or at any time may become available to be
drawn thereunder. In the event that Company shall fail for any reason to
reimburse US Issuing Bank as provided in Section 2.3(a)(iii), US Issuing
Bank shall promptly notify each applicable US Facility Lender of the
unreimbursed amount of such honored drawing and of such Lender's
respective participation therein. Each applicable Lender shall make
available to US Issuing Bank an amount equal to its respective
participation in Dollars and in Same Day Funds at US Issuing Bank's
Principal Office not later than 12:00 noon (New York City time) on the
first Business Day after the date notified by US Issuing Bank. In the
event that any applicable Lender fails to make available to US Issuing
Bank on such Business Day the amount of such Lender's participation in
such US Letter of Credit as provided in this Section 2.3(a)(iv), US
Issuing Bank shall be entitled to recover such amount on demand from such
Lender together with interest thereon at the rate customarily used by US
Issuing Bank for the correction of errors among banks for three Business
Days and thereafter at the Base Rate. Nothing in this Section 2.3(a)(iv)
shall be deemed to prejudice the right of any applicable Lender to recover
from US Issuing Bank any amounts made available by such Lender to US
Issuing Bank pursuant to this Section in the event that it is determined
by the final judgment of a court of competent jurisdiction that the
payment with respect to a US Letter of Credit in respect of which payment
was made by such Lender constituted gross negligence or willful misconduct
on the part of US Issuing Bank. In the event US Issuing Bank shall have
been reimbursed by other applicable US Facility Lenders pursuant to this
Section 2.3(a)(iv) for all or any portion of any drawing honored by US
Issuing Bank under a US Letter of Credit, US Issuing Bank shall distribute
to US Facility Agent, and US Facility Agent shall in turn distribute to
each applicable US Facility Lender which has paid all
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amounts payable by it under this Section 2.3(a)(iv) with respect to such
honored drawing such Lender's Pro Rata Share of all payments subsequently
received by US Issuing Bank from Company in reimbursement of such honored
drawing when such payments are received. Any such distribution shall be
made to an applicable Lender at its Lending Office or at such other
address as such Lender may request.
(b) Multicurrency Letters of Credit.
(i) During the Multicurrency Facility Commitment Period, subject to
the terms and conditions hereof, each Multicurrency Issuing Bank agrees
to issue Multicurrency Letters of Credit in a Multicurrency for the
account of Company in the Dollar Equivalent of an aggregate amount for
all Multicurrency Letters of Credit issued by all Multicurrency Issuing
Banks up to but not exceeding the Multicurrency Letter of Credit
Sublimit; provided, Company shall not request that any Multicurrency
Issuing Bank issue, and no Multicurrency Issuing Bank shall issue: (1)
any Multicurrency Letter of Credit if, after giving effect to such
issuance, the Total Utilization of Multicurrency Facility Commitments
would exceed the Multicurrency Facility Commitments then in effect; (2)
any Multicurrency Letter of Credit if, after giving effect to such
issuance, the Multicurrency Letter of Credit Usage would exceed the
Multicurrency Letter of Credit Sublimit then in effect; or (3) any
standby letter of credit having an expiration date later than the earlier
of (I) the Multicurrency Facility Commitment Termination Date and (II)
the date which is one year from the date of issuance of such standby
letter of credit. Subject to the foregoing, a Multicurrency Issuing
Bank may agree that a standby letter of credit will automatically be
extended for one or more successive periods not to exceed one year each
unless such Multicurrency Issuing Bank elects not to extend for any such
additional period; provided, no Multicurrency Issuing Bank shall extend
any such letter of credit if it has knowledge that an Event of Default
has occurred and is continuing at the time such Multicurrency Issuing
Bank must elect to allow such extension.
(ii) Whenever Company desires the issuance of a Multicurrency Letter
of Credit, it shall deliver to the applicable Multicurrency Issuing Bank
and to Global Agent an Issuance Notice no later than 12:00 noon (London,
England time) at least four Business Days or such shorter period as may
be agreed to by such Multicurrency Issuing Bank in any particular
instance, in advance of the proposed date of issuance. Upon satisfaction
or waiver of the conditions set forth in Section 3.2, the applicable
Multicurrency Issuing Bank shall issue the requested Multicurrency Letter
of Credit in accordance with such Multicurrency Issuing Bank's standard
operating procedures. Upon the issuance of any Multicurrency Letter of
Credit, the applicable Multicurrency Issuing Bank shall notify Global
Agent and Global Agent shall promptly notify each Multicurrency Facility
Lender of such issuance, which notice shall be accompanied by a copy of
such Letter of Credit and the amount of such Lender's respective
participation in such Letter of Credit pursuant to Section 2.3(b)(iv).
Within fifteen (15) days after the end of each month ending after the
Closing Date, so long as any Multicurrency Letter of Credit shall have
been outstanding during such month, each Multicurrency Issuing Bank shall
deliver to Global Agent and Global Agent shall deliver to each applicable
Lender a report setting forth for such month the daily aggregate amount
available to be drawn under the Multicurrency Letters of Credit that were
outstanding during such month.
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(iii) In the event any Multicurrency Issuing Bank has determined to
honor a drawing under a Multicurrency Letter of Credit, it shall
immediately notify Company, Multicurrency Facility Agent and Global
Agent, and Company shall reimburse the applicable Multicurrency Issuing
Bank on or before the Business Day immediately following the date on
which such drawing is honored (the "Multicurrency Reimbursement Date") in
an amount in the applicable Multicurrency and in Same Day Funds equal to
the amount of such honored drawing. Anything contained herein to the
contrary notwithstanding, (1) unless Company shall have notified Global
Agent, Multicurrency Facility Agent and Multicurrency Issuing Bank prior
to 11:00 a.m. (London, England City time) on the date such drawing is
honored that Company intends to reimburse the applicable Multicurrency
Issuing Bank for the amount of such honored drawing with funds other than
the proceeds of Multicurrency Facility Loans, Company shall be deemed to
have given a timely Funding Notice to Global Agent requesting the
applicable Lenders to make Multicurrency Facility Loans at the
Multicurrency Rate on the Multicurrency Reimbursement Date in an amount
in Dollars equal to the amount of such honored drawing, and (2) subject
to satisfaction or waiver of the conditions specified in Section 3.2,
such Lenders shall on the Multicurrency Reimbursement Date make
Multicurrency Facility Loans at the Multicurrency Rate in the amount of
such honored drawing, the proceeds of which shall be applied directly by
Global Agent to reimburse Multicurrency Issuing Bank for the amount of
such honored drawing; and provided further, if for any reason proceeds of
Multicurrency Facility Loans are not received by Multicurrency Issuing
Bank on the Multicurrency Reimbursement Date in an amount equal to the
amount of such honored drawing, Company shall reimburse Multicurrency
Issuing Bank, on demand, in an amount in Same Day Funds equal to the
excess of the amount of such honored drawing over the aggregate amount of
such Multicurrency Facility Loans, if any, which are so received.
Nothing in this Section 2.3(b)(iii) shall be deemed to relieve any
applicable Lender from its obligation to make Multicurrency Facility
Loans on the terms and conditions set forth herein, and Company shall
retain any and all rights it may have against any such Lender resulting
from the failure of such Lender to make such Multicurrency Facility Loan
under this Section 2.3(b)(iii).
(iv) Immediately upon the issuance of each Multicurrency Letter of
Credit, each Lender holding a Multicurrency Facility Commitment shall be
deemed to have irrevocably purchased, and hereby agrees to irrevocably
purchase, from the applicable Multicurrency Issuing Bank a participation
in such Multicurrency Letter of Credit and any drawings honored
thereunder in an amount equal to such Lender's Pro Rata Share of the
maximum amount which is or at any time may become available to be drawn
thereunder. In the event that Company shall fail for any reason to
reimburse a Multicurrency Issuing Bank as provided in Section
2.3(b)(iii), such Multicurrency Issuing Bank shall notify Multicurrency
Facility Agent and Multicurrency Facility Agent shall promptly notify
each applicable Lender of the unreimbursed amount of such honored drawing
and of such Lender's respective participation therein. Each such notice
shall state the aggregate amount of Multicurrency Letters of Credit
outstanding as of the date of such notice and an itemization of the
amount of each Multicurrency in which such Multicurrency Letter of Credit
are denominated, together with the Dollar Equivalent thereof. Promptly
after receipt by Multicurrency Facility Agent of such notice,
Multicurrency Facility Agent shall notify each Multicurrency Facility
Lender thereof, and
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within five (5) Business Days, each Multicurrency Facility Lender shall
deliver to Multicurrency Facility Agent an amount equal to its respective
participation in Same Day Funds in the applicable Multicurrency at
Multicurrency Facility Agent's Principal Office; provided, if
Multicurrency Facility Agent shall have received, on or prior to the
fourth day after the date of receipt of the written notice of
Multicurrency Issuing Bank referred to herein, a notice from any
Multicurrency Lender that such Multicurrency Lender intends to fund, at
its election as determined in its discretion, its participation in such
Multicurrency Letters of Credit in Dollars, then Multicurrency Facility
Agent shall promptly notify each other Multicurrency Lender of such
election and all Multicurrency Facility Lenders shall fund their
respective participations in Dollars; provided further, in such event from
and after such date the applicable Multicurrency Letters of Credit to
which such participations relate shall automatically be converted (at the
Spot Rate of Exchange for the Dollar Equivalent of the applicable
Multicurrency determined as of the date of such conversion) to, and
thereafter for all purposes hereof be treated as, Multicurrency Letters of
Credit the reimbursement obligations of Company with respect to which are
denominated in Dollars. Upon receipt of any such amount, Multicurrency
Facility Agent shall make available to the applicable Multicurrency
Issuing Bank an amount equal to the aggregate amount of all participations
purchased at Multicurrency Issuing Bank's Principal Office or such other
office specified by the applicable Multicurrency Issuing Bank not later
than 12:00 noon (London, England time) on the first Business Day after the
date notified by Multicurrency Facility Agent. In the event that any
applicable Lender fails to make available to the applicable Multicurrency
Issuing Bank on such Business Day the amount of such Lender's
participation in such Multicurrency Letter of Credit as provided in this
Section 2.3(b)(iv), such Multicurrency Issuing Bank shall be entitled to
recover such amount on demand from such Lender together with interest
thereon at the rate customarily used by Multicurrency Issuing Bank for the
correction of errors among banks for three Business Days and thereafter at
the rate applicable to Multicurrency Loans pursuant to Section 2.9.
Nothing in this Section 2.3(b)(iv) shall be deemed to prejudice the right
of any applicable Lender to recover from a Multicurrency Issuing Bank any
amounts made available by such Lender to such Multicurrency Issuing Bank
pursuant to this Section in the event that it is determined by the final
judgment of a court of competent jurisdiction that the payment with
respect to a Multicurrency Letter of Credit in respect of which payment
was made by such Lender constituted gross negligence or willful misconduct
on the part of such Multicurrency Issuing Bank. In the event the
applicable Multicurrency Issuing Bank shall have been reimbursed by other
applicable Lenders pursuant to this Section 2.3(b)(iv) for all or any
portion of any drawing honored by such Multicurrency Issuing Bank under a
Multicurrency Letter of Credit, such Multicurrency Issuing Bank shall
distribute to Multicurrency Facility Agent, and Multicurrency Facility
Agent shall in turn distribute to each applicable Lender which has paid
all amounts payable by it under this Section 2.3(b)(iv) with respect to
such honored drawing such Lender's Pro Rata Share of all payments
subsequently received by such Multicurrency Issuing Bank from Company in
reimbursement of such honored drawing when such payments are received.
Any such distribution shall be made to an applicable Lender at its Lending
Office or at such other address as such Lender may request.
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(c) Letters of Credit - Generally.
(i) In determining whether to honor any drawing under any Letter of
Credit by the beneficiary thereof, the applicable Issuing Bank shall be
responsible only to examine the documents delivered under such Letter of
Credit with reasonable care so as to ascertain whether they appear on
their face to be in accordance with the terms and conditions of such
Letter of Credit. As between Company and any Issuing Bank, Company
assumes all risks of the acts and omissions of, or misuse of the Letters
of Credit issued by such Issuing Bank by, the respective beneficiaries of
such Letters of Credit. In furtherance and not in limitation of the
foregoing, no Issuing Bank shall be responsible for: (1) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for
and issuance of any such Letter of Credit, even if it should in fact
prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (2) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any such
Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (3) failure of the beneficiary of any such
Letter of Credit to comply fully with any conditions required in order to
draw upon such Letter of Credit; (4) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise, whether or not they be in cipher; (5)
errors in interpretation of technical terms; (6) any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under any such Letter of Credit or of the proceeds thereof; (7)
the misapplication by the beneficiary of any such Letter of Credit of the
proceeds of any drawing under such Letter of Credit; or (8) any
consequences arising from causes beyond the control of such Issuing Bank,
including any Governmental Acts, and none of the above shall affect or
impair, or prevent the vesting of, any Issuing Bank's rights or powers
hereunder. Without limiting the foregoing and in furtherance thereof,
any action taken or omitted by any Issuing Bank under or in connection
with the Letters of Credit issued thereby or any documents and
certificates delivered thereunder, if taken or omitted in good faith,
shall not put such Issuing Bank under any resulting liability to Company.
Notwithstanding anything to the contrary contained in this Section
2.3(c)(i), Company shall retain any and all rights it may have against
any Issuing Bank for any liability arising solely out of the gross
negligence or willful misconduct of such Issuing Bank, as determined by a
final judgment of a court of competent jurisdiction.
(ii) The obligation of Company to reimburse any Issuing Bank for
drawings honored under the Letters of Credit issued thereby and to repay
any Facility Loans made by Lenders pursuant to Section 2.3(a)(iii) or
2.3(b)(iii) and the obligations of Lenders under Section 2.3(a)(iv) or
2.3(b)(iv) shall be unconditional and irrevocable and shall be paid
strictly in accordance with the terms hereof under all circumstances
including any of the following circumstances: (1) any lack of validity or
enforceability of any Letter of Credit; (2) the existence of any claim,
set-off, defense or other right which Company or any Lender may have at
any time against a beneficiary or any transferee of any Letter of Credit
(or any Persons for whom any such transferee may be acting), any Issuing
Bank, any Lender or any other Person or, in the case of a Lender, against
Company, whether in connection herewith, the transactions contemplated
herein or any unrelated transaction
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(including any underlying transaction between Company or one of its
Subsidiaries and the beneficiary for which any Letter of Credit was
procured); (3) any draft or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect; (4) payment by an Issuing Bank under any Letter of Credit issued
thereby against presentation of a draft or other document which does not
substantially comply with the terms of such Letter of Credit; (5) any
adverse change in the business, operations, properties, assets, condition
(financial or otherwise) or prospects of Company or any of its
Subsidiaries; (6) any breach hereof or any other Credit Document by any
party thereto; (7) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing; or (8) the fact that an Event of
Default or a Default shall have occurred and be continuing; provided, in
each case, that payment by any Issuing Bank under any Letter of Credit
issued thereby shall not have constituted gross negligence or willful
misconduct of such Issuing Bank under the circumstances in question (as
determined by a final judgment of a court of competent jurisdiction).
(iii) In addition to amounts payable as provided herein, Company
hereby agrees to protect, indemnify, pay and save harmless each Issuing
Bank from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable fees, expenses
and disbursements of counsel and allocated costs of internal counsel)
which such Issuing Bank may incur or be subject to as a consequence,
direct or indirect, of (1) the issuance of any Letter of Credit by such
Issuing Bank, other than as a result of (A) the gross negligence or
willful misconduct of such Issuing Bank as determined by a final judgment
of a court of competent jurisdiction, or (B) the wrongful dishonor by
such Issuing Bank of a proper demand for payment made under any Letter of
Credit issued thereby, or (2) the failure of such Issuing Bank to honor a
drawing under any such Letter of Credit as a result of any Governmental
Act.
(d) Collateral Account.
(i) Global Agent is hereby authorized to establish and maintain at
its Principal Office, as a blocked account in the name of Global Agent
and under the sole dominion and control thereof, a restricted deposit
account designated as "Stryker Corporation Collateral Account" (the
"Collateral Account"). All amounts at any time held in the Collateral
Account shall be beneficially owned by Company but shall be held in the
name of Global Agent hereunder, for the benefit of Lenders, as collateral
security for the Obligations upon the terms and conditions set forth
herein. Company shall have no right to withdraw, transfer or, except as
expressly set forth herein, otherwise receive any funds deposited into
the Collateral Account. Anything contained herein to the contrary
notwithstanding, the Collateral Account shall be subject to such
applicable laws, and such applicable regulations of the Board of
Governors of the Federal Reserve System and of any other appropriate
banking or governmental authority, as may now or hereafter be in effect.
All deposits of funds in the Collateral Account shall be made by wire
transfer (or, if applicable, by intra-bank transfer from another account
of Company) of immediately available funds, in each case addressed to
Global Agent. Company shall, promptly after initiating a transfer of
funds to the Collateral Account, give notice to Global Agent by
telefacsimile of the date, amount and method of delivery of such
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deposit. Any Cash held in the Collateral Account shall bear interest at
the standard rate paid by Bank of America to its customers for deposits of
like amounts and terms. Subject to Global Agent's rights hereunder, any
interest earned on deposits of Cash in the Collateral Account shall be
deposited directly in, and held in the Collateral Account.
(ii) Upon the occurrence of an Event of Default, Company shall pay
to Global Agent an amount (the "Applicable Aggregate Available Amount")
equal to the maximum amount that may at any time be drawn under all
Letters of Credit (in the case of Multicurrency Letters of Credit, an
amount equal to the Dollar Equivalent thereof) then outstanding by
delivering funds in such an amount for deposit in the Collateral Account.
If for any reason the aggregate amount delivered by Company for deposit
in the Collateral Account as aforesaid is less than the Applicable
Aggregate Available Amount, the aggregate amount so delivered by Company
shall be apportioned among all outstanding Letters of Credit for purposes
hereof in accordance with the ratio of the maximum amount available for
drawing under each such Letter of Credit (as to such Letter of Credit,
the "Applicable Maximum Available Amount") to the Applicable Aggregate
Available Amount. Upon any drawing under any outstanding Letter of
Credit in respect of which Company has deposited in the Collateral
Account any amounts described above, Global Agent shall apply such
amounts to reimburse the applicable Issuing Bank for the amount of such
drawing. In the event of cancellation or expiration of any Letter of
Credit in respect of which Company has deposited in the Collateral
Account any amounts described above, or in the event of any reduction in
the Applicable Maximum Available Amount under such Letter of Credit,
Global Agent shall apply the amount then on deposit in the Collateral
Account in respect of such Letter of Credit (less, in the case of such a
reduction, the Applicable Maximum Available Amount under such Letter of
Credit immediately after such reduction) first, to the payment of any
amounts payable to Global Agent pursuant to Section 10.2, second, to the
extent of any excess, to the Cash collateralization pursuant to the terms
of this Agreement of any outstanding Letters of Credit in respect of
which Company has failed to pay all or a portion of the amounts described
above (such Cash collateralization to be apportioned among all such
Letters of Credit in the manner described above), third, to the extent of
any further excess, to the payment of any other outstanding Obligations
in such order as Global Agent shall elect, and fourth, to the extent of
any further excess, to the payment to whomsoever shall be lawfully
entitled to receive such funds.
2.4. Pro Rata Shares. (a) All Loans shall be made, and all
participations purchased pursuant to Section 2 shall be purchased, as the case
may be, by Lenders simultaneously and proportionately to their respective Pro
Rata Shares, it being understood that no Lender shall be responsible for any
default by any other Lender in such other Lender's obligation to make a Loan
requested hereunder or purchase a participation required hereby nor shall the
Facility Commitment of any Lender be increased or decreased as a result of a
default by any other Lender in such other Lender's obligation to make a Loan
requested hereunder or purchase a participation required hereby.
(b) Without limiting the generality of the foregoing, in the event any
Facility Lender shall fail to advance funds to Company as herein provided, the
applicable Facility Agent may in its discretion, but shall not be obligated to,
make a Facility Loan under the applicable Facility Note
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in its favor as a Facility Lender of all or any portion of such amount or
amounts (each, a "Deficiency Advance") and shall thereafter be entitled to
payments of principal of and interest on such Deficiency Advance in the same
manner and at the same interest rate or rates to which such other applicable
Facility Lender would have been entitled had it made such advance under its
Facility Note; provided, upon payment to the applicable Facility Agent from such
other Facility Lender of the entire outstanding amount of each such Deficiency
Advance, together with accrued and unpaid interest thereon, from the most recent
date or dates interest was paid to such Facility Agent by Company on each
applicable Facility Loan comprising the Deficiency Advance, (i) with respect to
US Facility Loans, at the interest rate per annum for overnight borrowing by US
Facility Agent from the Federal Reserve Bank, and (ii) with respect to
Multicurrency Facility Loans, at the interest rate per annum equal to the
Multicurrency Overnight Rate, such payment shall be credited against the
applicable Facility Note of the applicable Facility Agent in full payment of
such Deficiency Advance and Company shall be deemed to have borrowed the amount
of such Deficiency Advance from such other Facility Lender as of the most recent
date or dates, as the case may be, upon which any payments of interest were made
by Company thereon.
2.5. Use of Proceeds. The proceeds of the Term Loans and any Facility
Loans made on the Closing Date shall be applied by Company on the Closing Date
to fund a portion of the Acquisition Financing Requirements. The proceeds of
the other Facility Loans, Swing Line Loans and Letters of Credit shall be
applied by Company for working capital and general corporate purposes of Company
and its Subsidiaries, including Permitted Acquisitions. No portion of the
proceeds of any Credit Extension shall be used by Company or any of its
Subsidiaries in any manner that might cause such Credit Extension or the
application of such proceeds to violate Regulation T, Regulation U or Regulation
X of the Board of Governors of the Federal Reserve System or any other
regulation thereof or to violate the Exchange Act, in each case as in effect on
the date or dates of such Credit Extension and such use of proceeds.
2.6. Evidence of Debt; Register; Lenders' Books and Records; Notes.
(a) Each Lender shall maintain on its internal records an account or accounts
evidencing the Indebtedness of Company to such Lender, including the amounts of
the Loans made by it and each repayment and prepayment in respect thereof. Any
such recordation shall be conclusive and binding on Company, absent manifest
error; provided, failure to make any such recordation, or any error in such
recordation, shall not affect any Lender's Facility Commitments or Company's
Obligations in respect of any applicable Loans; and provided further, in the
event of any inconsistency between the Register and any Lender's records, the
recordations in the Register shall govern.
(b) With respect to the Facilities, the applicable Facility Agent shall
maintain, at its Principal Office, a register for the recordation of the names
and addresses of the applicable Lenders and the Facility Commitments and Loans
of each such Lender from time to time, and with respect to the Term Loans US
Facility Agent shall maintain, at its Principal Office, a register for the
recordation of the names and addresses of the applicable Lenders and Loans of
each such Lender from time to time (each, a "Register"). Each Register shall be
available for inspection by Company or any Lender at any reasonable time and
from time to time upon reasonable prior notice. The applicable Facility Agent
shall record in the applicable Register the applicable Facility Commitments and
Loans, and each repayment or prepayment in respect of the principal amount
thereof, and any such recordation shall be conclusive and binding on Company
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<PAGE> 64
and each Lender, absent manifest error; provided, failure to make any such
recordation, or any error in such recordation, shall not affect any Lender's
Facility Commitment or Company's Obligations in respect of any Loan. Company
hereby designates Bank of America to serve as Company's agent solely for
purposes of maintaining each Register as provided in this Section 2.6(b), and
Company hereby agrees that, to the extent Bank of America serves in such
capacity, Bank of America and its officers, directors, employees, Agents and
affiliates shall constitute "Indemnitees".
(c) In addition to, and without limitation of, the other provisions of
this Section 2.6, from time to time, but in any event no less than once per each
calendar month during which any Multicurrency Facility Commitment is
outstanding, Multicurrency Facility Agent shall record in the applicable
Register the principal amount outstanding of each Multicurrency Facility Loan in
the applicable Multicurrency as well as the Dollar Equivalent thereof, based on
the Spot Rate of Exchange.
(d) If so requested by any Lender by written notice to Company (with a
copy to the applicable Facility Agent), Company shall execute and deliver to
such Lender (and/or, if applicable and if so specified in such notice, to any
Person who is an assignee of such Lender pursuant to Section 10.6) promptly
after Company's receipt of such notice, a Note or Notes to evidence such
Lender's Tranche A Term Loan, Tranche B Term Loan, Tranche C Term Loan, Facility
Loan or Swing Line Loan, as the case may be.
2.7. Interest Payments. (a) Except as otherwise set forth herein, each
Loan shall bear interest on the unpaid principal amount thereof from the date
made through maturity (whether by acceleration or otherwise) as follows:
(i) in the case of Term Loans and US Facility Loans (other than US
Swing Line Loans): (1) if a Base Rate Loan, at the sum of the Base Rate
plus the Applicable Margin; and (2) if a Eurodollar Rate Loan, at the sum
of the Eurodollar Rate plus the Applicable Margin;
(ii) in the case of US Swing Line Loans, (1) at the sum of the Base
Rate plus the Applicable Margin or (2) at the US Offered Rate;
(iii) in the case of Multicurrency Facility Loans (other than
Multicurrency Swing Line Loans) at the sum of the Multicurrency Rate plus
the Applicable Margin; and
(iv) in the case of Multicurrency Swing Line Loans, the
Multicurrency Offered Rate.
Notwithstanding the foregoing, on the Closing Date, and for up to five Business
Days from the Closing Date, Company may borrow all Loans at the Base Rate plus
the Initial Base Rate Margin; provided, any portion of any Loan bearing interest
at the Base Rate plus the Initial Base Rate Margin that has not been repaid or
converted on or before the fifth Business Day after the Closing Date to a Loan
bearing interest at the rates specified above shall be deemed to be a Loan
bearing interest from the Closing Date at the Base Rate plus the Applicable
Margin.
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<PAGE> 65
(b) The basis for determining (i) the rate of interest with respect to any
Loan (except US Swing Line Loans and Multicurrency Facility Loans), and (ii) the
Interest Period with respect to any Eurodollar Rate Loan or any Multicurrency
Facility Loan, shall be selected by Company and notified to the applicable
Facility Agent and applicable Lenders pursuant to the applicable Funding Notice
or Conversion/Continuation Notice; provided, no Fixed Rate Loan with an Interest
Period in excess of one month shall be available until the earlier of (1) the
date that is ninety (90) days after the Closing Date, and (2) the date that
Syndication Agent notifies Company and Global Agent that the primary syndication
of the Loans and Commitments has been completed, as determined by Syndication
Agent. If on any day a Loan is outstanding with respect to which notice has not
been delivered to Global Agent in accordance with the terms hereof specifying
the applicable basis for determining the rate of interest, then for that day (A)
if such a Loan was a Eurodollar Rate Loan, such Loan shall become a Base Rate
Loan, and (B) if such Loan was a Multicurrency Facility Loan, such Loan shall
become a Multicurrency Facility Loan with an Interest Period of one month.
(c) Notwithstanding anything contained herein to the contrary, in
connection with Eurodollar Rate Loans, there shall be no more than twenty (20)
Interest Periods outstanding at any time and, in connection with Multicurrency
Facility Loans, there shall be no more than ten (10) Interest Periods
outstanding at any time. In the event Company fails to specify an Interest
Period for any Fixed Rate Loan in the applicable Funding Notice or
Conversion/Continuation Notice, Company shall be deemed to have selected an
Interest Period of one month.
(d) Interest payable hereunder shall be computed (i) in the case of Base
Rate Loans and Multicurrency Facility Loans denominated in British Pounds
Sterling, on the basis of a 365-day or 366-day year, as the case may be, and
(ii) in the case of Fixed Rate Loans denominated in any other Multicurrency, on
the basis of a 360-day year, in each case for the actual number of days elapsed
in the period during which it accrues. In computing interest on any Loan, the
date of the making of such Loan or the first day of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan being converted
from a Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan
to such Base Rate Loan, as the case may be, shall be included, and the date of
payment of such Loan or the expiration date of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being converted to a Eurodollar
Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate
Loan, as the case may be, shall be excluded; provided, if a Loan is repaid on
the same day on which it is made, one day's interest shall be paid on that Loan.
(e) Except as otherwise set forth herein, interest on each Loan shall be
payable in arrears on and to (i) each Interest Payment Date applicable to that
Loan; (ii) any prepayment of that Loan, whether voluntary or mandatory, to the
extent accrued on the amount being prepaid; and (iii) at maturity, including
final maturity.
(f) Company agrees to pay to each Issuing Bank, with respect to drawings
honored under any Letter of Credit issued thereby, interest on the amount paid
by such Issuing Bank in respect of each such honored drawing from the date such
drawing is honored to but excluding the date such amount is reimbursed by or on
behalf of Company at a rate equal to (i) in the case of US Letters of Credit,
for the period from the date such drawing is honored to but excluding the
applicable Reimbursement Date, the rate of interest otherwise payable hereunder
with respect to
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US Facility Loans that are Base Rate Loans, and thereafter, a rate which is 2%
per annum in excess of such rate; (ii) in the case of Multicurrency Letters of
Credit, for the period from the date such drawing is honored to but excluding
the applicable Reimbursement Date, the rate of interest otherwise payable
hereunder with respect to Multicurrency Swing Line Loans if made by such
Multicurrency Issuing Bank in the applicable Multicurrency, and thereafter, a
rate which is 2% per annum in excess of such rate.
(g) Interest payable pursuant to Section 2.7(f) shall be computed on the
basis of a 360- day year for the actual number of days elapsed in the period
during which it accrues, and shall be payable on demand or, if no demand is
made, on the date on which the related drawing under a Letter of Credit is
reimbursed in full. Promptly upon receipt by an Issuing Bank of any payment of
interest pursuant hereto, (i) such Issuing Bank shall distribute to each
applicable Lender, out of the interest received by such Issuing Bank in respect
of the period from the date such drawing is honored to but excluding the date on
which such Issuing Bank is reimbursed for the amount of such drawing (including
any such reimbursement out of the proceeds of any Facility Loans), the amount
that such Lender would have been entitled to receive in respect of the letter of
credit fee that would have been payable in respect of such Letter of Credit for
such period if no drawing had been honored under such Letter of Credit, and (ii)
in the event such Issuing Bank shall have been reimbursed by Lenders for all or
any portion of such honored drawing, such Issuing Bank shall distribute to each
applicable Lender which has paid all amounts payable by it under Section 2.3(b)
with respect to such honored drawing such Lender's Pro Rata Share of any
interest received by such Issuing Bank in respect of that portion of such
honored drawing so reimbursed by such Lenders for the period from the date on
which Issuing Bank was so reimbursed by Lenders to but excluding the date on
which such portion of such honored drawing is reimbursed by Company. Any such
distribution shall be made to a Lender at its Lending Office or at such other
address as such Lender may request.
2.8. Conversion/Continuation. (a) Provided no Default or Event of Default
shall have occurred and then be continuing, Company shall have the option:
(i) to convert at any time all or any part of any US Facility Loan
(except US Swing Line Loans) from one Type of US Facility Loan to another
Type of US Facility Loan; provided, a Eurodollar Rate Loan may only be
converted into a Base Rate Loan on the expiration of the Interest Period
applicable to such Eurodollar Rate Loan;
(ii) upon the expiration of any Interest Period applicable to any
Eurodollar Rate Loan, to continue all or any portion of such Loans as
Eurodollar Rate Loans; and
(iii) upon the expiration of any Interest Period applicable to any
Multicurrency Facility Loans, to continue all or any portion of such
Loans as Multicurrency Facility Loans in the applicable Multicurrency.
(b) Company shall deliver a Conversion/Continuation Notice to Global Agent
on or before 11:00 a.m. (New York City time) at least three Business Days in
advance of the proposed conversion date in the case of a conversion or a
continuation of any Loan, other than a Base Rate Loan (in which case such
Conversion/Continuation Notice shall be delivered on or before 11:00 a.m. (New
York City time) on the day of the proposed conversion). Except as otherwise
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provided herein, a Conversion/Continuation Notice for conversion to, or
continuation of, any Eurodollar Rate Loans or continuation of any Multicurrency
Facility Loans (or, in any case, telephonic notice in lieu thereof) shall be
irrevocable on and after the related Interest Rate Determination Date, and
Company shall be bound to effect a conversion or continuation in accordance
therewith.
2.9. Default Interest. Upon the occurrence and during the continuation of
an Event of Default, the principal amount of all Loans and, to the extent
permitted by applicable law, any interest payments on the Loans or any fees or
other amounts owed hereunder not paid when due, in each case whether at stated
maturity, by notice of prepayment, by acceleration or otherwise, shall
thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable bankruptcy laws) payable on demand
at a rate that is 2% per annum in excess of the interest rate otherwise payable
hereunder with respect to the applicable Loans (or, in the case of any such fees
and other amounts, at a rate which is 2% per annum in excess of the interest
rate otherwise payable hereunder for Base Rate Loans); provided, in the case of
Fixed Rate Loans, upon the expiration of the Interest Period in effect at the
time any such increase in interest rate is effective, (i) Fixed Rate Loans that
are Eurodollar Rate Loans shall thereupon become Base Rate Loans and shall
thereafter bear interest payable upon demand at a rate which is 2% per annum in
excess of the interest rate otherwise payable hereunder for Base Rate Loans, and
(ii) Fixed Rate Loans that are Multicurrency Facility Loans shall thereupon bear
interest payable upon demand at a rate which is 2% per annum in excess of the
interest rate otherwise payable hereunder for Multicurrency Facility Loans,
determined based on successive Interest Periods of one month each. Payment or
acceptance of the increased rates of interest provided for in this Section 2.9
is not a permitted alternative to timely payment and shall not constitute a
waiver of any Event of Default or otherwise prejudice or limit any rights or
remedies of any Agent or any Lender.
2.10. Fees. (a) Company agrees to pay to US Facility Agent, for
distribution to each Lender having US Facility Exposure in proportion to such
Lender's Pro Rata Share, commitment fees equal to the product of (i) the
difference of (1) the US Facility Commitments, and (2) the sum of (A) the
aggregate principal amount of outstanding of US Facility Loans (not including US
Swing Line Loans), and (B) the aggregate face amount of all US Letters of Credit
then issued and unreimbursed, times (ii) the Applicable US Facility Commitment
Fee Percentage. All such commitment fees shall be calculated on the basis of a
360-day year and the actual number of days elapsed, and shall be payable
quarterly in arrears on March 15, June 15, September 15 and December 15 of each
year, commencing on the first such date to occur after the Closing Date, and on
the US Facility Commitment Termination Date. Promptly upon receipt by US
Facility Agent of any amount described in this Section 2.10(a), US Facility
Agent shall distribute to each Lender its Pro Rata Share of such amount.
(b) Company agrees to pay to Multicurrency Facility Agent, for
distribution to each Lender having Multicurrency Facility Exposure in proportion
to such Lender's Pro Rata Share, facility fees equal to the product of (i) the
aggregate amount of Multicurrency Facility Commitments, times (ii) the
Applicable Multicurrency Facility Fee Percentage. All such facility fees shall
be calculated on the basis of a 360-day year and the actual number of days
elapsed, and shall be payable quarterly in arrears on March 15, June 15,
September 15 and December 15 of each year, commencing on the first such date to
occur after the Closing Date, and on the
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Multicurrency Facility Commitment Termination Date. Promptly upon receipt by
Multicurrency Facility Agent of any amount described in this Section 2.10(b),
Multicurrency Facility Agent shall distribute to each Lender its Pro Rata Share
of such amount.
(c) Company agrees to pay the following fees with respect to US Letters of
Credit:
(i) a fronting fee, payable directly to US Issuing Bank for its own
account, equal to 0.250%, per annum, of the aggregate daily amount
available to be drawn under all outstanding US Letters of Credit, and
(ii) a letter of credit fee, payable to US Facility Agent for
distribution to each Lender having US Facility Exposure in proportion to
such Lender's Pro Rata Share, equal to the product of (1) the Applicable
Margin for US Facility Loans that are Eurodollar Rate Loans, times (2)
the daily amount available to be drawn under all such Letters of Credit.
All such fees shall be calculated on the basis of a 360-day year and the actual
number of days elapsed, and shall be payable quarterly in arrears on March 15,
June 15, September 15 and December 15 of each year, commencing on the first such
date to occur after the Closing Date, and on the US Facility Commitment
Termination Date. Promptly upon receipt by US Facility Agent of any amount
described in clause (ii) above, US Facility Agent shall distribute to each
Lender its Pro Rata Share of such amount.
(d) Company agrees to pay the following fees with respect to Multicurrency
Letters of Credit:
(i) a fronting fee, payable directly to each Multicurrency Issuing
Bank for its own account, equal to 0.250%, per annum, of the Dollar
Equivalent of the aggregate daily amount available to be drawn under all
outstanding Multicurrency Letters of Credit issued thereby, and
(ii) a letter of credit fee, payable to Global Agent for
distribution to each Lender having Multicurrency Facility Exposure in
proportion to such Lender's Pro Rata Share, equal to the product of (1)
the Applicable Margin for Multicurrency Facility Loans (other than
Multicurrency Swing Line Loans), times (2) the Dollar Equivalent of the
daily amount available to be drawn under all such Letters of Credit.
All such fees shall be calculated on the basis of a 360-day year and the actual
number of days elapsed, and shall be payable quarterly in arrears on March 15,
June 15, September 15 and December 15 of each year, commencing on the first such
date to occur after the Closing Date, and on the Multicurrency Facility
Commitment Termination Date. Promptly upon receipt by Multicurrency Facility
Agent of any amount described in clause (ii) above, Multicurrency Facility Agent
shall distribute to each Lender its Pro Rata Share of such amount.
(e) Without duplication of any of the fees set forth in Sections 2.10(c)
and 2.10(d), Company agrees to pay documentary and processing charges payable
directly to each Issuing Bank for its own account in accordance with such
Issuing Bank's standard schedule for such charges in effect at the time of such
issuance, amendment, transfer or payment, as the case may
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be. For purposes of calculating any fees payable under this Section, the daily
amount available to be drawn under any Letter of Credit shall be determined as
of the close of business on any date of determination.
(f) Company agrees to pay to Agents, for their respective accounts, the
fees set forth in the separate letter agreement among Company and Agents at the
times and in the amounts set forth therein.
2.11. Scheduled Payments/Reductions. (a) The Term Loans shall be payable
as to principal in the aggregate annual amounts set forth below in consecutive
quarterly installments (each, an "Installment") on the last day of each Fiscal
Quarter (each, an "Installment Date") occurring in each of the Fiscal Years set
forth below, commencing March 31, 1999, with 25% of each annual amount being
paid on each Installment Date:
<TABLE>
<CAPTION>
Tranche A Tranche B Tranche C
Fiscal Term Loan Term Loan Term Loan
Year Installments Installments Installments
<S> <C> <C> <C>
1999 --- $ 2,900,000 $ 2,850,000
2000 $ 57,500,000 $ 2,900,000 $ 2,850,000
2001 $ 86,250,000 $ 2,900,000 $ 2,850,000
2002 $115,000,000 $ 2,900,000 $ 2,850,000
2003 $143,750,000 $ 2,900,000 $ 2,850,000
2004 $172,500,000 $ 2,900,000 $ 2,850,000
2005 --- $272,600,000 $ 2,850,000
2006 --- --- $265,050,000
</TABLE>
Notwithstanding the foregoing, (i) such Installments shall be reduced in
connection with any voluntary or mandatory prepayments of the Tranche A Term
Loans, the Tranche B Term Loans or the Tranche C Term Loans, as the case may be,
in accordance with Sections 2.12(a) or 2.13; and (ii) the Tranche A Term Loans,
the Tranche B Term Loans and the Tranche C Term Loans, together with all other
amounts owed hereunder with respect thereto, shall be paid in full no later than
the Tranche A Term Loan Maturity Date, the Tranche B Term Loan Maturity Date or
the Tranche C Term Loan Maturity Date, respectively, and the final Installment
payable by Company on each such date shall be in an amount sufficient to repay
all amounts owing by Company hereunder with respect to the Tranche A Term Loans,
the Tranche B Term Loans or the Tranche C Term Loans, as applicable.
(b) The Multicurrency Facility Commitments shall be permanently reduced in
the aggregate annual amounts set forth below in consecutive quarterly
installments (each, a "Reduction") on the last day of each Fiscal Quarter (each,
a "Reduction Date") occurring in each of the Fiscal Years set forth below,
commencing March 31, 2000, with 25% of each annual amount being reduced on each
Installment Date:
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<TABLE>
<CAPTION>
Fiscal Multicurrency Facility
Year Commitments Reductions
<S> <C>
2000 $25,000,000
2001 $37,500,000
2002 $50,000,000
2003 $62,500,000
2004 $75,000,000
</TABLE>
Notwithstanding the foregoing, such Reductions shall be reduced in connection
with any voluntary or mandatory reductions of the Multicurrency Facility
Commitments in accordance with Sections 2.12(b) or 2.13.
2.12. Voluntary Prepayments/Reductions.
(a) Prepayments. Any time and from time to time:
(1) with respect to Term Loans, Company may prepay any such
Loans on any Business Day in whole or in part, in an aggregate
minimum amount of $10,000,000 and integral multiples of $1,000,000
in excess of that amount;
(2) with respect to US Facility Loans, Company may prepay any
such Loans on any Business Day in whole or in part in an aggregate
minimum amount of $5,000,000 and integral multiples of $1,000,000
in excess of that amount;
(3) with respect to US Swing Line Loans, Company may prepay
any such Loans on any Business Day in whole or in part in an
aggregate minimum amount of $500,000, and in integral multiples of
$100,000 in excess of that amount;
(4) with respect to Multicurrency Facility Loans, Company may
prepay any such Loans on any Business Day in whole or in part in an
aggregate minimum amount of 5,000,000 Units of the applicable
Multicurrency and in integral multiples of 1,000,000 Units of such
Multicurrency in excess of that amount; and
(5) with respect to Multicurrency Swing Line Loans, Company
may prepay any such Loans on any Business Day in whole or in part
in an aggregate minimum amount of 5,000,000 Units of the applicable
Multicurrency and in integral multiples of 100,000 Units of such
Multicurrency in excess of that amount.
(ii) All such prepayments shall be made:
(1) upon not less than one Business Day's prior written or
telephonic notice, in the case of Base Rate Loans;
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(2) upon not less than three Business Days' prior written or
telephonic notice, in the case of Eurodollar Rate Loans;
(3) upon written or telephonic notice on the date of
prepayment, in the case of US Swing Line Loans;
(4) upon not less than three Business Days' prior written or
telephonic notice in the case of Multicurrency Facility Loans
(other than Multicurrency Swing Line Loans); and
(5) upon written or telephonic notice on the date of
prepayment in the case of Multicurrency Swing Line Loans;
in each case given to the applicable Facility Agent and the
applicable Swing Line Lender by 12:00 noon (New York City time,
London, England time or Tokyo, Japan time, as applicable) on the
date required and, if given by telephone, promptly confirmed in
writing to the applicable Facility Agent (and such Facility Agent
will promptly transmit such telephonic or original notice for Term
Loans or Facility Loans, as the case may be, by telefacsimile or
telephone to each Lender). Upon the giving of any such notice, the
principal amount of the Loans specified in such notice shall become
due and payable on the prepayment date specified therein.
(b) Reductions.
(i) Company may, upon not less than three Business Days' prior
written or telephonic notice confirmed in writing to US Facility Agent
(which original written or telephonic notice US Facility Agent will
promptly transmit by telefacsimile or telephone to each applicable
Lender), at any time and from time to time terminate in whole or
permanently reduce in part, without premium or penalty, the US Facility
Commitments in an amount up to the amount by which the US Facility
Commitments exceed the Total Utilization of US Facility Commitments at
the time of such proposed termination or reduction; provided, any such
partial reduction of the US Facility Commitments shall be in an aggregate
minimum amount of $10,000,000 and integral multiples of $1,000,000 in
excess of that amount. Company's notice to US Facility Agent shall
designate the date (which shall be a Business Day) of such termination or
reduction and the amount of any partial reduction, and such termination
or reduction of the US Facility Commitments shall be effective on the
date specified in Company's notice and shall reduce the US Facility
Commitment of each Lender proportionately to its Pro Rata Share thereof.
(ii) Company may, upon not less than three Business Days' prior
written or telephonic notice confirmed in writing to Multicurrency
Facility Agent (which original written or telephonic notice Multicurrency
Facility Agent will promptly transmit by telefacsimile or telephone to
each applicable Lender), at any time and from time to time terminate in
whole or permanently reduce in part, without premium or penalty, the
Multicurrency Facility Commitments in an amount up to the amount by which
the Multicurrency Facility Commitments exceed the Total Utilization of
Multicurrency
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Facility Commitments at the time of such proposed termination or
reduction; provided, any such partial reduction of the Multicurrency
Facility Commitments shall be in an aggregate minimum amount of
$10,000,000 and integral multiples of $1,000,000 in excess of that amount.
Company's notice to Multicurrency Facility Agent shall designate the date
(which shall be a Business Day) of such termination or reduction and the
amount of any partial reduction, and such termination or reduction of the
Multicurrency Facility Commitments shall be effective on the date
specified in Company's notice and shall reduce the Multicurrency Facility
Commitment of each Lender proportionately to its Pro Rata Share thereof.
2.13. Mandatory Prepayments/Reductions. (a) No later than the first
Business Day following the date of receipt by Company or any of its Subsidiaries
of any Net Asset Sale Proceeds, Company shall prepay the Loans and/or the
Facility Commitments shall be permanently reduced as set forth in Section
2.14(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided,
so long as no Default or Event of Default shall have occurred and be continuing,
at any time the Reduced Leverage/Improved Ratings Status is in effect, Company
shall have the option, directly or through one or more of its Subsidiaries, to
invest such Net Asset Sale Proceeds (or, at any time the Reduced
Leverage/Improved Ratings Status is not in effect, up to $25,000,000 in each
Fiscal Year, plus 50% of such Net Asset Sale Proceeds in excess of $25,000,000)
within two hundred seventy (270) days of receipt thereof in productive assets of
the general type used in the business of Company and its Subsidiaries; provided
further, pending any such investment all such Net Asset Sale Proceeds shall be
applied to prepay outstanding Facility Loans (without a reduction in Facility
Commitments).
(b) No later than the first Business Day following the date of receipt by
Company or any of its Subsidiaries, or Global Agent as loss payee, of any Net
Insurance/Condemnation Proceeds, Company shall prepay the Loans and/or the
Facility Commitments shall be permanently reduced as set forth in Section
2.14(b) in an aggregate amount equal to such Net Insurance/Condemnation
Proceeds; provided, (i) so long as no Default or Event of Default shall have
occurred and be continuing, and (ii) to the extent no Material Adverse Effect
shall have occurred as of the date of, and after giving effect to, the receipt
of such Net Insurance/Condemnation Proceeds, Company shall have the option,
directly or through one or more of its Subsidiaries to invest such Net
Insurance/Condemnation Proceeds within two hundred seventy (270) days of receipt
thereof in productive assets of the general type used in the business of Company
and its Subsidiaries, which investment may include the repair, restoration or
replacement of the applicable assets of Company or its Subsidiaries; provided
further, pending any such investment all such Net Insurance/Condemnation
Proceeds, as the case may be, shall be applied to prepay outstanding Facility
Loans (without a reduction in Facility Commitments).
(c) On the date of receipt by Company or any of its Subsidiaries of any
Cash proceeds from a capital contribution to, or the issuance of any equity
Securities of, Company or any of its Subsidiaries (except (i) to Company or any
Wholly-Owned Subsidiary, (ii) with respect to any Cash proceeds that are used as
consideration for any Permitted Acquisition within one hundred twenty (120) days
of the receipt thereof and (iii) with respect to the exercise of any option
granted to employees or directors of Company pursuant to any compensation plan
of Company), Company shall prepay the Loans and/or the Facility Commitments
shall be permanently reduced as set forth in Section 2.14(b) in an aggregate
amount equal to 50% of such
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proceeds, net of underwriting discounts and commissions and other reasonable
costs and expenses associated therewith, including reasonable legal fees and
expenses; provided, during any period in which the Reduced Leverage/Improved
Ratings Status is in effect, Company shall not be required to make the
prepayment and/or reduction otherwise required hereby.
(d) On the date of receipt by Company or any of its Subsidiaries of any
Cash proceeds from incurrence of any Indebtedness of Company or any of its
Subsidiaries (except to Company or any Wholly-Owned Subsidiary and except with
respect any Indebtedness permitted to be incurred pursuant to Section 6.1),
Company shall prepay the Loans and/or the Facility Commitments shall be
permanently reduced as set forth in Section 2.14(b) in an aggregate amount equal
to 100% of such proceeds, net of underwriting discounts and commissions and
other reasonable costs and expenses associated therewith, including reasonable
legal fees and expenses.
(e) Within three Business Days of receipt by Company or any of its
Subsidiaries of any Cash proceeds from any Permitted Securitization Transaction,
Company shall prepay the Loans and/or the Facility Commitments shall be
permanently reduced as set forth in Section 2.14(b) in an aggregate amount equal
to 100% of such proceeds, net of underwriting discounts and commissions and
other reasonable costs and expenses associated therewith, including reasonable
legal fees and expenses.
(f) In the event that there shall be Consolidated Excess Cash Flow for any
Fiscal Year (commencing with Fiscal Year 1999), Company shall, no later than
ninety (90) days after the end of such Fiscal Year, prepay the Loans and/or the
Facility Commitments shall be permanently reduced as set forth in Section
2.14(b) in an aggregate amount equal to 50% of such Consolidated Excess Cash
Flow; provided, during any period in which the Reduced Leverage/Improved Ratings
Status shall be in effect, Company shall not be required to make the prepayment
and/or reduction otherwise required hereby.
(g) Company shall from time to time prepay first, the US Swing Line Loans,
and second, the US Facility Loans to the extent necessary so that the Total
Utilization of US Facility Commitments shall not at any time exceed the US
Facility Commitments then in effect.
(h) Company shall from time to time prepay first, the Multicurrency Swing
Line Loans, and second, the Multicurrency Facility Loans to the extent necessary
so that the Total Utilization of Multicurrency Facility Commitments shall not at
any time exceed Multicurrency Facility Commitments then in effect.
Notwithstanding the foregoing, in the event that any adjustment by Multicurrency
Facility Agent of the Dollar Equivalent of the outstanding Multicurrency Loans
pursuant to Section 2.6(c) would cause the Total Utilization of Multicurrency
Facility Commitments to exceed 103% of the Multicurrency Facility Commitments
then in effect, Company shall, immediately on the effective date of such
adjustment, repay the portion of such continued Loan (applying the new Spot Rate
of Exchange) necessary to ensure that thereafter the Total Utilization of
Multicurrency Facility Commitments does not exceed the Multicurrency Facility
Commitments then in effect.
(i) Concurrently with any prepayment of the Loans and/or reduction of the
Facility Commitments pursuant to Sections 2.13(a) through 2.13(f), Company shall
deliver to Global
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Agent and each Facility Agent a certificate of its Authorized Officers
demonstrating the calculation of the amount of the applicable net proceeds or
Consolidated Excess Cash Flow, as the case may be, that gave rise to such
prepayment and/or reduction. In the event that Company shall subsequently
determine that the actual net proceeds amount was greater than the amount set
forth in such certificate, Company shall promptly make an additional prepayment
of the Loans and/or the Commitments shall be permanently reduced in an amount
equal to the amount of such excess, and Company shall concurrently therewith
deliver to Global Agent and each Facility Agent a certificate of its Authorized
Officers demonstrating the derivation of such excess.
2.14. Application of Prepayments/Reductions. (a) Any prepayment of any
Loan pursuant to Section 2.12(a) shall be applied as specified by Company in the
applicable notice of prepayment; provided, in the event Company fails to specify
the Loans to which any such prepayment shall be applied, such prepayment shall
be applied as follows:
first, to repay outstanding US Swing Line Loans and Multicurrency
Swing Line Loans on a pro rata basis, in accordance with the respective
outstanding principal amounts thereof (which, in the case of
Multicurrency Swing Line Loans shall be the Dollar Equivalent of the
aggregate amount of all such Loans based on the Spot Rate of Exchange as
of the date of such prepayment ) to the full extent thereof;
second, to repay outstanding US Facility Loans in accordance with
the respective outstanding principal amounts thereof to the full extent
thereof; and
third, to prepay the Tranche A Term Loans, the Tranche B Term Loans,
the Tranche C Term Loans and the Multicurrency Facility Loans (other than
Multicurrency Swingline Loans) on a pro rata basis (in accordance with
the respective outstanding principal amounts thereof) and shall be
further applied on a pro rata basis to each scheduled installment of
principal or scheduled reduction, as the case may be of the Tranche A
Term Loans, Tranche B Term Loans, Tranche C Term Loans and the
Multicurrency Facility Loans (other than Multicurrency Swingline Loans).
(b) Any amount required to be paid pursuant to Sections 2.13(a) through
2.13(f) (the "Applied Amount") shall be applied as follows:
first, to prepay the Term Loans on a pro rata basis (in accordance
with the respective outstanding principal amounts thereof) and shall be
further applied on a pro rata basis to each scheduled installment of
principal thereof that is unpaid at the time of such prepayment;
second, to the extent of any remaining portion of the Applied
Amount, to prepay outstanding Swing Line Loans on a pro rata basis, in
accordance with the respective outstanding principal amounts thereof
(which, in the case of Multicurrency Swing Line Loans shall be the Dollar
Equivalent of the aggregate amount of all such Loans based on the Spot
Rate of Exchange as of the date of such prepayment ) to the full extent
thereof and to permanently reduce the Facility Commitments to the full
extent thereof by the amount of such prepayment;
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third, to the extent of any remaining portion of the Applied Amount,
to prepay outstanding Facility Loans on a pro rata basis, in accordance
with the respective outstanding principal amounts thereof (which, in the
case of Multicurrency Facility Loans shall be the Dollar Equivalent of
the aggregate amount of all such Loans based on the Spot Rate of Exchange
as of the date of such prepayment) to the full extent thereof and to
permanently reduce the Facility Commitments to the full extent thereof by
the amount of such prepayment; and
fourth, to the extent of any remaining portion of the Applied
Amount, to further permanently reduce the Facility Commitments on a pro
rata basis, in accordance with the respective principal amounts thereof
to the full extent thereof by the amount of such prepayment;
provided, if at any time (i) Moody's has assigned to Company's long term
Indebtedness for borrowed money a rating of Baa1 or higher, and (ii) S&P has
assigned to Company's long term Indebtedness for borrowed money a rating of BBB+
or higher, then Company shall not be required to apply any portion of the
Applied Amount pursuant to subparts second through fourth of this sentence.
(c) Considering each Class of Loans being prepaid separately, any
prepayment thereof shall be applied first to Base Rate Loans to the full extent
thereof before application to Eurodollar Rate Loans, in each case in a manner
which minimizes the amount of any payments required to be made by Company
pursuant to Section 2.22.
2.15. Allocation of Certain Payments and Proceeds. If an Event of Default
has occurred and not been waived, and the maturity of the Obligations has been
accelerated pursuant to Section 8.1, all payments or proceeds received by Agents
hereunder in respect of any principal of, or interest on, the Obligations, or in
respect of any other of the Obligations, shall be applied by Agents in the
following order:
first, amounts due to Agents pursuant to Section 10.2, to be applied for
the ratable benefit of Agents;
second, amounts due to Lenders, if any, pursuant to Sections 2.18, 2.22 or
2.23, to be applied for the ratable benefit of Lenders without distinction or
preference as among them;
third, amounts due to Lenders pursuant to Sections 2.10 and 10.2, to be
applied for the ratable benefit of Lenders without distinction or preference as
among them;
fourth, amounts due to Agents pursuant to Section 2.10(f), to be applied
in accordance therewith;
fifth, payments of interest on Loans, to be applied for the ratable
benefit of Lenders, without distinction or preference as among Term Loans,
Multicurrency Facility Loans and US Facility Loans;
sixth, payments of principal on Loans, and all Obligations then payable to
any Lender Counterparty pursuant to a Hedge Agreement permitted hereby, to be
applied for the ratable
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benefit of Lenders and such Lender Counterparties, without distinction or
preference as among Term Loans, Multicurrency Facility Loans and US Facility
Loans and such Hedge Agreements;
seventh, amounts due to Agents or Lenders pursuant to Section 10.3, to be
applied for the ratable benefit of Agents and Lenders;
eighth, payments of all other Obligations due under any of the Credit
Documents, if any, to be applied for the ratable benefit of Lenders and Agents;
and
ninth, any surplus remaining after application as provided for herein, to
Company or as otherwise may be required by applicable law.
2.16. General Provisions Regarding Payments. (a) Except as set forth in
Section 2.16(b), all payments by Company of principal, interest, fees and other
Obligations, including Term Loans, US Facility Loans or US Letters of Credit,
shall be made in Same Day Funds in Dollars, in each case without defense, setoff
or counterclaim, free of any restriction or condition, and delivered to US
Facility Agent not later than 12:00 noon (New York City time) on the date due at
its Principal Office for the account of Lenders; funds received by US Facility
Agent after that time on such due date shall be deemed to have been paid by
Company on the next succeeding Business Day. Upon receipt of any such payment,
US Facility Agent shall promptly pay each Lender its applicable Pro Rata Share
thereof.
(b) All payments by Company of principal, interest, fees and other
Obligations with respect to Multicurrency Facility Loans and Multicurrency
Letters of Credit shall be made in Same Day Funds in the applicable
Multicurrency, in each case without defense, setoff or counterclaim, free of any
restriction or condition, and delivered to Multicurrency Facility Agent not
later than 1:00 p.m.(London, England time) on the date due at its Principal
Office for the account of Lenders; funds received thereafter on such due date
shall be deemed to have been paid by Company on the next succeeding Business
Day. Upon receipt of any such payment, Multicurrency Facility Agent shall
promptly pay to each Lender its applicable Pro Rata Share thereof.
(c) All payments in respect of the principal amount of any Loan shall
include payment of accrued interest on the principal amount being repaid or
prepaid, and all such payments (and, in any event, any payments in respect of
any Loan on a date when interest is due and payable with respect to such Loan)
shall be applied to the payment of interest before application to principal.
(d) The applicable Facility Agent shall deem any payment by or on behalf
of Company hereunder that is not made both (i) in Dollars, in the case of Term
Loans and US Facility Loans, or in the applicable Multicurrency, in the case of
Multicurrency Facility Loans, and, in either case, in Same Day Funds and (ii)
prior to 12:00 noon (New York City time), in the case of Term Loans and US
Facility Loans, and prior to 1:00 p.m. (London, England time) in the case of
Multicurrency Facility Loans, to be a non-conforming payment. Any such payment
shall not be deemed to be received by the applicable Facility Agent until the
later of (x) the time such funds become available funds in the required Dollars
or the Multicurrency, as the case may be, and (y) the applicable next Business
Day. The applicable Facility Agent shall give prompt
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telephonic notice to Company and each of the applicable Facility Lenders
(confirmed in writing) if any payment is non-conforming. Any non-conforming
payment may constitute or become a Default or Event of Default in accordance
with the terms of Section 8.1(a). Interest shall continue to accrue on any
principal as to which a non-conforming payment is made until such funds become
available funds (but in no event less than the period from the date of such
payment to the next succeeding applicable Business Day) at the applicable
Default Rate or the Highest Lawful Rate, whichever is lower, from the date such
amount was due and payable until the date such amount is paid in full.
2.17. Ratable Sharing. Lenders hereby agree among themselves that if any
of them shall, whether by voluntary payment (other than a voluntary prepayment
of Loans made and applied in accordance with the terms hereof), by realization
upon security, through the exercise of any right of set-off or banker's Lien, by
counterclaim or cross action or by the enforcement of any right under the Credit
Documents or otherwise, or as adequate protection of a deposit treated as Cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then due and owing to such
Lender hereunder or under the other Credit Documents (collectively, the
"Aggregate Amounts Due" to such Lender) which is greater than the proportion
received by any other Lender in respect of the Aggregate Amounts Due to such
other Lender, then any Lender receiving such proportionately greater payment
shall (a) notify the applicable Facility Agent and each other Lender of the
receipt of such payment and (b) apply a portion of such payment to purchase
participations (which it shall be deemed to have purchased from each seller of a
participation simultaneously upon the receipt by such seller of its portion of
such payment) in the Aggregate Amounts Due to the other Lenders so that all such
recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion
to the Aggregate Amounts Due to them; provided, if all or part of such
proportionately greater payment received by such purchasing Lender is thereafter
recovered from such Lender upon the bankruptcy or reorganization of Company or
otherwise, those purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to such purchasing Lender ratably to the
extent of such recovery, but without interest. Company expressly consents to
the foregoing arrangement and agrees that any holder of a participation so
purchased may exercise any and all rights of banker's Lien, set-off or
counterclaim with respect to any and all monies owing by Company to that holder
with respect thereto as fully as if that holder were owed the amount of the
participation held by that holder. Notwithstanding anything in this Section
2.17 to the contrary, any amount with respect to the Aggregate Amounts Due by or
to any Lender shall be calculated and thereafter be denominated in Dollars at
the Spot Rate of Exchange.
2.18. Increased Cost and Reduced Return. (a) If, after the date hereof,
the adoption of any applicable law, rule, or regulation, or any change in any
applicable law, rule, or regulation, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank, or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its applicable Lending Office) with any request or
directive (whether or not having the force of law) of any such Governmental
Authority, central bank, or comparable agency:
(i) shall subject such Lender (or its applicable Lending Office) to
any tax, duty, or other charge with respect to any Fixed Rate Loans or
any Note; or shall change
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the basis of taxation of any amounts payable to such Lender (or its
applicable Lending Office) under this Agreement or any Note in respect of
any Fixed Rate Loans (other than taxes imposed on the overall net income
of such Lender by the jurisdiction in which such Lender has its principal
office or such applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve, special
deposit, assessment, compulsory loan, or similar requirement (other than
the Applicable Reserve Requirement utilized in the determination of the
Eurodollar Rate or the Multicurrency Rate) relating to any extensions of
credit or other assets of, or any deposits with or other liabilities or
commitments of, such Lender (or its applicable Lending Office), including
the applicable Facility Commitments of such Lender hereunder; or
(iii) shall impose on such Lender (or its applicable Lending Office)
or the London or applicable offshore interbank market any other condition
affecting this Agreement or any Note or any of such extensions of credit
or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its applicable Lending Office) of making, converting into, continuing, or
maintaining or participating in any Fixed Rate Loan or to reduce any sum
received or receivable by such Lender (or its applicable Lending Office) under
this Agreement or any Note with respect to any Fixed Rate Loan, then Company
shall pay to such Lender on demand such amount or amounts as will compensate
such Lender for such increased cost or reduction. If any Lender requests
compensation by Company under this Section 2.18(a), Company may, by notice to
such Lender (with a copy to the applicable Facility Agent and Global Agent),
suspend the obligation of such Lender to make or continue Loans of the Type with
respect to which such compensation is requested, or to convert Loans of any
other Type into Loans of such Type, until the event or condition giving rise to
such request ceases to be in effect (in which case the provisions of Section
2.21 shall be applicable); provided, such suspension shall not affect the right
of such Lender to receive the compensation so requested.
(b) If any Lender shall have determined that the adoption of any
applicable law, rule, or regulation regarding capital adequacy or any change
therein or in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such Governmental Authority,
central bank, or comparable agency after the date hereof has or would have the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request, or
directive (taking into consideration its policies with respect to capital
adequacy), then from time to time upon demand Company shall pay to such Lender
such additional amount or amounts as will compensate such Lender for such
reduction.
(c) Each Lender shall promptly notify Company and Agents of any event of
which it has knowledge, occurring after the date hereof, which will entitle such
Lender to compensation pursuant to this Section 2.18 and will designate a
different applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in
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the judgment of such Lender, be otherwise disadvantageous to it, as determined
in such Lender's sole discretion. Any Lender claiming compensation under this
Section 2.18 shall furnish to Company and Agents a statement setting forth the
reason and the additional amount or amounts to be paid to it hereunder which
shall be conclusive in the absence of manifest error. In determining such
amount, such Lender may use any reasonable averaging and attribution methods.
2.19. Limitation on Types of Loans. If on or prior to the first day of
any Interest Period for any Fixed Rate Loan:
(a) the applicable Facility Agent in the Facility in which such Fixed Rate
Loan is to be made or continued or converted determines (which determination
shall be conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate or Multicurrency Rate, as the case may be, for such Interest
Period; or
(b) the Requisite Class Lenders in the Facility in which such Fixed Rate
Loan is to be made or continued or converted determine (which determination
shall be conclusive) and notify the applicable Facility Agent and Global Agent
that (i) the Eurodollar Rate will not adequately and fairly reflect the cost to
Lenders in such Facility of funding Fixed Rate Loans for such Interest Period or
(ii) that the Multicurrency Rate does not represent, in the case of
Multicurrency Facility Lenders, the effective cost to those Lenders for deposits
in the applicable Multicurrency of comparable amounts for the applicable
Interest Period;
then the applicable Facility Agent shall give Company prompt notice thereof
specifying the relevant Type of Loans and the relevant amounts or periods, and
so long as such condition remains in effect, the applicable Lenders in such
Facility or Facilities shall be under no obligation to make additional Loans of
such Type, continue Loans of such Type, or to convert Loans of any other Type
into Loans of such Type and Company shall, on the last day(s) of the then
current Interest Period(s) for the outstanding Loans of the affected Type,
either repay such Loans or convert such Loans into another Type of Loan in
accordance with the terms of this Agreement.
2.20. Illegality. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or its applicable Lending
Office to make, maintain, or fund any Fixed Rate Loans hereunder, then such
Lender shall promptly notify Company and such Lender's obligation to make or
continue any Fixed Rate Loans and to convert other Types of Loans into such
Fixed Rate Loans shall be suspended until such time as such Lender may again
make, maintain, and fund such Fixed Rate Loans (in which case the provisions of
Section 2.21 shall be applicable).
2.21. Treatment of Affected Loans. If the obligation of any Lender to
make a particular Type of Fixed Rate Loan or to continue, or to convert Loans of
any other Type into, Loans of a particular Type shall be suspended pursuant to
Section 2.18 or 2.20 (Loans of such Type being herein called "Affected Loans"
and such Type being herein called the "Affected Type"), such Lender's Affected
Loans shall be automatically converted into, in the case of the US Facility, a
Base Rate Loan or, in the case of the Multicurrency Facility, a Multicurrency
Facility Alternative
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Rate Loan (each referred to as a "Substitute Base Rate Loans") on the last
day(s) of the then current Interest Period(s) for Affected Loans (or, in the
case of a conversion required by Section 2.20, on such earlier date as such
Lender may specify to Company with a copy to the applicable Facility Agent and
Global Agent) and, unless and until such Lender gives notice as provided below
that the circumstances specified in Section 2.18 or 2.20 that gave rise to such
conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been so
converted, all payments and prepayments of principal that would otherwise be
applied to such Lender's Affected Loans shall be applied instead to its
Substitute Base Rate Loans; and
(b) all Loans that would otherwise be made or continued by such Lender as
Loans of the Affected Type shall be made or continued instead as Substitute Base
Rate Loans, and all Loans of such Lender that would otherwise be converted into
Loans of the Affected Type shall be converted instead into (or shall remain as)
Substitute Base Rate Loans.
If such Lender gives notice to Company (with a copy to the applicable Facility
Agent and Global Agent) that the circumstances specified in Section 2.18 or 2.20
that gave rise to the conversion of such Lender's Affected Loans pursuant to
this Section 2.21 no longer exist (which such Lender agrees to do promptly upon
such circumstances ceasing to exist) at a time when Loans of the Affected Type
made by other Lenders are outstanding, such Lender's Substitute Base Rate Loans
shall be automatically converted, on the first day(s) of the next succeeding
Interest Period(s) for such outstanding Loans of the Affected Type, to the
extent necessary so that, after giving effect thereto, all Loans held by Lenders
holding Loans of the Affected Type and by such Lender are held pro rata (as to
principal amounts, Types, and Interest Periods) in accordance with their
respective Pro Rata Shares applicable to the Facility in which the Affected
Loans were made.
2.22. Compensation. Upon the request of any Lender, Company shall pay to
such Lender such amount or amounts as shall be sufficient (in the reasonable
opinion of such Lender) to compensate it for any loss, cost, or expense
(including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or conversion of a Fixed Rate Loan for any
reason (including, without limitation, any voluntary prepayment pursuant to
Section 2.12, any mandatory prepayment pursuant to Section 2.13 or the
acceleration of the Loans pursuant to Section 8.1) on a date other than the last
day of the Interest Period for such Loan; or
(b) any failure by Company (including, without limitation, the failure of
any condition precedent specified in Section 3) to borrow, convert, continue, or
prepay a Fixed Rate Loan on the date for such borrowing, conversion,
continuation, or prepayment specified in the relevant notice of borrowing,
prepayment, continuation, or conversion under this Agreement.
2.23. Taxes. (a) Any and all payments by Company to any Lender or any
Agent under this Agreement and any other Credit Document shall be made free and
clear of, and without deduction or withholding for, any Taxes. In addition,
Company shall pay all Other Taxes.
(b) If Company shall be required by law to deduct or withhold any Taxes or
Other Taxes from or in respect of any sum payable hereunder to any Lender or any
Agent, then:
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(i) the sum payable shall be increased as necessary so that, after
making all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this Section
2.23), such Lender or Agent, as the case may be, receives and retains an
amount equal to the sum it would have received and retained had no such
deductions or withholdings been made;
(ii) Company shall make such deductions and withholdings; and
(iii) Company shall pay the full amount deducted or withheld to the
relevant taxing authority or other authority in accordance with
applicable law.
(c) Company agrees to indemnify and hold harmless each Lender and each
Agent for the full amount of Taxes and Other Taxes in the amount that the
respective Lender reasonably specifies as necessary to preserve the after-tax
yield Lender would have received if such Taxes or Other Taxes, as the case may
be, had not been imposed, and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes, as the case may be, were correctly or
legally asserted. Payment under this indemnification shall be made within 30
days after the date the applicable Lender or Agent makes written demand
therefor.
(d) Within 30 days after the date of any payment by Company of Taxes or
Other Taxes, Company shall furnish to each applicable Lender or the applicable
Facility Agent the original or a certified copy of a receipt evidencing payment
thereof, or other evidence of payment satisfactory to such Lender or Agent.
(e) If Company is required to pay any amount to any Lender or Agent
pursuant to subsection (b) or (c) of this Section 2.23, then such Lender shall
use reasonable efforts (consistent with legal and regulatory restrictions) to
change the jurisdiction of its applicable Lending Office so as to eliminate any
such additional payment by Company which may thereafter accrue, if such change
in the reasonable judgment of such Lender is not otherwise materially
disadvantageous to such Lender.
(f) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by Company or
the applicable Facility Agent, shall provide Company and the applicable Facility
Agent with (i) Internal Revenue Service Form 1001 or 4224, as appropriate (or if
such Lender is not a "bank'' or other Person described in Section 881(c)(3) of
the Internal Revenue Code and cannot deliver either Internal Revenue Service
Form 1001 or 4224 pursuant to clause (i) above, a Certificate re Non-Bank
Status), or any successor form prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to benefits under an income tax treaty
to which the United States is a party which establishes such Lender is not
subject to withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the conduct
of a trade or business in the United States, (ii) Internal Revenue Service Form
W-8 or W-9, as appropriate, or any successor form prescribed by the Internal
Revenue Service, and (iii) any other form or certificate required by any taxing
authority
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(including any certificate required by Sections 871(h) and 881(c) of the
Internal Revenue Code), certifying that such Lender is entitled to an exemption
from a tax on payments pursuant to this Agreement or any of the other Credit
Documents.
(g) Each Lender required to deliver any forms, certificates or other
evidence with respect to United States federal income tax withholding matters
pursuant to this Section 2.23 hereby agrees, from time to time after the initial
delivery by such Lender of such forms, certificates or other evidence, that
whenever a lapse in time or change in circumstances renders such forms,
certificates or other evidence obsolete or inaccurate in any material respect,
such Lender shall promptly deliver to the applicable Facility Agent for
transmission to Company two new original copies of Internal Revenue Service Form
1001 or 4224, as appropriate, a Certificate of Non-Bank Status, or Internal
Revenue Service Form W-8 or W-9, as appropriate, as the case may be, properly
completed and duly executed by such Lender, together with any other certificate
or statement of exemption required in order to confirm or establish that such
Lender is not subject to deduction or withholding of United States federal
income tax with respect to payments to such Lender under the Credit Documents,
or such Lender shall notify the applicable Facility Agent and Company of its
inability to deliver any such forms, certificates or other evidence.
(h) Each Multicurrency Facility Lender (other than a Lender entitled to
receive payments of interest in respect of each Multicurrency Facility Loan free
of withholding or deduction for or on account of United Kingdom income tax under
Section 349(3)(a) of the Income and Corporation Taxes Act 1988 of the United
Kingdom (a "Multicurrency Qualifying Lender"); provided, this Section 2.23(h)
shall apply to a Multicurrency Qualifying Lender which loses such status, other
than through a change in any applicable law, treaty or governmental rule,
regulation or order, or any change in the interpretation, administration or
application thereof after the Closing Date) shall deliver to the appropriate
Person such application forms, certificates, documents or other evidence as may
be required from time to time, properly completed and duly executed by such
Multicurrency Facility Lender, to enable Company to be able to pay interest on
the Multicurrency Facility Loans of such Multicurrency Facility Lender without
withholding or deduction for or on account of any United Kingdom income tax.
(i) For any period with respect to which a Lender has failed to provide
Company and the applicable Facility Agent with the appropriate form pursuant to
Section 2.23(f), 2.23(g) or 2.23(h), as applicable (unless such failure is due
to a change in treaty, law, or regulation occurring subsequent to the date on
which a form originally was required to be provided), such Lender shall not be
entitled to indemnification under Section 2.23(a), 2.23(b) or 2.23(c) with
respect to Taxes imposed by the United States or United Kingdom, as applicable;
provided, should a Lender, which is otherwise exempt from or subject to a
reduced rate of withholding tax, become subject to Taxes because of its failure
to deliver a form required hereunder, Company shall take such steps as such
Lender shall reasonably request to assist such Lender to recover such Taxes.
2.24. Replacement Lender. In the event any Lender seeks additional
compensation pursuant to any of Sections 2.18 through 2.23 or is restricted from
making any Fixed Rate Loan under this Agreement (a "Restricted Lender"), so long
as no Default or Event of Default shall have occurred and be continuing and
Company has obtained a commitment from another Lender
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or an Eligible Assignee to become a Lender for all purposes hereunder, Company
may cause such Restricted Lender to be replaced by, and to assign all its Loans,
Facility Commitments and other Obligations owing thereto pursuant to Section
10.6, to such other Lender or an Eligible Assignee that is reasonably acceptable
to each applicable Facility Agent, each applicable Issuing Bank and Global Agent
and is not similarly restricted and will not seek such additional compensation.
Such Restricted Lender agrees to execute and to deliver to Global Agent and to
each applicable Facility Agent an Assignment Agreement with such replacement
Lender as provided in Section 10.6 upon payment at par of all principal,
interest, fees and other amounts owing under this Agreement to such Restricted
Lender, and such Restricted Lender shall pay to the applicable Facility Agent
the processing fee required by Section 10.6(d) in connection with such
assignment.
2.25. Funding. In the event Company or a Multicurrency Swing Line
Subsidiary elects to obtain any Loans as Fixed Rate Loans, or elects to continue
any Fixed Rate Loans or convert any portion of the principal amount of any
Floating Rate Loans to Fixed Rate Loans, each Lender may, if it so elects,
fulfill its obligation to make or continue any portion of the principal amount
of any Loan as, or to convert any portion of the principal amount of any Loan
into, a Fixed Rate Loan in accordance with any election made by Company or such
Multicurrency Swing Line Subsidiary, as applicable, by causing a foreign branch
or affiliate of such Lender or an international banking facility created by such
Lender to make such Fixed Rate Loan; provided, in such event such Fixed Rate
Loan shall be deemed to have been made by such Lender, and the obligation of
Company or such Multicurrency Swing Line Subsidiary, as applicable, to repay
such Fixed Rate Loan shall nevertheless be to such Lender and shall be deemed to
be held by such Lender, to the extent of such Fixed Rate Loan, for the account
of such foreign branch, affiliate or international banking facility. In
addition, each of Company and each Multicurrency Swing Line Subsidiary hereby
consents and agrees that, for purposes of any determination to be made for
purposes of this Agreement (including Sections 2.18, 2.19, 2.20 and 2.21), it
shall be conclusively assumed that each Lender elected to fund all Fixed Rate
Loans by purchasing deposits in the applicable Multicurrency in its eurocurrency
office's interbank eurocurrency market.
2.26. Economic and Monetary Union in the European Community. (a) The
provisions of this Section 2.26 relate to Multicurrency Facility Loans which
would otherwise be denominated in a National Currency Unit of a Participating
Member State and shall be effective from and after the commencement of the third
stage of EMU. If and to the extent that any such provisions relate to any
country (or the currency of such country) that is not a Participating Member
State on the commencement of the third stage of EMU, such provision shall become
effective as to such country (and the currency of such country) if and when such
country becomes a Participating Member State.
(b) Multicurrency Facility Loans and other Obligations to be Redenominated
into euro Units.
(i) From and after the commencement of the third stage of EMU, each
obligation under this Agreement of a party hereto which has been
denominated in the National Currency Unit of a Participating Member State
shall be redenominated into the euro unit in accordance with EMU
Legislation and applicable state law, provided, if and
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to the extent that any EMU Legislation provides that amounts denominated
in the euro unit or the National Currency Unit of a Participating Member
State that are payable within that country may be made in either currency
by crediting an account of the creditor, each party to this Agreement
shall be entitled to pay or repay any such amounts in either the euro unit
or such National Currency Unit.
(ii) Any Multicurrency Facility Loans denominated in a National
Currency Unit of a Participating Member State which were made prior to the
commencement of the third stage of EMU but which have Interest Periods
ending after the commencement of the third stage of EMU shall, for
purposes of this Agreement, remain denominated in such National Currency
Unit provided, such Loans may be repaid either in the euro or in such
National Currency Unit after the commencement of the third stage of EMU;
provided, further, from and after January 1, 2002 all such amounts shall
be deemed to be in euro units.
(iii) Any Multicurrency Facility Loans denominated in the National
Currency Unit of a Participating Member State which are made, continued or
converted on or after the commencement of the third stage of EMU shall
instead be made, continued or converted in the euro unit; provided, the
Borrower may request that Multicurrency Facility Loans be made, continued
or converted in the National Currency Unit of such Participating Member
State with respect to Loans having Interest Periods ending before January
1, 2002.
(iv) Subject to any EMU Legislation, references in this Agreement
to a minimum amount (or an integral multiple thereof) in a National
Currency Unit to be paid to or by a party hereto shall be deemed to be a
reference to such reasonably comparable and convenient amount (or an
integral multiple thereof) in the euro unit as Global Agent may from time
to time specify.
(c) Certain Definitions. From and after the commencement of the third
stage of EMU:
(i) Any reference to a Multicurrency Unit of a Participating
Member State in the definition of "Multicurrency" shall be deemed a
reference to the euro unit.
(ii) The definition of "LIBOR" as used in this Agreement shall,
with respect to any Multicurrency Facility Loan to be denominated in the
euro unit or a National Currency Unit of a Participating Member State,
mean the rate displayed on Telerate page 3740 or 3750 (or any replacement
page thereof or other applicable display page designated by Telerate) as
appropriate for deposits in such currency in the approximate amount of the
requested borrowing, conversion or continuation and having a comparable
maturity to the Interest Period for such borrowing, conversion or
continuation at approximately 11:00 a.m. (London time) two TARGET Business
Days prior to the requested date of such borrowing, conversion or
continuation.
(iii) The definition of "Business Day" shall, with respect to dates
for the payment or purchase of any amount denominated in the euro unit or
the National
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Currency Unit of a Participating Member State, be deemed to mean a day
(other than a Saturday or a Sunday) on which (1) banks are generally open
for business in London, New York City, and in the principal financial
center in such Participating Member State, as Global Agent shall from time
to time determine for this purpose, and (2) such clearing or settlement
system as the Administrative Agent shall from time to time nominate for
this purpose in such principal financial center is open for business for
the clearing or settlement of the euro.
(d) Payments.
(i) All payments by Company or any Lender of amounts denominated
in the euro or a National Currency Unit of a Participating Member State,
shall be made in immediately available, freely transferable, cleared funds
to the account of the applicable Agent in the principal financial center
in such Participating Member State, as from time to time designated by
such Agent for such purpose.
(ii) All amounts payable by any Agent to any party under this
Agreement in the National Currency Unit of a Participating Member State
shall instead be paid in the euro unit.
(iii) No Agent shall be liable to any party to this Agreement in
any way whatsoever for any delay, or the consequences of any delay, in the
crediting to any account of any amount denominated in the euro or a
National Currency Unit of a Participating Member State.
(iv) All references herein to the London interbank or other
national market with respect to any National Currency Unit of a
Participating Member State shall be deemed a reference to the applicable
markets and locations referred to in Section 2.26(c)(iii).
(e) Basis of Accrual. If the basis of accrual of interest or fees
expressed in this Agreement with respect to the National Currency Unit of a
Participating Member State shall be inconsistent with any convention or practice
in the London interbank market or other applicable interbank market, as the case
may be, for the basis of accrual of interest or fees with respect to the euro,
such convention or practice shall replace such expressed basis, effective as of
and from the date on which such country becomes a Participating Member State;
provided, if any Multicurrency Facility Loan in the currency of such country is
outstanding immediately prior to such date, such replacement shall take effect,
with respect to such Loan, at the end of the then current Interest Period.
(f) Increased Costs. Company shall, from time to time upon demand of
any Lender (with a copy to Global Agent), pay to such Lender the amount of any
cost or increased cost incurred by, or of any reduction in any amount payable to
or in the effective return on its capital to, or of interest or other return
foregone by, such Lender or any holding company of such Lender as a result of
the introduction of, changeover to or operation of the euro in a Participating
Member State, other than any such cost or reduction or amount foregone reflected
in any interest rate hereunder.
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(g) Unavailability of euro. If Multicurrency Facility Agent at any time
determines that: (i) the euro has ceased to be utilized as the basic accounting
unit of the European Community; (ii) for reasons affecting the market in euros
generally, euros are not freely traded between banks internationally; or (iii)
it is illegal, impossible or impracticable for payments to be made hereunder in
euro, then Multicurrency Facility Agent may, in its discretion declare (such
declaration to be binding on all the parties hereto) that any payment made or to
be made thereafter which, but for this provision, would have been payable in the
euro shall be made in a component currency of the euro or dollars (as selected
by Multicurrency Facility Agent (the "Selected Currency") and the amount to be
so paid shall be calculated on the basis of the equivalent of the euro in the
Selected Currency).
(h) Additional Changes at Multicurrency Facility Agent's Discretion.
Except as expressly provided in this Section, provisions of this Agreement shall
be subject to such further reasonable changes of construction as Multicurrency
Facility Agent may from time to time in its reasonable discretion specify to be
necessary or appropriate to reflect the changeover to the euro in Participating
Member States.
SECTION 3. CONDITIONS PRECEDENT; RELEASE OF COLLATERAL
3.1. Closing Date. The obligation of any Lender to make a Credit
Extension on the Closing Date is subject to the satisfaction, or waiver in
accordance with Section 10.5, of the following conditions on or before the
Closing Date:
(a) Credit Documents. Global Agent shall have received sufficient
copies of each Credit Document originally executed and delivered by each
applicable Credit Party, for each Lender and its counsel.
(b) Organizational Documents; Incumbency. Global Agent shall have
received sufficient copies of each Organizational Document of each Credit Party,
as applicable, and, to the extent applicable, certified as of a recent date by
the appropriate governmental official, for each Lender and its counsel, each
dated the Closing Date or a recent date prior thereto, together with signature
and incumbency certificates of the officers of such Person executing the Credit
Documents to which it is a party.
(c) Organizational and Capital Structure. The organizational structure
and the capital structure of Company and its Subsidiaries, both before and
after giving effect to the Acquisition, shall be as set forth on Schedule
3.1(c).
(d) Related Agreements and Opinions. Syndication Agent and Global Agent
shall each have received a fully executed or conformed copy of each Related
Agreement and any documents executed in connection therewith, together with
copies of each of the opinions of counsel delivered to the parties under the
Related Agreements, accompanied by a letter from each such counsel (to the
extent not inconsistent with such counsel's established internal policies)
authorizing Lenders to rely upon such opinion to the same extent as though it
were addressed to Lenders. Each Related Agreement shall be in full force and
effect and no provision thereof shall have been modified or waived in any
respect determined by Syndication Agent or Global Agent to be material, in each
case without the consent of Syndication Agent and Global Agent.
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(e) Existing Indebtedness. Syndication Agent and Global Agent shall have
received evidence that, after giving effect to the initial borrowings hereunder
and the consummation of the Acquisition, the outstanding Indebtedness of Credit
Parties in Schedule 6.1 in the aggregate principal amount shall not exceed
$20,000,000.
(f) Application of Cash. Company shall have provided evidence
satisfactory to Syndication Agent and Global Agent that the Cash on hand of
Company and it Subsidiaries is not less than $283,000,000 and that such Cash has
been irrevocably committed, prior to the application of the proceeds of the Term
Loans and the Facility Loans to be made on the Closing Date, to the payment of
the Acquisition Financing Requirements.
(g) Governmental Authorizations and Consents. Each Credit Party shall
have obtained all Governmental Authorizations and all consents of other Persons,
in each case that are necessary or advisable in connection with the transactions
contemplated by the Credit Documents and each of the foregoing shall be in full
force and effect except as contemplated by the Acquisition Agreement (which
consents shall be obtained by the applicable Credit Party in accordance with the
terms and conditions of the Acquisition Agreement and in any event, promptly
after the Closing Date) and except those the failure to obtain or maintain
which, either individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect. No action, request for stay, petition for
review or rehearing, reconsideration, or appeal with respect to any of the
foregoing shall be pending, and the time for any applicable agency to take
action to set aside its consent on its own motion shall have expired.
(h) Consummation of Acquisition. With respect to the consummation of the
Acquisition, (i) all conditions to the Acquisition set forth in Article IV of
the Acquisition Agreement shall have been satisfied or the fulfillment of any
such conditions shall have been waived with the consent of Syndication Agent and
Global Agent, (ii) the Acquisition shall have become effective in accordance
with the terms of the Acquisition Agreement, (iii) the aggregate Cash
consideration paid to Seller in connection with the Acquisition shall not exceed
$1,650,000,000, subject to any Post Closing Adjustment, and (iv) the Transaction
Costs shall not have exceeded $47,000,000.
(i) Real Estate Assets. In order to create in favor of Global Agent, for
the benefit of Lenders, a valid and, subject to any filing and/or recording
referred to herein, perfected First Priority security interest in certain Real
Estate Assets, Global Agent shall have received from Company and each
applicable Guarantor:
(i) fully executed and notarized Mortgages, in proper form for
recording in all appropriate places in all applicable jurisdictions,
encumbering each Real Estate Asset listed in Schedule 3.1(i)(i) (each, a
"Closing Date Mortgaged Property");
(ii) an opinion of counsel (which counsel shall be reasonably
satisfactory to Syndication Agent and Global Agent) in each state in which
a Closing Date Mortgaged Property is located with respect to the
enforceability of the form(s) of Mortgages to be recorded in such state
and such other matters as Syndication Agent and Global Agent may
reasonably request, in each case in form and substance reasonably
satisfactory to Syndication Agent and Global Agent;
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(iii) in the case of each Leasehold Property that is a Closing Date
Mortgaged Property, (1) a Landlord Consent and Estoppel and (2) evidence
that such Leasehold Property is a Recorded Leasehold Interest;
(iv) ALTA mortgagee title insurance policies or unconditional
commitments therefor issued by a title company with respect to each
Closing Date Mortgaged Property, together with a title report issued by a
title company with respect thereto, dated not more than thirty (30) days
prior to the Closing Date and copies of all recorded documents listed as
exceptions to title or otherwise referred to therein, each in form and
substance reasonably satisfactory to Syndication Agent and Global Agent;
(v) evidence of flood insurance with respect to each Flood Hazard
Property that is located in a community that participates in the National
Flood Insurance Program, in each case in compliance with any applicable
regulations of the Board of Governors of the Federal Reserve System, in
form and substance reasonably satisfactory to Syndication Agent and Global
Agent; and
(vi) ALTA surveys of all Closing Date Mortgaged Properties which
are not Leasehold Properties, certified to Global Agent and dated not more
than thirty (30) days prior to the Closing Date.
(j) Personal and Mixed Property Collateral. In order to create in favor
of Global Agent, for the benefit of Lenders, a valid and, subject to any filing
and/or recording referred to herein, perfected First Priority security interest
in all personal and mixed property Collateral, Global Agent shall have received:
(i) certificates (which certificates shall be accompanied by
irrevocable undated stock powers, duly endorsed in blank and otherwise
satisfactory in form and substance to Global Agent) representing all
capital stock pledged pursuant to the Pledge and Security Agreement, and,
if applicable, Acknowledgments of Pledge from each applicable issuer of
Securities pledged pursuant to the Pledge and Security Agreement;
(ii) (1) the results of a recent search, by a Person satisfactory
to Syndication Agent and Global Agent, of all effective UCC financing
statements and fixture filings and all judgment and tax lien filings which
may have been made with respect to any personal or mixed property of any
Credit Party, together with copies of all such filings disclosed by such
search, and (2) UCC termination statements duly executed by all applicable
Persons for filing in all applicable jurisdictions as may be necessary to
terminate any effective UCC financing statements or fixture filings
disclosed in such search (other than any such financing statements or
fixture filings in respect of Permitted Liens);
(iii) UCC financing statements and, where appropriate, fixture
filings, duly executed by each applicable Credit Party with respect to all
personal and mixed property Collateral of such Credit Party, for filing in
the jurisdictions listed on Schedule 3.1 to the Pledge and Security
Agreement to perfect the security interests created in such Collateral
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pursuant to the Collateral Documents (which jurisdictions for
Physiotherapy Associates Inc. shall be Michigan, Tennessee, California
and New Jersey only);
(iv) upon the Closing Date or promptly thereafter, all cover
sheets or other documents or instruments required to be filed with each
applicable filing office, as determined by Global Agent in order to create
or perfect Liens in respect of any Intellectual Property Collateral;
(v) an opinion of one or more counsel (each of which shall be
reasonably satisfactory to Syndication Agent and Global Agent) with
respect to the creation and perfection of the security interests in favor
of Global Agent in such Collateral and such other matters regarding such
security interests as Syndication Agent and Global Agent may reasonably
request, in each case in form and substance reasonably satisfactory to
Syndication Agent and Global Agent; and
(vi) evidence that each Credit Party shall have taken or caused to
be taken any other action, executed and delivered or caused to be executed
and delivered any other agreement, document and instrument, including a
Waiver and Consent Agreement duly executed by the landlord of any
Leasehold Property by Company or any its Subsidiaries, and made or caused
to be made any other filing and recording (other than as set forth herein)
reasonably required by Syndication Agent and Global Agent.
(k) Environmental Reports. Syndication Agent and Global Agent shall have
each received (i) with respect to each Manufacturing Facility listed on Schedule
3.1(k), a Phase I Report, and (ii) with respect to each other Manufacturing
Facility, reports and other information regarding environmental matters relating
to such Manufacturing Facility, for each of clauses (i) and (ii), in scope and
substance satisfactory to Syndication Agent and Global Agent.
(l) Financial Statements; Projections. Lenders shall have received from
Company, (i) the Historical Financial Statements, (ii) a pro forma combined
balance sheet of Company and its Subsidiaries as at the Closing Date, prepared
in accordance with GAAP and reflecting the consummation of the Acquisition, the
related financings and the other transactions contemplated by the Credit
Documents and the Related Agreements, which pro forma financial statements shall
be in form and substance satisfactory to Lenders, and (iii) the Projections.
(m) Evidence of Insurance. Syndication Agent and Global Agent shall have
received a certificate from Company's insurance broker or other evidence
satisfactory to it that all insurance required to be maintained pursuant to
Section 5.5 is in full force and effect and that Global Agent on behalf of
Lenders has been named as additional insured and/or loss payee thereunder to the
extent required under Section 5.5.
(n) Opinion of Counsel to Credit Parties. Lenders and their respective
counsel shall have received originally executed copies of the favorable written
opinions of Whitman Breed Abbott & Morgan LLP and of such other counsel for
Credit Parties, which other counsel shall be reasonably satisfactory to
Syndication Agent and Global Agent, in the form of Exhibit D and as to such
other matters as Global Agent or Syndication Agent may reasonably request, and
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otherwise in form and substance reasonably satisfactory to Global Agent and
Syndication Agent and its counsel, dated as of the Closing Date.
(o) Opinion of Counsel to Syndication Agent and Global Agent. Lenders
shall have received originally executed copies of the favorable written opinion
of Skadden, Arps, Slate, Meagher & Flom LLP, counsel to Syndication Agent and
Global Agent, dated as of the Closing Date, in form and substance reasonably
satisfactory thereto.
(p) Fees. Company shall have paid to Agents, for distribution (as
appropriate) to Agents and Lenders, the fees payable on the Closing Date
referred to in Section 2.10(f).
(q) Completion of Proceedings. All partnership, corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Global Agent, acting on behalf of Lenders, or Syndication Agent
and its counsel shall be satisfactory in form and substance to Global Agent and
Syndication Agent and such counsel, and Global Agent, Syndication Agent and such
counsel shall have received all such counterpart originals or certified copies
of such documents as Global Agent or Syndication Agent may reasonably request.
(r) Solvency Letter. On the Closing Date, Syndication Agent, Global
Agent and Lenders shall have received a letter from Valuation Research
Corporation, dated the Closing Date, and addressed to Syndication Agent, Global
Agent and Lenders, in form and substance satisfactory to Syndication Agent and
Global Agent and with appropriate attachments.
(s) Closing Date Certificate. Company shall have delivered to
Syndication Agent and Global Agent an originally executed Closing Date
Certificate, together with all attachments thereto.
(t) Closing Date. Lenders shall have made the Term Loans to Company on
or before December 31, 1998.
3.2. Conditions to each Credit Extension. (a) The obligation of each
Lender to make any Loan, or each Issuing Bank to issue any Letter of Credit, on
any Credit Date, including the Closing Date, are subject to the following
conditions precedent; provided, each Lender agrees that the making of any Credit
Extension made thereby shall be deemed to be the acknowledgment of such Lender
that each of the conditions precedent in Section 3.1 and 3.2 have been duly
satisfied or such Lender has waived the satisfaction thereof:
(i) the applicable Facility Agent, the applicable Swing Lender or
the applicable Issuing Bank, as the case may be, shall each have received
a fully executed and delivered Funding Notice or Issuance Notice, as the
case may be;
(ii) with respect to any US Facility Loan or US Letter of Credit,
after making any such Credit Extension requested on such Credit Date, the
Total Utilization of US Facility Commitments shall not exceed the US
Facility Commitments then in effect;
(iii) with respect to any Multicurrency Facility Loan or
Multicurrency Letter of Credit, after making any such Credit Extension
requested on such Credit Date, the Total
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Utilization of Multicurrency Facility Commitments shall not exceed the
Multicurrency Facility Commitments then in effect;
(iv) no injunction or other restraining order shall have been
issued and no hearing to cause an injunction or other restraining order to
be issued shall be pending or noticed with respect to any action, suit or
proceeding seeking to enjoin or otherwise prevent the consummation of, or
to recover any damages or obtain relief as a result of, the transactions
contemplated hereby or the making any Credit Extension;
(v) as of the Closing Date, the representations and warranties
contained herein and in the other Credit Documents shall be true, correct
and complete in all respects on and as of the Closing Date to the same
extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in
which case such representations and warranties shall have been true,
correct and complete in all respects on and as of such earlier date;
(vi) as of such Credit Date (other than the Closing Date), the
representations and warranties contained herein and in the other Credit
Documents shall be true, correct and complete in all material respects on
and as of such Credit Date to the same extent as though made on and as of
that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations
and warranties shall have been true, correct and complete in all material
respects on and as of such earlier date;
(vii) as of such Credit Date, no event shall have occurred and be
continuing or would result from the consummation of the applicable Credit
Extension that would constitute an Event of Default or a Default; and
(viii) on or before the date of issuance of any Letter of Credit,
the applicable Issuing Bank shall have received all other information
required by the applicable Issuance Notice, and such other documents or
information as such Issuing Bank may reasonably require in connection with
the issuance of such Letter of Credit.
(b) Any Notice shall be executed by the chief executive officer, the
chief financial officer or the treasurer of Company or by the executive officer
thereof designated by the chief executive officer, the chief financial officer
or the treasurer of Company in a writing delivered to the applicable Facility
Agent. In lieu of delivering a Notice, Company may give Global Agent, the
applicable Swing Line Lender or the applicable Issuing Bank, as the case may be,
telephonic notice by the required time of any proposed borrowing,
conversion/continuation or issuance of a Letter of Credit, as the case may be;
provided each such notice shall be promptly confirmed in writing by delivery of
the applicable Notice to Global Agent, the applicable Swing Line Lender or the
applicable Issuing Bank, as the case may be, on or before the applicable date of
borrowing, continuation/conversion or issuance. None of Global Agent, any
Issuing Bank or any Lender shall incur any liability to Company in acting upon
any telephonic notice referred to above that Global Agent, the applicable Swing
Line Lender or the applicable Issuing Bank, as the case may be, believes in good
faith to have been given by a duly authorized officer or other person authorized
on behalf of Company or for otherwise acting in good faith.
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3.3. Release of Collateral. (a) If at any time (i) Moody's has assigned
to Company's long term Indebtedness for borrowed money a rating of Baa3 or
higher, and (ii) S&P has assigned to Company's long term Indebtedness for
borrowed money a rating of BBB- or higher, then, so long as no Default or Event
of Default shall have occurred and be continuing, Global Agent shall take or
cause to be taken any action, execute and deliver or cause to be executed and
delivered any agreement, document and instrument, and make or cause to be made
any filing and recording, in each case as requested by Company in order to
release the First Priority Lien of Global Agent in all of the Collateral except
the Investment Property Collateral.
(b) If at any time (i) Moody's has assigned to Company's long term
Indebtedness for borrowed money a rating of Baa1 or higher, and (ii) S&P has
assigned to Company's long term Indebtedness for borrowed money a rating of BBB+
or higher, then, so long as no Default or Event of Default shall have occurred
and be continuing, Global Agent shall take or cause to be taken any action,
execute and deliver or cause to be executed and delivered any agreement,
document and instrument, and make or cause to be made any filing and recording,
in each case as requested by Company in order to release the First Priority Lien
of Global Agent in all of the Collateral then subject thereto.
(c) If at any time either (i) Moody's has assigned to Company's long term
Indebtedness for borrowed money a rating of lower than Baa1, or (ii) S&P has
assigned to Company's long term Indebtedness for borrowed money a rating of
lower than BBB+, then, Company shall take or cause to be taken any action,
execute and deliver or cause to be executed and delivered any agreement,
document and instrument, and make or cause to be made any filing and recording,
in each case as requested by Global Agent or Requisite Lenders in order to grant
to Global Agent, for the benefit of Lenders, a First Priority Lien in all of the
Investment Property Collateral then or thereafter owned by Company and its
Subsidiaries in accordance with, and subject to the terms and conditions of, the
Collateral Documents.
(d) If at any time either (i) Moody's has assigned to Company's long term
Indebtedness for borrowed money a rating of lower than Baa3, or (ii) S&P has
assigned to Company's long term Indebtedness for borrowed money a rating of
lower than BBB-, then, Company shall take or cause to be taken any action,
execute and deliver or cause to be executed and delivered any agreement,
document and instrument, and make or cause to be made any filing and recording,
in each case as requested by Global Agent or Requisite Lenders in order to grant
to Global Agent, for the benefit of Lenders, a First Priority Lien in all of the
real, personal or mixed property of Company and its Subsidiaries defined as
"Collateral" under the Collateral Documents then or thereafter owned by Company
and its Subsidiaries in accordance with, and subject to the terms and conditions
of, the Collateral Documents.
(e) Company shall pay or otherwise reimburse Global Agent for all
reasonable costs and expenses incurred or made by or on behalf of Global Agent,
including, without limitation, all attorneys' fees and expenses, in complying
with this Section 3.3.
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SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders and each Issuing Bank to enter into this
Agreement and to make each Credit Extension to be made thereby, each Credit
Party represents and warrants to each Lender and each Issuing Bank, on the
Closing Date and on each Credit Date, that the following statements are true,
correct and complete (it being understood and agreed that the representations
and warranties made on the Closing Date are deemed to be made concurrently with
the consummation of the Acquisition as contemplated hereby):
4.1. Organization; Powers; Qualification. Each of Company and each of its
Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization as identified in Schedule 4.1, (b)
has all requisite power and authority to own and operate its properties, to
carry on its business as now conducted and as proposed to be conducted, to enter
into the Credit Documents to which it is a party and to carry out the
transactions contemplated thereby, and (c) is qualified to do business and is in
good standing in every jurisdiction where its assets are located and wherever
necessary to carry out its business and operations, except in jurisdictions
where the failure to be so qualified or in good standing has not had, and could
not be reasonably expected to have, a Material Adverse Effect. Schedule 4.1
correctly sets forth the ownership interest of Company and each of its
Subsidiaries in their respective Subsidiaries.
4.2. Authorization of Credit Documents; No Conflict. The execution,
delivery and performance of the Credit Documents have been duly authorized by
all necessary action on the part of each Credit Party that is a party thereto.
The execution, delivery and performance by Credit Parties of the Credit
Documents to which they are parties and the consummation of the transactions
contemplated by the Credit Documents do not and will not (a) violate any
provision of any law or any governmental rule or regulation applicable to
Company or any of its Subsidiaries, any of the Organizational Documents of
Company or any of its Subsidiaries, or any order, judgment or decree of any
court or other agency of government binding on Company or any of its
Subsidiaries; (b) except as otherwise set forth in the Acquisition Agreement,
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any Contractual Obligation of Company or any of
its Subsidiaries; (c) result in or require the creation or imposition of any
Lien upon any of the properties or assets of Company or any of its Subsidiaries
(other than any Liens created under any of the Credit Documents in favor of
Global Agent on behalf of Lenders); or (d) require any approval of stockholders
or any approval or consent of any Person under any Contractual Obligation of
Company or any of its Subsidiaries, except (i) for such approvals or consents
which will be obtained on or before the Closing Date and disclosed in writing to
Lenders, or (ii) as otherwise set forth in the Acquisition Agreement.
4.3. Governmental Consents. The execution, delivery and performance by
Credit Parties of the Credit Documents to which they are parties and the
consummation of the transactions contemplated by the Credit Documents do not and
will not require any registration with, consent or approval of, or notice to, or
other action to, with or by, any federal, state or other governmental authority
or regulatory body except as otherwise set forth in the Acquisition Agreement,
and except for filings and recordings with respect to the Collateral to be made,
or otherwise delivered to Global Agent, as of the Closing Date.
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4.4. Binding Obligation. Each Credit Document has been duly executed and
delivered by each Credit Party that is a party thereto and is the legally valid
and binding obligation of such Credit Party, enforceable against such Credit
Party in accordance with its respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles relating to
enforceability.
4.5. Historical Financial Statements; Projections. The Historical
Financial Statements were prepared in conformity with GAAP and fairly present,
in all material respects, the financial position, on a consolidated basis, of
the Persons and businesses described in such financial statements as at the
respective dates thereof and the results of operations and cash flows, on a
consolidated basis, of the entities described therein for each of the periods
then ended, subject, in the case of any such unaudited financial statements, to
changes resulting from audit and normal year-end adjustments. Neither Company
nor any of its Subsidiaries has any contingent liability or liability for taxes,
long-term lease or unusual forward or long-term commitment that is not reflected
in the Historical Financial Statements or the notes thereto and which in any
such case is material in relation to the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company and any of
its Subsidiaries taken as a whole. On and as of the Closing Date, the
projections of Company and its Subsidiaries for the period from the Closing
Date through and including December 31, 2007 (the "Projections") are based on
good faith estimates and assumptions made by the management of Company;
provided, the Projections are not to be viewed as facts and that actual results
during the period or periods covered by the Projections may differ from such
Projections and that the differences may be material; provided further, as of
the Closing Date, management of Company believed that the Projections were
reasonable and attainable.
4.6. No Material Adverse Effect; No Restricted Junior Payments.
Notwithstanding the definition of the term "Material Adverse Effect", (a) since
December 31, 1997, solely with respect to Company and its Subsidiaries prior to
giving effect to the Acquisition, no event or change has occurred that has
caused or evidences, either in any case or in the aggregate, a Material Adverse
Effect, (b) since the accounting period ended June 28, 1998, solely with respect
to Target and its Subsidiaries prior to giving effect to the Acquisition, no
event or change has occurred that has caused or evidences, either in any case or
in the aggregate, a Material Adverse Effect, and (c) since the Closing Date,
with respect to Company and its Subsidiaries after giving effect to the
Acquisition, no event or change has occurred that has caused or evidences,
either in any case or in the aggregate, a Material Adverse Effect. Neither
Company nor any of its Subsidiaries has directly or indirectly declared,
ordered, paid or made, or set apart any sum or property for, any Restricted
Junior Payment or agreed to do so except as permitted pursuant to Section 6.4 or
as disclosed on Schedule 4.6.
4.7. Litigation; Adverse Proceedings. There are no Adverse Proceedings,
individually or in the aggregate, that could reasonably be expected to have a
Material Adverse Effect. Neither Company nor any of its Subsidiaries (a) is in
violation of any applicable laws (including Environmental Laws) that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, or (b) is subject to or in default with respect to any
final judgments, writs, injunctions, decrees, rules or regulations of any court
or any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic
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or foreign, that, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect.
4.8. Payment of Taxes. Except in accordance with Section 5.3, all
federal and all material state and local tax returns and reports of Company and
its Subsidiaries required to be filed by any of them have been timely filed, and
all taxes shown on such tax returns to be due and payable and all assessments,
fees and other governmental charges upon Company and its Subsidiaries and upon
their respective properties, assets, income, businesses and franchises which are
due and payable have been paid when due and payable. Company knows of no
proposed tax assessment against Company or any of its Subsidiaries which is not
being actively contested by Company or such Subsidiary in good faith and by
appropriate proceedings; provided, such reserves or other appropriate
provisions, if any, as shall be required in conformity with GAAP shall have been
made or provided therefor.
4.9. Title to Properties. (a) Company and its Subsidiaries have (i)
insurable, subject to exceptions that do not materially adversely affect the use
of the applicable property, title to (in the case of fee interests in real
property), (ii) valid leasehold interests in (in the case of leasehold interests
in real or personal property), or (iii) good title to (in the case of all other
personal property) all of their respective properties and assets reflected in
the Historical Financial Statements or in the most recent financial statements
delivered pursuant to Section 5.1, in each case except for assets disposed of
since the date of such financial statements in the ordinary course of business
or as otherwise permitted under Section 6.7, and except for assets the failure
to have such title with respect to which, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
Except as permitted by this Agreement, all such properties and assets are free
and clear of Liens.
(b) As of the Closing Date, Schedule 4.9 contains a true, accurate and
complete list of (i) all Real Estate Assets and (ii) all leases, subleases or
assignments of leases (together with all amendments, modifications, supplements,
renewals or extensions of any thereof) affecting each Real Estate Asset of any
Credit Party, regardless of whether such Credit Party is the landlord or tenant
(whether directly or as an assignee or successor in interest) under such lease,
sublease or assignment. Except as specified in Schedule 4.9, or as could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, each agreement listed in clause (ii) of the immediately
preceding sentence is in full force and effect and Company does not have
knowledge of any default that has occurred and is continuing thereunder, and
each such agreement constitutes the legally valid and binding obligation of each
applicable Credit Party, enforceable against such Credit Party in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles.
4.10. Collateral. (a) The execution and delivery of the Collateral
Documents by Credit Parties, together with the actions taken on or prior to the
Closing Date pursuant to Sections 3.1(i) and 3.1(j) are effective to create in
favor of Global Agent for the benefit of Lenders, as security for the respective
Secured Obligations (as defined in the applicable Collateral Document in respect
of any Collateral), a valid and perfected First Priority Lien on all of the
Collateral, and all filings and other actions necessary or desirable to perfect
and maintain the perfection and First Priority status of such Liens have been
duly made or taken and remain in full force and effect,
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other than the filing of any UCC financing statements delivered to Global Agent
for filing (but not yet filed) and the periodic filing of UCC continuation
statements in respect of UCC financing statements filed by or on behalf of
Global Agent.
(b) No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for
either (i) the pledge or grant by any Credit Party of the Liens purported to be
created in favor of Global Agent pursuant to any of the Collateral Documents or
(ii) the exercise by Global Agent of any rights or remedies in respect of any
Collateral (whether specifically granted or created pursuant to any of the
Collateral Documents or created or provided for by applicable law), except for
filings or recordings contemplated by Sections 3.1(i) and 3.1(j) and except as
may be required, in connection with the disposition of any Investment Property
Collateral, by laws generally affecting the offering and sale of securities.
(c) Except with respect to any Permitted Lien, and except such as may
have been filed in favor of Global Agent as contemplated by Section 3.1(i) or
3.1(j), no effective UCC financing statement, fixture filing or other instrument
similar in effect covering all or any part of the Collateral is on file in any
filing or recording office, including, without limitation, with respect to the
Intellectual Property Collateral.
(d) All information supplied to Global Agent by or on behalf of any
Credit Party with respect to any of the Collateral (in each case taken as a
whole with respect to any particular Collateral) is accurate and complete in all
material respects.
4.11. Environmental Matters. No Credit Party nor any of its Subsidiaries
nor any of their respective Manufacturing Facilities or operations are subject
to any outstanding written order, consent decree or settlement agreement with
any Person relating to any Environmental Law, any Environmental Claim, or any
Hazardous Materials Activity that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect. No Credit Party nor
any of its Subsidiaries has received any letter or request for information under
Section 104 of the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. Section 9604) or any comparable state law that could
reasonably be expected to have a Material Adverse Effect. There are and, to
each Credit Party's knowledge, have been no conditions, occurrences, or
Hazardous Materials Activities which could reasonably be expected to form the
basis of an Environmental Claim against Company or any of its Subsidiaries that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. Neither Company nor any of its Subsidiaries nor, to
any Credit Party's knowledge, any predecessor of Company or any of its
Subsidiaries has filed any notice under any Environmental Law indicating past or
present treatment of Hazardous Materials at any Manufacturing Facility, and none
of Company's or any of its Subsidiaries' operations involves the treatment,
storage or disposal of hazardous waste, requiring a "TSDF permit"under 40 C.F.R.
Parts 260-270 or any state equivalent, except to the extent that such notice or
activity could not be reasonably expected to have a Material Adverse Effect.
Compliance with all current or reasonably foreseeable future requirements
pursuant to or under Environmental Laws could not be reasonably expected to
have, individually or in the aggregate, a Material Adverse Effect. No event or
condition has occurred or is occurring with respect to Company or any of its
Subsidiaries relating to violations, non-compliance with, or liability under,
any Environmental Law, any Release of Hazardous
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Materials, or any Hazardous Materials Activity which individually or in the
aggregate has had, or could reasonably be expected to have, a Material Adverse
Effect.
4.12. No Defaults; Material Contracts. No Credit Party is in default in
the performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any of its Contractual Obligations, and no condition
exists that, with the giving of notice or the lapse of time or both, could
constitute such a default, except where the consequences, direct or indirect, of
such default or defaults, if any, could not reasonably be expected to have a
Material Adverse Effect. Schedule 4.12 contains a true, correct and complete
list of all the Material Contracts in effect on the Closing Date, and except as
described thereon, all such Material Contracts are in full force and effect and
no defaults currently exist thereunder.
4.13. Governmental Regulation. Neither Company nor any of its
Subsidiaries is subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, the Interstate Commerce Act or the
Investment Company Act of 1940 or under any other federal or state statute or
regulation which may limit its ability to incur Indebtedness or which may
otherwise render all or any portion of the Obligations unenforceable.
4.14. Margin Stock. Neither Company nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any Margin Stock. The
pledge of the Investment Property Collateral pursuant to the Pledge and Security
Agreement does not violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System.
4.15. Employee Matters. There is no strike or work stoppage in existence
or threatened involving Company or any of its Subsidiaries that could reasonably
be expected to have a Material Adverse Effect.
4.16. Employee Benefit Plans. Company, each of its Subsidiaries and each
of their respective ERISA Affiliates are in material compliance with all
applicable provisions and requirements of ERISA and the regulations thereunder
with respect to each Employee Benefit Plan, and have performed all their
material obligations under each Employee Benefit Plan. Each Employee Benefit
Plan which is intended to qualify under Section 401(a) of the Internal Revenue
Code is so qualified. No ERISA Event has occurred or is reasonably expected to
occur. Except to the extent required under Section 4980B of the Internal
Revenue Code, no Employee Benefit Plan provides health or welfare benefits
(through the purchase of insurance or otherwise) for any retired or former
employee of Company, any of its Subsidiaries or any of their respective ERISA
Affiliates if the present value of the unfunded liability of such benefits
exceeds, individually or in the aggregate for all such Employee Benefit Plans,
$2,000,000. As of the most recent valuation date for any Pension Plan, the
amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities), does not exceed $2,000,000. As of the most recent
valuation date for each Multiemployer Plan for which the actuarial report is
available, the potential liability of Holdings, its Subsidiaries and their
respective ERISA Affiliates for a complete withdrawal from such Multiemployer
Plan (within the meaning of Section 4203 of ERISA), when aggregated with such
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potential liability for a complete withdrawal from all Multiemployer Plans,
based on information available pursuant to Section 4221(e) of ERISA, does not
exceed $5,000,000.
4.17. Certain Fees. No broker's or finder's fee or commission will be
payable with respect hereto or any of the transactions contemplated hereby, and
Company hereby indemnifies Lenders against, and agrees that it will hold Lenders
harmless from, any claim, demand or liability for any such broker's or finder's
fees alleged to have been incurred in connection herewith or therewith and any
expenses (including reasonable fees, expenses and disbursements of counsel)
arising in connection with any such claim, demand or liability.
4.18. Solvency. Each Credit Party is and, upon the incurrence of any
Obligation by such Credit Party on any date on which this representation and
warranty is made, will be, Solvent.
4.19. Related Agreements. Company has delivered to Syndication Agent and
Global Agent complete and correct copies of each Related Agreement and of all
exhibits and schedules thereto. Except to the extent otherwise expressly set
forth therein or in the schedules hereto, and subject to the qualifications set
forth therein, each of the representations and warranties (a) given by Seller to
Company, and (b) given by Company to Seller, in each case, in the Acquisition
Agreement is true and correct in all material respects as of the Closing Date
(or as of any earlier date to which such representation and warranty
specifically relates). Notwithstanding anything in the Acquisition Agreement to
the contrary, the representations and warranties of Company set forth in this
Section 4.19 shall, solely for purposes hereof, survive the Closing Date for the
benefit of Lenders.
4.20. Year 2000 Issues. Company and its Subsidiaries have (a) engaged in
a process of assessment of the existence of the Year 2000 Issues reasonably
appropriate to the scope and complexity of their respective Systems; (b) adopted
and are implementing a plan of correction ("Plan of Correction") which Company
reasonably believes will result in a substantial elimination of Year 2000 Issues
before any processing failure of a System or of Systems due to Year 2000 Issues
which might have a Material Adverse Effect, and, in the case of all Systems
critical to the business or operations of Company and its Subsidiaries, a
virtually complete elimination of Year 2000 Issues by September 30, 1999; (c)
adopted and are implementing validation procedures reasonably calculated to test
on an ongoing basis the sufficiency of the Plan of Correction, its
implementation, and the correction of Year 2000 Issues in any System; (d)
adopted and are implementing policies and procedures requiring regular reports
to, and monitoring by, senior management of Company concerning the foregoing
matters; and (e) provided Global Agent true and correct copies of the written
Plan of Correction and related implementation budgets.
4.21. Disclosure. The representations or warranties of the Credit Parties
contained in any Credit Document and in any other document, certificate or
written statement furnished to Lenders by or on behalf of Company or any of its
Subsidiaries for use in connection with the transactions contemplated hereby,
when taken as a whole, do not contain any untrue statement of a material fact
or omit to state a material fact (known to Company, in the case of any document
not furnished thereby) necessary in order to make the statements contained
herein or therein not misleading in light of the circumstances in which the same
were made. Any
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projections and pro forma financial information contained in such materials are
based upon good faith estimates and assumptions believed by Company to be
reasonable at the time made, it being recognized by Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
from the projected results. There are no facts known (or which should upon the
reasonable exercise of diligence be known) to Company (other than matters of a
general economic nature) that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect and that have not
been disclosed herein or in such other documents, certificates and statements
furnished to Lenders for use in connection with the transactions contemplated
hereby.
SECTION 5. AFFIRMATIVE COVENANTS
Each Credit Party covenants and agrees that so long as any Facility
Commitment is in effect and until payment in full of all Obligations, each
Credit Party shall perform, and shall cause each of its Subsidiaries to perform,
all covenants in this Section 5.
5.1. Financial Statements and Other Reports. Company will deliver to
Global Agent and Lenders:
(a) as soon as available and in any event within forty-five (45) days
after the end of each of the first three Fiscal Quarters of each Fiscal Year,
the consolidated balance sheet of Company and its Subsidiaries as at the end of
such Fiscal Quarter and the related consolidated statements of income,
stockholders' equity and cash flows of Company and its Subsidiaries for such
Fiscal Quarter and for the period from the beginning of the then current Fiscal
Year to the end of such Fiscal Quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding periods of the
previous Fiscal Year, all in reasonable detail, together with a Financial
Officer Certification and a Narrative Report with respect thereto;
(b) as soon as available and in any event within ninety (90) days after
the end of each Fiscal Year, (i) the consolidated balance sheet of Company and
its Subsidiaries as at the end of such Fiscal Year and the related consolidated
statements of income, stockholders' equity and cash flows of Company and its
Subsidiaries for such Fiscal Year in reasonable detail, together with a
Financial Officer Certification and a Narrative Report with respect thereto; and
(ii) a report thereon of Ernst & Young LLP or other independent certified public
accountants of recognized national standing selected by Company, together with a
written statement by such independent certified public accountants stating (1)
that their audit examination has included a review of the terms of the Credit
Documents, (2) whether, in connection therewith, any condition or event that
constitutes a Default or an Event of Default has come to their attention and, if
such a condition or event has come to their attention, specifying the nature and
period of existence thereof, and (3) that nothing has come to their attention
that causes them to believe either or both that the information contained in any
Compliance Certificate is not correct or that the matters set forth in such
Compliance Certificate are not stated in accordance with the terms hereof;
(c) together with each delivery of financial statements of Company and
its Subsidiaries pursuant to Sections 5.1(a) and 5.1(b), a duly executed and
completed Compliance Certificate;
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(d) if, as a result of any change in accounting principles and policies
from those used in the preparation of the Historical Financial Statements, the
consolidated financial statements of Company and its Subsidiaries delivered
pursuant to Section 5.1(a), 5.1(b) or 5.1(i) will differ in any material respect
from the consolidated financial statements that would have been delivered
pursuant to such subdivisions had no such change in accounting principles and
policies been made, then together with the first delivery of such financial
statements after such change a statement of reconciliation for all such prior
financial statements in form and substance satisfactory to Requisite Lenders;
(e) promptly upon their becoming available, copies of (i) all financial
statements, reports, notices and proxy statements sent or made available
generally by Company to its Security holders acting in such capacity or by any
Subsidiary of Company to its Security holders other than Company or another
Subsidiary of Company, (ii) all regular and periodic reports and all
registration statements (other than on Form S-8 or a similar form) and
prospectuses, if any, filed by Company or any of its Subsidiaries with any
securities exchange or with the Securities and Exchange Commission or any
governmental or private regulatory authority, and (iii) all press releases and
other statements made available generally by Company or any of its Subsidiaries
to the public concerning material developments in the business of Company or any
of its Subsidiaries;
(f) promptly upon any officer of Company obtaining knowledge (i) of any
condition or event that constitutes a Default or an Event of Default or that
notice has been given to Company by any Lender or Agent with respect thereto;
(ii) that any Person has given any notice to Company or any of its Subsidiaries
or taken any other action with respect to any event or condition set forth in
Section 8.1(b); (iii) of any condition or event of a type required to be
disclosed in a current report on Form 8-K of the Securities and Exchange
Commission (excluding Item 3 as in effect on the date hereof); or (iv) of the
occurrence of any event or change that has caused or evidences, either in any
case or in the aggregate, a Material Adverse Effect, a certificate of its
Authorized Officers specifying the nature and period of existence of such
condition, event or change, or specifying the notice given or action taken by
any such Person and the nature of such claimed Event of Default, Default,
default, event or condition, and what action Company has taken, is taking and
proposes to take with respect thereto;
(g) promptly upon any officer of Company obtaining knowledge of (i) the
institution of, or non-frivolous threat of, any Adverse Proceeding not
previously disclosed in writing by Company to Lenders, or (ii) any material
development in any Adverse Proceeding that, in the case of either (i) or (ii) if
adversely determined, could be reasonably expected to have a Material Adverse
Effect, or seeks to enjoin or otherwise prevent the consummation of, or to
recover any damages or obtain relief as a result of, the transactions
contemplated hereby, written notice thereof together with such other information
as may be reasonably available to Company to enable Lenders and their counsel to
evaluate such matters;
(h) (i) promptly upon becoming aware of the occurrence of any ERISA
Event, a written notice specifying the nature thereof, what action Company, any
of its Subsidiaries or any of their respective ERISA Affiliates has taken, is
taking or proposes to take with respect thereto and, when known, any action
taken or threatened by the Internal Revenue Service, the Department of Labor or
the PBGC with respect thereto; and (ii) upon request of Global Agent
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and with reasonable promptness, copies of (1) each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) filed by Company, any of
its Subsidiaries or any of their respective ERISA Affiliates with the Internal
Revenue Service with respect to each Pension Plan; (2) all notices received by
Company, any of its Subsidiaries or any of their respective ERISA Affiliates
from a Multiemployer Plan sponsor concerning an ERISA Event; and (3) copies of
such other documents or governmental reports or filings relating to any Employee
Benefit Plan as Global Agent shall reasonably request;
(i) at any time either (i) Moody's has assigned to Company's long term
Indebtedness for borrowed money a rating of lower than Baa3, or (ii) S&P has
assigned to Company's long term Indebtedness for borrowed money a rating of
lower than BBB-, as soon as practicable and in any event no later than forty
five (45) days after the beginning of each Fiscal Year, a consolidated plan and
financial forecast for such Fiscal Year (a "Financial Plan"), including a
forecasted consolidated balance sheet and forecasted consolidated statements of
income and cash flows of Company and its Subsidiaries for such Fiscal Year,
together with pro forma Compliance Certificates for such Fiscal Year and an
explanation of the assumptions on which such forecasts are based;
(j) as soon as practicable and in any event by the last day of each
Fiscal Year, a report in form and substance satisfactory to Global Agent
outlining all material insurance coverage maintained as of the date of such
report by Company and its Subsidiaries and all material insurance coverage
planned to be maintained by Company and its Subsidiaries in the immediately
succeeding Fiscal Year;
(k) with reasonable promptness, written notice of any change in the
Board of Directors of Company;
(l) promptly, and in any event within ten (10) Business Days after any
Material Contract of Company or any of its Subsidiaries is terminated or amended
in a manner that is materially adverse to Company or such Subsidiary, as the
case may be, or any new Material Contract is entered into, a written statement
describing such event, with copies of such material amendments or new contracts,
delivered to Global Agent (to the extent such delivery is permitted by the terms
of any such Material Contract, provided, no such prohibition on delivery shall
be effective if it were bargained for by Company or its applicable Subsidiary
with the intent of avoiding compliance with this Section 5.1(l)), and an
explanation of any actions being taken with respect thereto;
(m) promptly, written notice of any change in either Moody's or S&P's
rating for Company's long term Indebtedness; and
(n) with reasonable promptness, such other information and data with
respect to Company or any of its Subsidiaries as from time to time may be
reasonably requested by any Lender.
5.2. Existence. Except as permitted under Section 6.7, each Credit Party
will, and will cause each of its Subsidiaries to, at all times preserve and keep
in full force and effect its existence and all rights and franchises material to
its business; provided, no Credit Party nor any
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of its Subsidiaries shall be required to preserve any such existence, right or
franchise if such Person's Board of Directors (or similar governing body) shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of Company and its Subsidiaries, taken as a whole, and that the
loss thereof is not disadvantageous in any material respect to Company and its
Subsidiaries or Lenders.
5.3. Payment of Taxes and Claims. Each Credit Party will, and will cause
each of its Subsidiaries to, pay all taxes, assessments and other governmental
charges imposed upon it or any of its properties or assets or in respect of any
of its income, businesses or franchises before any penalty accrues thereon, and
all claims (including claims for labor, services, materials and supplies) for
sums that have become due and payable and that by law have or may become a Lien
upon any of its properties or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto; provided, no such charge or claim need
be paid if it is being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted, so long as (a) such reserve or
other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made therefor, and (b) in the case of a charge or claim
which has or may become a Lien against any of the Collateral, such contest
proceedings conclusively operate to stay the sale of any portion of the
Collateral to satisfy such charge or claim. Company will not, nor will it
permit any of its Subsidiaries to, file or consent to the filing of any
consolidated income tax return with any Person (other than Company or any of its
Subsidiaries).
5.4. Maintenance of Properties. Each Credit Party will, and will cause
each of its Subsidiaries to, maintain or cause to be maintained in good repair,
working order and condition, ordinary wear and tear excepted, all material
properties used or useful in the business of Company and its Subsidiaries
(including all material embodiments of Intellectual Property).
5.5. Insurance. Company will maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance, third
party property damage insurance, business interruption insurance and casualty
insurance with respect to liabilities, losses or damage in respect of the
assets, properties and businesses of Company and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by Persons of
established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for such
Persons. Without limiting the generality of the foregoing, Company will
maintain or cause to be maintained (a) flood insurance with respect to each
Flood Hazard Property that is located in a community that participates in the
National Flood Insurance Program, in each case in compliance with any applicable
regulations of the Board of Governors of the Federal Reserve System, and (b)
replacement value casualty insurance on the Collateral under such policies of
insurance, with such insurance companies, in such amounts, with such
deductibles, and covering such risks as are at all times carried or maintained
under similar circumstances by Persons of established reputation engaged in
similar businesses. Each such policy of insurance shall (i) name Global Agent
for the benefit of Lenders as an additional insured thereunder as its interests
may appear and (ii) in the case of any casualty insurance policy, contain a loss
payable clause or endorsement, satisfactory in form and substance to Global
Agent, that names Global Agent for the benefit of Lenders as the loss payee and
provides for at least thirty (30) days prior written notice to Global Agent of
any modification or
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cancellation of such policy; provided, Global Agent shall apply any amounts
received as loss payee pursuant to Section 2.13(b).
5.6. Inspections; Lenders Meetings. Company will, and will cause each of
its Subsidiaries to, permit any authorized representatives designated by any
Lender to visit and inspect any of the properties of Company or of any of its
Subsidiaries, to inspect its and their financial and accounting records, and to
discuss its and their affairs, finances and accounts with its and their officers
and independent public accountants (provided, Company may, if it so chooses, be
present at or participate in any such discussion), all upon reasonable notice to
the chief financial officer, treasurer or the vice president of finance of
Company and at such reasonable times during normal business hours and as often
as may reasonably be requested; provided, Lenders shall use their reasonable
efforts to coordinate with Global Agent in order to minimize the number of such
inspections and discussions. Company will, upon the request of Global Agent or
Requisite Lenders, participate in a meeting of Global Agent and Lenders once
during each Fiscal Year to be held at Company's corporate offices (or at such
other location as may be agreed to by Company and Global Agent) at such time as
may be agreed to by Company and Global Agent.
5.7. Compliance with Laws. Each Credit Party will comply, and shall
cause each of its Subsidiaries and all other Persons, if any, on or occupying
any Manufacturing Facilities to comply, with the requirements of all applicable
laws, rules, regulations and orders of any governmental authority (including all
Environmental Laws), noncompliance with which could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
5.8. Environmental. (a) Environmental Disclosure. Company will deliver
to Global Agent and Lenders:
(i) as soon as practicable following Company's or any of its
Subsidiaries' receipt thereof, copies of all environmental audits,
investigations, analyses and reports with respect to any material
environmental matter at any Manufacturing Facility or with respect to any
Environmental Claim arising after the Closing Date at any Manufacturing
Facility which could reasonably be expected to have a Material Adverse
Effect;
(ii) promptly upon Company or any of its Subsidiaries becoming
aware of the occurrence thereof, written notice describing in reasonable
detail (1) any Release required to be reported to any federal, state or
local governmental or regulatory agency under any applicable Environmental
Laws, and (2) any remedial action taken by Company or any other Person in
response to (A) any Hazardous Materials Activities the existence of which
could be reasonably be expected to result in one or more Environmental
Claims that could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, or (B) any Environmental Claims
that, individually or in the aggregate, have a reasonable possibility of
resulting in a Material Adverse Effect;
(iii) as soon as practicable following the sending or receipt
thereof by Company or any of its Subsidiaries, a copy of any and all
material written communications with any third party with respect to (1)
any Environmental Claims that, individually or in the aggregate, have a
reasonable possibility of giving rise to a Material
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Adverse Effect, (2) any material Release required to be reported to any
federal, state or local governmental or regulatory agency, and (3) any
request for material information from any governmental agency that
suggests such agency is investigating whether Company or any of its
Subsidiaries may be potentially responsible for any Hazardous Materials
Activity;
(iv) prompt written notice describing in reasonable detail (1) any
proposed acquisition of stock, assets, or property by Company or any of
its Subsidiaries that could reasonably be expected to (A) expose Company
or any of its Subsidiaries to, or result in, Environmental Claims that
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect or (B) affect the ability of Company or any of its
Subsidiaries to maintain in full force and effect all material
Governmental Authorizations required under any Environmental Laws for
their respective operations and (2) any proposed action to be taken by
Company or any of its Subsidiaries to modify current operations in a
manner that could reasonably be expected to subject Company or any of its
Subsidiaries to any additional material obligations or requirements under
any Environmental Laws; and
(v) with reasonable promptness, such other documents and
information as from time to time may be reasonably requested by Global
Agent in relation to any matters disclosed pursuant to this Section
5.8(a).
(b) Hazardous Materials Activities, Etc. Each Credit Party shall
promptly take, and shall cause each of its Subsidiaries promptly to take, any
and all actions necessary to (i) cure any violation of applicable Environmental
Laws by such Credit Party or its Subsidiaries that could reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect, and (ii)
make an appropriate response to any Environmental Claim against such Credit
Party or any of its Subsidiaries and discharge any obligations it may have to
any Person thereunder where failure to do so could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
5.9. Subsidiaries. In the event that any Person becomes a Domestic
Subsidiary of Company, Company shall promptly take all applicable actions and
execute and deliver all applicable documents, instruments, agreements, and
certificates similar to those described in Sections 3.1(b) and 3.1(i) with
respect to such Domestic Subsidiary, and Company shall cause such Domestic
Subsidiary to become a Guarantor hereunder and a Grantor under the Pledge and
Security Agreement by executing and delivering to Global Agent a Counterpart
Agreement, and to take all such actions and execute and deliver, or cause to be
executed and delivered, all such documents, instruments, agreements, and
certificates similar to those described in Sections 3.1(b), 3.1(i) and 3.1(j).
In the event that any Person becomes a Foreign Subsidiary of Company, and the
ownership interests of such Foreign Subsidiary are owned by Company or by any
Domestic Subsidiary thereof, Company shall, or shall cause such Domestic
Subsidiary to, deliver, all such documents, instruments, agreements, and
certificates similar to those described in Sections 3.1(b), and Company shall
take, or shall cause such Domestic Subsidiary to take, all of the actions
referred to in Section 3.1(j)(i) necessary to grant and to perfect a First
Priority Lien in favor of Global Agent, for the benefit of Lenders, under the
Pledge and Security Agreement in such ownership interests. With respect to each
such Subsidiary, Company shall promptly send to
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Global Agent written notice setting forth with respect to such Person (i) the
date on which such Person became a Subsidiary of Company, and (ii) all of the
data required to be set forth in Schedule 4.1 with respect to all Subsidiaries
of Company; provided, such written notice shall be deemed to supplement Schedule
4.1 for all purposes hereof.
5.10. Material Real Estate Assets. In the event that any Credit Party
acquires an interest in any Material Real Estate Asset and such interest has not
otherwise been made subject to the First Priority Lien of the Collateral
Documents in favor of Global Agent for the benefit of Lenders, then, unless
Requisite Lenders shall have previously waived such Credit Party's compliance
with this Section 5.10 with respect to such Material Real Estate Asset, such
Credit Party, contemporaneously with acquiring such Material Real Estate Asset,
shall take all such actions and execute and deliver, or cause to be executed and
delivered, all such documents, instruments, agreements, opinions, reports, and
certificates similar to those described in Sections 3.1(i), 3.1(j) and 3.1(k)
with respect to each such Material Real Estate Asset. In addition to the
foregoing, Company shall, at the request of Requisite Lenders, deliver, from
time to time, to Global Agent appraisals as are required by law or regulation of
Real Estate Assets on which Requisite Lenders have a Lien.
5.11. Interest Rate Protection. At all times after the date which is
ninety (90) days after the Closing Date, Company shall maintain, or caused to be
maintained, in effect one or more Interest Rate Agreements for a notional amount
equal to at least 50% of the outstanding aggregate principal amount of the Term
Loans and the Multicurrency Facility Loans and for a term of not less than
three years from the Closing Date and otherwise in form and substance reasonably
satisfactory to Global Agent.
5.12. Year 2000 Issues. Company shall periodically report to Global
Agent, and Global Agent shall promptly deliver each such report to each Lender,
in such form as Global Agent may reasonably request, on the progress of Company
and its Subsidiaries in implementing the Plan of Correction; the budget for, and
actual costs with respect to, implementation of the Plan of Correction and the
assessment of Company, any senior manager of Company or any Subsidiary, of the
adequacy of the Plan of Correction or the related implementation budget.
SECTION 6. NEGATIVE COVENANTS
Each Credit Party covenants and agrees that, so long as any Commitment is
in effect and until payment in full of all Obligations, such Credit Party shall
perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 6.
6.1. Indebtedness. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or
otherwise become or remain directly or indirectly liable with respect to any
Indebtedness, except:
(a) the Obligations;
(b) Indebtedness of any of Company's Wholly-Owned Subsidiaries to
Company or to any of Company's other Wholly-Owned Subsidiaries, or of Company to
any Wholly-Owned Subsidiary; provided, (i) with respect to any such Indebtedness
other than Indebtedness of a
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Wholly-Owned Foreign Subsidiary, all such inter company Indebtedness shall be
evidenced by promissory notes and all such notes shall be subject to the
perfected First Priority Lien of the Pledge and Security Agreement, (ii) all
such inter company Indebtedness owed by Company to any such Subsidiary shall be
subordinated in right of payment to the payment in full of the Obligations
pursuant to the terms of the applicable promissory notes or an inter company
subordination agreement, and (iii) with respect to any such Indebtedness other
than Indebtedness of a Wholly-Owned Foreign Subsidiary, any payment by any
Subsidiary of Company under any guaranty of the Obligations shall result in a
pro tanto reduction of the amount of any inter company Indebtedness owed by such
Subsidiary to Company or to any of its Subsidiaries for whose benefit such
payment is made; provided, the foregoing clauses (i), (ii) and (iii) shall not
apply to any Purchase Money Note;
(c) Indebtedness incurred by Company or any of its Subsidiaries arising
from agreements providing for indemnification, adjustment of purchase price or
similar obligations, or from guaranties or letters of credit, surety bonds or
performance bonds securing the performance of Company or any such Subsidiary
pursuant to such agreements, in connection with acquisitions or dispositions of
any business, assets or Subsidiary of Company or any of its Subsidiaries;
(d) Indebtedness owed to any Person (including obligations in respect of
Letters of Credit for the benefit of such Person) providing worker's
compensation, health, disability or other employee benefits or property,
casualty or liability insurance to Company or any Subsidiary thereof, or which
may be deemed to exist pursuant to reimbursement or indemnification obligations
to such Person;
(e) Indebtedness which may be deemed to exist pursuant to any
guaranties, performance, surety, statutory, appeal or similar obligations
incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections
and otherwise in connection with Deposit Accounts;
(g) guaranties in the ordinary course of business of the obligations of
suppliers, customers, franchisees and licensees of Company and its Subsidiaries;
(h) guaranties by Company of Indebtedness of its Subsidiaries or
guaranties by a Subsidiary of Company of Indebtedness of Company or another
Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be
incurred pursuant to this Section 6.1;
(i) Indebtedness of a Securitization Entity in a Permitted
Securitization Transaction that is Non-Recourse Debt (except for Standard
Securitization Undertakings) with respect to Company and its Subsidiaries;
(j) Indebtedness described in Schedule 6.1, but not any extensions,
renewals or replacements of such Indebtedness except (i) renewals and extensions
expressly provided for in the agreements evidencing any such Indebtedness as the
same are in effect on the date of this Agreement and (ii) refinancings and
extensions of any such Indebtedness if the terms thereof are no less favorable
to the obligor thereon or to the Lenders than the Indebtedness being refinanced
or extended and the average life to maturity thereof is greater than or equal to
that of the
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Indebtedness being refinanced or extended; provided, such Indebtedness permitted
under clause (i) or clause (ii) above shall not be (1) Indebtedness of an
obligor that was not an obligor with respect to the Indebtedness being extended,
renewed or refinanced, (2) in a principal amount which exceeds the Indebtedness
being renewed, extended or refinanced or (3) incurred, created or assumed if any
Default or Event of Default has occurred and is continuing or would result
therefrom;
(k) Indebtedness with respect to Capital Leases in an aggregate amount
not to exceed at any time $25,000,000;
(l) purchase money Indebtedness in an aggregate amount not to exceed at
any time $15,000,000 (including any Indebtedness acquired in connection with a
Permitted Acquisition or incurred in connection with the development of any Real
Estate Asset, including the construction of improvements thereon); provided, any
such Indebtedness (i) shall be recourse only to the asset acquired in connection
with the incurrence of such Indebtedness, and (ii) shall constitute not less
than 25% of the aggregate consideration paid with respect to such asset; and
(m) other Indebtedness in an aggregate amount not to exceed at any time
$50,000,000; provided, at any time the Reduced Leverage/Improved Ratings Status
is in effect, the foregoing amount of such Indebtedness shall be $100,000,000;
provided, further, if at any time the Reduced Leverage/Improved Ratings Status
ceases to be satisfied, any amount of Indebtedness then outstanding otherwise
permitted pursuant to this Section 6.1(m) in excess of $50,000,000 shall not be
deemed to be in contravention of this Section 6.1(m), but in no event shall
Company and its Subsidiaries incur any additional Indebtedness pursuant to this
Section 6.1(m) in excess of $50,000,000 until the Reduced Leverage/Improved
Ratings Status is at such time of such incurrence satisfied.
6.2. Liens. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Company or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the UCC of any state or under any similar recording or notice
statute, except:
(a) Liens in favor of Global Agent for the benefit of Lenders granted
pursuant to any Credit Document;
(b) Liens for taxes, assessments or governmental charges or claims with
respect to which Company or its Subsidiaries are taking each of the actions
required pursuant to Section 5.3;
(c) statutory Liens of landlords, banks (and rights of set-off), of
carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other
Liens imposed by law, in each case incurred in the ordinary course of business
(i) for amounts not yet overdue or (ii) for amounts that are overdue and that
(in the case of any such amounts overdue for a period
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in excess of five days) are being contested in good faith by appropriate
proceedings, so long as such reserves or other appropriate provisions, if any,
as shall be required by GAAP shall have been made for any such contested
amounts;
(d) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other types
of social security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts, trade
contracts, performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money), so long as no
foreclosure, sale or similar proceedings have been commenced with respect to any
portion of the Collateral on account thereof;
(e) easements, rights-of-way, restrictions, encroachments, imperfections
and other minor defects or irregularities in title, which, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect;
(f) any (i) interest or title of a lessor or sublessor under any lease
permitted hereunder, (ii) restriction or encumbrance that the interest or title
of such lessor or sublessor may be subject to, or (iii) subordination of the
interest of the lessee or sublessee under such lease to any restriction or
encumbrance referred to in the preceding clause (ii);
(g) Liens solely on any Cash earnest money deposits made by Company or
any of its Subsidiaries in connection with any letter of intent or purchase
agreement entered into by it;
(h) Liens incurred in connection with the purchase or shipping of goods
or assets on the related assets and proceeds thereof in favor of the seller or
shipper of such goods or assets.
(i) Liens arising from filing UCC financing statements relating solely
to leases permitted hereunder;
(j) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(k) any zoning or similar law or right reserved to or vested in any
governmental office or agency to control or regulate the use of any real
property;
(l) Liens securing obligations (other than obligations representing
Indebtedness for borrowed money) under operating, reciprocal easement or similar
agreements entered into in the ordinary course of business of Company and its
Subsidiaries;
(m) licenses of patents, trademarks and other intellectual property
rights granted by Company or any of its Subsidiaries in the ordinary course of
business and not interfering in any material respect with the ordinary conduct
of the business of Company or such Subsidiary;
(n) judgment liens not constituting an Event of Default pursuant to
Section 8.1(h);
(o) Liens described in Schedule 6.2 or on a title report delivered
pursuant to Section 3.1(i)(iv); and
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(p) Liens on assets of a Securitization Entity and Liens securing
Indebtedness permitted pursuant to Section 6.1(b), 6.1(i) and/or 6.1(l);
provided, in the case of Indebtedness permitted by Section 6.1(l), any Lien
permitted hereby shall encumber only the asset acquired with the proceeds of
such Indebtedness;
(q) other Liens securing Indebtedness in an aggregate amount not to
exceed $25,000,000 at any time outstanding; and
(r) any extension or replacement of any of the foregoing in accordance
with the terms thereof;
provided, (i) any Lien imposed pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or by ERISA, (ii) any Lien relating to or imposed in
connection with any Environmental Claim, and (iii) any Lien expressly prohibited
by any applicable term of any Credit Document, in each case is expressly
prohibited hereunder.
6.3. Equitable Lien; No Further Negative Pledges. If any Credit Party or
any of its Subsidiaries shall create or assume any Lien upon any of its
properties or assets, whether now owned or hereafter acquired, other than
Permitted Liens, it shall make or cause to be made effective provision whereby
the Obligations will be secured by such Lien equally and ratably with any and
all other Indebtedness secured thereby as long as any such Indebtedness shall be
so secured; provided, notwithstanding the foregoing, this covenant shall not be
construed as a consent by Requisite Lenders to the creation or assumption of any
such Lien not otherwise permitted hereby. Except with respect to (a) specific
property encumbered to secure payment of particular Indebtedness or to be sold
pursuant to an executed agreement with respect to an Asset Sale, or (b) any
agreement prohibiting only the creation of Liens securing Subordinated
Indebtedness, no Credit Party nor any of its Subsidiaries shall enter into any
agreement prohibiting the creation or assumption of any Lien upon any of its
properties or assets, whether now owned or hereafter acquired.
6.4. Restricted Payments; Restrictions on Subsidiary Distributions. (a)
Company shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, declare, order, pay, make or set apart any sum for any Restricted
Junior Payment except (i) Company may pay a dividend on its common stock in an
aggregate amount not to exceed $0.13 per share to be paid in Fiscal Year 1999,
and for each Fiscal Year thereafter, an amount equal to $0.02 per share in
addition to the amount of such dividend per share permitted to be paid in the
immediately preceding Fiscal Year (regardless of whether actually paid);
provided, immediately prior to the declaration thereof, and after giving effect
to the payment of, any such dividend, (1) no Event of Default has occurred and
is continuing, and (2) Company is in compliance with Section 6.6, and (ii)
Company may make regularly scheduled payments of interest in respect of any
Subordinated Indebtedness in accordance with the terms of, and only to the
extent required by, and subject to the subordination provisions contained in,
the indenture or other agreement pursuant to which such Subordinated
Indebtedness was issued, as such indenture or other agreement may be amended
from time to time to the extent permitted under Section 6.13.
(b) Except as provided herein, in any Purchase Money Note, or other
Indebtedness or other contractual requirements of a Securitization Entity in
connection with a Permitted
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Securitization Transaction (provided, such restrictions apply only to such
Securitization Entity) Company will not, and will not permit any of its
Subsidiaries to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any such Subsidiary to (i) pay dividends or make any other distributions on
any of such Subsidiary's capital stock owned by Company or any other Subsidiary
of Company, (ii) repay or prepay any Indebtedness owed by such Subsidiary to
Company or any other Subsidiary of Company, (iii) make loans or advances to
Company or any other Subsidiary of Company, or (iv) transfer any of its property
or assets to Company or any other Subsidiary of Company.
6.5. Investments. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, make or own any Investment in any
Person, including any Joint Venture, except:
(a) Cash Equivalents;
(b) Investments acquired or made in any transaction contemplated by the
Acquisition Agreement or Investments owned as of the Closing Date in any
Subsidiary of Company;
(c) Investments (i) in accounts receivable arising and trade credit
granted in the ordinary course of business and in any Securities received in
satisfaction or partial satisfaction thereof from financially troubled account
debtors and (ii) prepayments and other credits to suppliers made in the ordinary
course of business consistent with the past practices of Company and its
Subsidiaries;
(d) inter company loans to the extent permitted under Section 6.1(b) or
6.1(c);
(e) Consolidated Capital Expenditures permitted by Section 6.6(d);
(f) Hedge Agreements with any Lender Counterparty;
(g) loans to employees of Company and its Subsidiaries in an aggregate
principal amount not to exceed $5,000,000 in the aggregate;
(h) any Investment by Company or a Subsidiary of Company in a
Securitization Entity or any Investment by a Securitization Entity in any other
Person in connection with a Permitted Securitization Transaction; provided, any
Investment in a Securitization Entity is in the form of a Purchase Money Note or
equity Securities;
(i) Investments made in connection with Permitted Acquisitions permitted
pursuant to Section 6.7(h);
(j) Investments made to acquire equity interests in any less than
Wholly-Owned Subsidiaries of Company from third parties which equity interests
are purchased solely in shares of Company's common stock;
(k) Investments described in Schedule 6.5; and
(l) other Investments in an aggregate amount not to exceed at any time
$50,000,000.
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6.6. Financial Covenants.
(a) Fixed Charge Coverage Ratio. Company shall not permit the Fixed
Charge Coverage Ratio as of the last day of any Fiscal Quarter (which last day
occurs in any Fiscal Year set forth below), beginning with the Fiscal Quarter
ending March 31, 1999, to be less than the correlative ratio indicated:
Fiscal Fixed Charge
Year Coverage Ratio
1999 1.30:1.00
2000 1.35:1.00
2001 1.40:1.00
2002 1.45:1.00
2003 1.50:1.00
2004 1.50:1.00
2005 1.50:1.00
2006 1.50:1.00
(b) Leverage Ratio. Company shall not permit the Leverage Ratio as of
the last day of any Fiscal Quarter (which last day occurs in any Fiscal Year set
forth below), beginning with the Fiscal Quarter ending March 31, 1999, to exceed
the correlative ratio indicated:
Fiscal Year Leverage Ratio
1999 4.25:1.00
2000 3.75:1.00
2001 3.25:1.00
2002 3.00:1.00
2003 3.00:1.00
2004 3.00:1.00
2005 3.00:1.00
2006 3.00:1.00
(c) Consolidated Net Worth. Company shall not permit Consolidated Net
Worth as of the last day of any Fiscal Quarter, beginning with the Fiscal
Quarter ending March 31, 1999, to be less than an amount equal to the sum of the
following:
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(i) the greater of (1) 85% of combined Consolidated Net Worth of
Company and its Subsidiaries and Target and its Subsidiaries determined on
a pro forma basis as of the Closing Date and after giving effect to the
Acquisition and charges incurred as of the Closing Date related to the
Acquisition as described in clauses (i)(f) and (i)(g) of the definition of
Consolidated Adjusted EBITDA (the "Acquisition Charges"), minus 85% of
Acquisition Charges actually incurred between the Closing Date and
December 31, 1999, and (2) $425,000,000;
(ii) 50% of cumulative Consolidated Net Income after payment of
dividends pursuant to Section 6.4(i) from January 1, 1999 to and including
the date of determination; provided, if any amount as calculated for
purposes of this clause (ii) shall be less than zero, the applicable
amount for this clause (ii) shall be zero; and
(iii) 50% of the cumulative net proceeds of all equity Securities
issued by Company and its Subsidiaries (other than to Company or any
Wholly-Owned Subsidiary) from the Closing Date to and including the date
of determination.
(d) Maximum Consolidated Capital Expenditures. Company shall not, and
shall not permit its Subsidiaries to, make or incur Consolidated Capital
Expenditures, in any Fiscal Year indicated below, in an aggregate amount in
excess of the corresponding amount set forth below opposite such Fiscal Year;
provided, such amount for any Fiscal Year shall be increased by an amount equal
to the excess, if any, (but in no event more than $50,000,000) of such amount
for the previous Fiscal Year (as adjusted in accordance with this proviso) over
the actual amount of Consolidated Capital Expenditures for such previous Fiscal
Year:
Fiscal Consolidated
Year Capital Expenditures
1999 $200,000,000
2000 $210,000,000
2001 $220,000,000
2002 $235,000,000
2003 $250,000,000
2004 $270,000,000
2005 $290,000,000
2006 $310,000,000
(e) Certain Calculations. With respect to any period during which the
Acquisition, a Permitted Acquisition or Asset Sale has occurred (each, a
"Subject Transaction"), for purposes of determining compliance with the
financial covenants set forth in this Section 6.6, Consolidated Adjusted EBITDA
and the components of Consolidated Fixed Charges shall be calculated with
respect to such period on a pro forma basis (without giving effect to
adjustments to increase Consolidated Adjusted EBITDA to account for expected
improvements in the operations of the Permitted Acquisition unless otherwise as
set forth herein or as approved in
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writing by the Requisite Lenders and which pro forma adjustments shall be
certified by the principal financial officer or principal accounting officer of
Company) using the historical financial statements of any business so acquired
or to be acquired or sold or to be sold and the consolidated financial
statements of Company and its Subsidiaries which shall be reformulated as if
such Subject Transaction, and any Indebtedness incurred or repaid in connection
therewith had been consummated or incurred or repaid at the beginning of such
period (and assuming that such Indebtedness bears interest during any portion of
the applicable measurement period prior to the relevant acquisition at the
weighted average of the interest rates applicable to outstanding Loans incurred
during such period); provided, expenses reported as corporate and division
overhead costs in the combined financial statements of the Target shall be
excluded from Consolidated Adjusted EBITDA.
6.7. Fundamental Changes; Disposition of Assets; Acquisitions. Company
shall not, and shall not permit any of its Subsidiaries to, alter the corporate,
capital or legal structure of Company or any of its Subsidiaries if any such
alteration could reasonably be expected to have a Material Adverse Effect, or
enter into any transaction of merger or consolidation, or liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of,
in one transaction or a series of transactions, all or any part of its business,
property or assets, whether now owned or hereafter acquired, or acquire by
purchase or otherwise all or substantially all the business, property or fixed
assets of, or stock or other evidence of beneficial ownership of, any Person or
any division or line of business of any Person, except:
(a) any Domestic Subsidiary of Company may be merged with or into
Company or any Wholly-Owned Domestic Subsidiary, or be liquidated, wound up or
dissolved, or all or any part of its business, property or assets may be
conveyed, sold, leased, transferred or otherwise disposed of, in one transaction
or a series of transactions, to Company or any Wholly-Owned Domestic Subsidiary;
provided, in the case of such a merger, Company or such Wholly-Owned Domestic
Subsidiary shall be the continuing or surviving Person;
(b) any Foreign Subsidiary of Company may be merged with or into Company
or any Wholly-Owned Foreign Subsidiary, or be liquidated, wound up or dissolved,
or all or any part of its business, property or assets may be conveyed, sold,
leased, transferred or otherwise disposed of, in one transaction or a series of
transactions, to Company or any Wholly-Owned Foreign Subsidiary; provided, in
the case of such a merger, Company or such Wholly-Owned Foreign Subsidiary shall
be the continuing or surviving corporation;
(c) liquidation of Cash Equivalents in the ordinary course of business;
(d) sales of assets which do not constitute Asset Sales;
(e) leases or subleases to other Persons of assets by Company or any
Subsidiary thereof in the ordinary course of business as conducted thereby on
the Closing Date;
(f) licenses to other Persons of Intellectual Property by Company or any
Subsidiary thereof in the ordinary course of business as conducted thereby on
the Closing Date;
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(g) Asset Sales constituting (i) in any Fiscal Year, 10% or less of the
gross book value, as determined in accordance with GAAP, of the Consolidated
Assets determined as of the Fiscal Quarter immediately preceding the Fiscal
Quarter in which such Asset Sale occurs, and (ii) from the Closing Date to the
date of determination, less than $500,000,000 in the aggregate;
(h) Permitted Acquisitions; provided, at any time the Reduced
Leverage/Improved Ratings Status is not in effect, Permitted Acquisitions shall
be permitted only if (i) the aggregate cash consideration (including the
incurrence or assumption of any Indebtedness in connection therewith) with
respect thereto does not exceed $50,000,000 in any Fiscal Year and $100,000,000
during the term of this Agreement, and (ii) the aggregate consideration with
respect thereto in the form of equity Securities of Company does not exceed
$250,000,000 in any Fiscal Year; provided further, (1) unused amounts in (i) and
(ii) above may be carried over to succeeding years, (2) with respect to all
Permitted Acquisitions by or of a Foreign Subsidiary, the consideration referred
to in each of clauses (i) and (ii) shall not exceed 50% of the amount stated
therein, and (3) for the purposes of this Section 6.7(h), Fiscal 1999 shall be
measured from the Closing Date through December 31, 1999;
(i) transactions described in the Acquisition Agreement; and
(j) transactions permitted under Section 6.5.
6.8. Disposal of Subsidiary Interests. Except as permitted under the
Collateral Documents and except for any sale of 100% of the equity Securities of
any of its Subsidiaries in compliance with the provisions of Section 6.7(a),
6.7(b) or 6.7(g), Company shall not (a) directly or indirectly sell, assign,
pledge or otherwise encumber or dispose of any equity Securities of any of its
Subsidiaries, except to qualify directors if required by applicable law; or (b)
permit any of its Subsidiaries directly or indirectly to sell, assign, pledge or
otherwise encumber or dispose of any equity Securities of any of its
Subsidiaries (including such Subsidiary), except to Company, a Wholly-Owned
Subsidiary of Company (subject to the restrictions on such disposition otherwise
imposed herein under), or to qualify directors if required by applicable law.
6.9. Sales and Lease-Backs. No Credit Party shall, nor shall it permit
any of its Subsidiaries to, directly or indirectly, become or remain liable as
lessee or as a guarantor or other surety with respect to any lease of any
property (whether real, personal or mixed), whether now owned or hereafter
acquired, which Company or any of its Subsidiaries (a) has sold or transferred
or is to sell or to transfer to any other Person (other than Company or any of
its Subsidiaries), or (b) intends to use for substantially the same purpose as
any other property which has been or is to be sold or transferred by Company or
any of its Subsidiaries to any Person (other than Company or any of its
Subsidiaries) in connection with such lease.
6.10. Sale or Discount of Receivables. No Credit Party shall, nor shall
it permit any of its Subsidiaries to, directly or indirectly, sell with
recourse, or discount or otherwise sell for less than the face value thereof,
any of its notes or accounts receivable, other than in connection with a
Permitted Securitization Transaction and as described on Schedule 6.10.
6.11. Transactions with Shareholders and Affiliates. No Credit Party
shall, nor shall it permit any of its Subsidiaries to, directly or indirectly,
enter into or permit to exist any
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transaction (including the purchase, sale, lease or exchange of any property or
the rendering of any service) with any holder of 5% or more of any class of
equity Securities of Company or with any Affiliate of Company or of any such
holder, on terms that are less favorable to Company or that Subsidiary, as the
case may be, than those that might be obtained at the time from Persons who are
not such a holder or Affiliate; provided, the foregoing restriction shall not
apply to (a) any transaction between Company and any of its Wholly-Owned
Subsidiaries or between any of its Wholly-Owned Subsidiaries, (b) reasonable and
customary fees paid to members of the Boards of Directors of Company and its
Subsidiaries, (c) transactions effected as part of a Permitted Securitization
Transaction, or (d) officer and other employee of Company and its Subsidiaries
compensation arrangements entered into in the ordinary course of business.
6.12. Conduct of Business. From and after the Closing Date, no Credit
Party shall, nor shall it permit any of its Subsidiaries to, engage in any
business other than the medical device or medical product manufacturing,
distribution, and/or sales business or such other lines of business in which
Company and/or its Subsidiaries are engaged as of the Closing Date or as
otherwise referred to in clause (vi) of the definition of Permitted
Acquisitions.
6.13. Amendments or Waivers of Certain Agreements. (a) Neither Company nor
any of its Subsidiaries will agree to any material amendment to, or waive any of
its material rights under, any Related Agreement after the Closing Date.
(b) Company shall not, and shall not permit any of its Subsidiaries to,
amend or otherwise change the terms of any Subordinated Indebtedness, or make
any payment consistent with an amendment thereof or change thereto, if the
effect of such amendment or change is to increase the interest rate on such
Subordinated Indebtedness, change (to earlier dates) any dates upon which
payments of principal or interest are due thereon, change any event of default
or condition to an event of default with respect thereto (other than to
eliminate any such event of default or increase any grace period related
thereto), change the redemption, prepayment or defeasance provisions thereof,
change the subordination provisions of such Subordinated Indebtedness (or of any
guaranty thereof), or change any collateral therefor (other than to release such
collateral), or if the effect of such amendment or change, together with all
other amendments or changes made, is to increase materially the obligations of
the obligor thereunder or to confer any additional rights on the holders of such
Subordinated Indebtedness (or a trustee or other representative on their behalf)
which would be adverse to Company or Lenders.
6.14. Fiscal Year. Company shall not change its Fiscal Year-end from
December 31.
SECTION 7. GUARANTY
7.1. Guaranty of the Obligations. Subject to the provisions of Section
7.2, Guarantors jointly and severally hereby irrevocably and unconditionally
guaranty the due and punctual payment in full of all Obligations when the same
shall become due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including amounts that would
become due but for the operation of the automatic stay under Section 362(a) of
the Bankruptcy Code, 11 U.S.C. Section 362(a)).
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7.2. Contribution by Guarantors. Guarantors desire to allocate among
themselves (collectively, the "Contributing Guarantors"), in a fair and
equitable manner, their obligations arising under this Guaranty. Accordingly,
in the event any payment or distribution is made on any date by a Guarantor
under this Guaranty (a "Funding Guarantor") that exceeds its Fair Share as of
such date, that Funding Guarantor shall be entitled to a contribution from each
of the other Contributing Guarantors in the amount of such other Contributing
Guarantor's Fair Share Shortfall as of such date, with the result that all such
contributions will cause each Contributing Guarantor's Aggregate Payments to
equal its Fair Share as of such date. "Fair Share" means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to (a)
the ratio of (i) the Fair Share Contribution Amount with respect to such
Contributing Guarantor to (ii) the aggregate of the Fair Share Contribution
Amounts with respect to all Contributing Guarantors multiplied by (b) the
aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Guaranty in respect of the obligations guarantied. "Fair
Share Shortfall" means, with respect to a Contributing Guarantor as of any date
of determination, the excess, if any, of the Fair Share of such Contributing
Guarantor over the Aggregate Payments of such Contributing Guarantor. "Fair
Share Contribution Amount" means, with respect to a Contributing Guarantor as of
any date of determination, the maximum aggregate amount of the Obligations of
such Contributing Guarantor under this Guaranty that would not render its
obligations hereunder subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of Title 11 of the United States Code or any
applicable provisions of comparable state law; provided, solely for purposes of
calculating the "Fair Share Contribution Amount" with respect to any
Contributing Guarantor for purposes of this Section 7.2, any assets or
liabilities of such Contributing Guarantor arising by virtue of any rights to
subrogation, reimbursement or indemnification or any rights to or obligations of
contribution hereunder shall not be considered as assets or liabilities of such
Contributing Guarantor. "Aggregate Payments" means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to (1)
the aggregate amount of all payments and distributions made on or before such
date by such Contributing Guarantor in respect of this Guaranty (including,
without limitation, in respect of this Section 7.2), minus (2) the aggregate
amount of all payments received on or before such date by such Contributing
Guarantor from the other Contributing Guarantors as contributions under this
Section 7.2. The amounts payable as contributions hereunder shall be determined
as of the date on which the related payment or distribution is made by the
applicable Funding Guarantor. The allocation among Contributing Guarantors of
their obligations as set forth in this Section 7.2 shall not be construed in any
way to limit the liability of any Contributing Guarantor hereunder. Each
Guarantor is a third party beneficiary to the contribution agreement set forth
in this Section 7.2.
7.3. Payment by Guarantors. Subject to Section 7.2, Guarantors hereby
jointly and severally agree, in furtherance of the foregoing and not in
limitation of any other right which any Beneficiary may have at law or in equity
against any Guarantor by virtue hereof, that upon the failure of Company to pay
any of the Obligations when and as the same shall become due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or otherwise
(including amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a)),
Guarantors will upon demand pay, or cause to be paid, in Cash, to Global Agent
for the ratable benefit of Beneficiaries, an amount equal to the sum of the
unpaid principal amount of all Obligations then due as aforesaid, accrued and
unpaid interest on such Obligations (including interest which, but
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for the filing of a petition in bankruptcy with respect to Company, would have
accrued on such Obligations, whether or not a claim is allowed against Company
for such interest in the related bankruptcy proceeding) and all other
Obligations then owed to Beneficiaries as aforesaid.
7.4. Liability of Guarantors Absolute. Each Guarantor agrees that its
obligations hereunder are irrevocable, absolute, independent and unconditional
and shall not be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than payment in full of the
Obligations. In furtherance of the foregoing and without limiting the
generality thereof, each Guarantor agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of
collectibility;
(b) Global Agent may enforce this Guaranty upon the occurrence of an
Event of Default notwithstanding the existence of any dispute between Company
and any Beneficiary with respect to the existence of such Event of Default;
(c) the obligations of each Guarantor hereunder are independent of the
obligations of Company and the obligations of any other guarantor (including any
other Guarantor) of the obligations of Company, and a separate action or actions
may be brought and prosecuted against such Guarantor whether or not any action
is brought against Company or any of such other guarantors and whether or not
Company is joined in any such action or actions;
(d) payment by any Guarantor of a portion, but not all, of the
Obligations shall in no way limit, affect, modify or abridge any Guarantor's
liability for any portion of the Obligations which has not been paid. Without
limiting the generality of the foregoing, if Global Agent is awarded a judgment
in any suit brought to enforce any Guarantor's covenant to pay a portion of the
Obligations, such judgment shall not be deemed to release such Guarantor from
its covenant to pay the portion of the Obligations that is not the subject of
such suit, and such judgment shall not, except to the extent satisfied by such
Guarantor, limit, affect, modify or abridge any other Guarantor's liability
hereunder in respect of the Obligations;
(e) any Beneficiary, upon such terms as it deems appropriate, without
notice or demand and without affecting the validity or enforceability hereof or
giving rise to any reduction, limitation, impairment, discharge or termination
of any Guarantor's liability hereunder, from time to time may (i) renew, extend,
accelerate, increase the rate of interest on, or otherwise change the time,
place, manner or terms of payment of the Obligations; (ii) settle, compromise,
release or discharge, or accept or refuse any offer of performance with respect
to, or substitutions for, the Obligations or any agreement relating thereto
and/or subordinate the payment of the same to the payment of any other
obligations; (iii) request and accept other guaranties of the Obligations and
take and hold security for the payment hereof or the Obligations; (iv) release,
surrender, exchange, substitute, compromise, settle, rescind, waive, alter,
subordinate or modify, with or without consideration, any security for payment
of the Obligations, any other guaranties of the Obligations, or any other
obligation of any Person (including any other Guarantor) with respect to the
Obligations; (v) enforce and apply any security now or hereafter held by or for
the benefit of such Beneficiary in respect hereof or the Obligations and direct
the order or manner of sale thereof, or exercise any other right or remedy that
such Beneficiary may have against any such security, in each case as such
Beneficiary in its
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discretion may determine consistent herewith or the applicable Hedge Agreement
and any applicable security agreement, including foreclosure on any such
security pursuant to one or more judicial or nonjudicial sales, whether or not
every aspect of any such sale is commercially reasonable, and even though such
action operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of any Guarantor against Company or any
security for the Obligations; and (vi) exercise any other rights available to it
under the Credit Documents or the Hedge Agreements; and
(f) this Guaranty and the obligations of Guarantors hereunder shall be
valid and enforceable and shall not be subject to any reduction, limitation,
impairment, discharge or termination for any reason (other than payment in full
of the Obligations), including the occurrence of any of the following, whether
or not any Guarantor shall have had notice or knowledge of any of them: (i) any
failure or omission to assert or enforce or agreement or election not to assert
or enforce, or the stay or enjoining, by order of court, by operation of law or
otherwise, of the exercise or enforcement of, any claim or demand or any right,
power or remedy (whether arising under the Credit Documents or the Hedge
Agreements, at law, in equity or otherwise) with respect to the Obligations or
any agreement relating thereto, or with respect to any other guaranty of or
security for the payment of the Obligations; (ii) any rescission, waiver,
amendment or modification of, or any consent to departure from, any of the terms
or provisions (including provisions relating to events of default) hereof, any
of the other Credit Documents, any of the Hedge Agreements or any agreement or
instrument executed pursuant thereto, or of any other guaranty or security for
the Obligations, in each case whether or not in accordance with the terms hereof
or such Credit Document, such Hedge Agreement or any agreement relating to such
other guaranty or security; (iii) the Obligations, or any agreement relating
thereto, at any time being found to be illegal, invalid or unenforceable in any
respect; (iv) the application of payments received from any source (other than
payments received pursuant to the other Credit Documents or any of the Hedge
Agreements or from the proceeds of any security for the Obligations, except to
the extent such security also serves as collateral for indebtedness other than
the Obligations) to the payment of indebtedness other than the Obligations, even
though any Beneficiary might have elected to apply such payment to any part or
all of the Obligations; (v) any Beneficiary's consent to the change,
reorganization or termination of the corporate structure or existence of Company
or any of its Subsidiaries and to any corresponding restructuring of the
Obligations; (vi) any failure to perfect or continue perfection of a security
interest in any collateral which secures any of the Obligations; (vii) any
defenses, set-offs or counterclaims which Company may allege or assert against
any Beneficiary in respect of the Obligations, including failure of
consideration, breach of warranty, payment, statute of frauds, statute of
limitations, accord and satisfaction and usury; and (viii) any other act or
thing or omission, or delay to do any other act or thing, which may or might in
any manner or to any extent vary the risk of any Guarantor as an obligor in
respect of the Obligations.
7.5. Waivers by Guarantors. Each Guarantor hereby waives, to the extent
permitted by applicable law, for the benefit of Beneficiaries: (a) any right to
require any Beneficiary, as a condition of payment or performance by such
Guarantor, to (i) proceed against Company, any other guarantor (including any
other Guarantor) of the Obligations or any other Person, (ii) proceed against or
exhaust any security held from Company, any such other guarantor or any other
Person, (iii) proceed against or have resort to any balance of any deposit
account or credit on the books of any Beneficiary in favor of Company or any
other Person, or (iv) pursue any
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other remedy in the power of any Beneficiary whatsoever; (b) any defense arising
by reason of the incapacity, lack of authority or any disability or other
defense of Company including any defense based on or arising out of the lack of
validity or the unenforceability of the Obligations or any agreement or
instrument relating thereto or by reason of the cessation of the liability of
Company from any cause other than payment in full of the Obligations; (c) any
defense based upon any statute or rule of law which provides that the obligation
of a surety must be neither larger in amount nor in other respects more
burdensome than that of the principal; (d) any defense based upon any
Beneficiary's errors or omissions in the administration of the Obligations,
except behavior which amounts to bad faith, gross negligence or willful
misconduct; (e) (i) any principles or provisions of law, statutory or otherwise,
which are or might be in conflict with the terms hereof and any legal or
equitable discharge of such Guarantor's obligations hereunder, (ii) the benefit
of any statute of limitations affecting such Guarantor's liability hereunder or
the enforcement hereof, (iii) any rights to set-offs, recoupments and
counterclaims, and (iv) promptness, diligence and any requirement that any
Beneficiary protect, secure, perfect or insure any security interest or lien or
any property subject thereto; (f) notices, demands, presentments, protests,
notices of protest, notices of dishonor and notices of any action or inaction,
including acceptance hereof, notices of default hereunder, the Hedge Agreements
or any agreement or instrument related thereto, notices of any renewal,
extension or modification of the Obligations or any agreement related thereto,
notices of any extension of credit to Company and notices of any of the matters
referred to in Section 7.4 and any right to consent to any thereof; and (g) any
defenses or benefits that may be derived from or afforded by law which limit the
liability of or exonerate guarantors or sureties, or which may conflict with the
terms hereof.
7.6. Guarantors' Rights of Subrogation, Contribution, Etc. Each
Guarantor hereby waives any claim, right or remedy, direct or indirect, that
such Guarantor now has or may hereafter have against Company or any of its
assets in connection with this Guaranty or the performance by such Guarantor of
its obligations hereunder, in each case whether such claim, right or remedy
arises in equity, under contract, by statute, under common law or otherwise and
including without limitation (a) any right of subrogation, reimbursement or
indemnification that such Guarantor now has or may hereafter have against
Company with respect to the guarantied Obligations, (b) any right to enforce, or
to participate in, any claim, right or remedy that any Beneficiary now has or
may hereafter have against Company, and (c) any benefit of, and any right to
participate in, any collateral or security now or hereafter held by any
Beneficiary. In addition, until the guarantied Obligations shall have been
indefeasibly paid in full and the Commitments shall have terminated and all
Letters of Credit shall have expired or been cancelled, each Guarantor shall
withhold exercise of any right of contribution such Guarantor may have against
any other guarantor (including any other Guarantor) of the guarantied
Obligations, including, without limitation, any such right of contribution under
Section 7.2. Each Guarantor further agrees that, to the extent the waiver or
agreement to withhold the exercise of its rights of subrogation, reimbursement,
indemnification and contribution as set forth herein is found by a court of
competent jurisdiction to be void or voidable for any reason, any rights of
subrogation, reimbursement or indemnification such Guarantor may have against
Company or against any collateral or security, and any rights of contribution
such Guarantor may have against any such other guarantor, shall be junior and
subordinate to any rights any Beneficiary may have against Company, to all
right, title and interest any Beneficiary may have in any such collateral or
security, and to any right any Beneficiary may have against such other
guarantor. If any amount shall be paid to any Guarantor on account of any such
subrogation,
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reimbursement, indemnification or contribution rights at any time when all
guarantied Obligations shall not have been paid in full, such amount shall be
held in trust for Global Agent on behalf of Beneficiaries and shall forthwith be
paid over to Global Agent for the benefit of Beneficiaries to be credited and
applied against the guarantied Obligations, whether matured or unmatured, in
accordance with the terms hereof.
7.7. Subordination of Other Obligations. Any Indebtedness of Company or
any Guarantor now or hereafter held by any Guarantor (the "Obligee Guarantor")
is hereby subordinated in right of payment to the Obligations, and any such
Indebtedness collected or received by the Obligee Guarantor after an Event of
Default has occurred and is continuing shall be held in trust for Global Agent
on behalf of Beneficiaries and shall forthwith be paid over to Global Agent for
the benefit of Beneficiaries to be credited and applied against the Obligations
but without affecting, impairing or limiting in any manner the liability of the
Obligee Guarantor under any other provision hereof.
7.8. Continuing Guaranty. This Guaranty is a continuing guaranty and
shall remain in effect until all of the Obligations shall have been paid in full
and the Commitments shall have terminated and all Letters of Credit shall have
expired or been cancelled. Each Guarantor hereby irrevocably waives any right
to revoke this Guaranty as to future transactions giving rise to any
Obligations.
7.9. Authority of Guarantors or Company. It is not necessary for any
Beneficiary to inquire into the capacity or powers of any Guarantor or Company
or the officers, directors or any Agents acting or purporting to act on behalf
of any of them.
7.10. Financial Condition of Company. Any Credit Extension may be granted
to Company or continued from time to time, and any Hedge Agreements may be
entered into from time to time, in each case without notice to or authorization
from any Guarantor regardless of the financial or other condition of Company at
the time of any such grant or continuation or at the time such Hedge Agreement
is entered into, as the case may be. No Beneficiary shall have any obligation
to disclose or discuss with any Guarantor its assessment, or any Guarantor's
assessment, of the financial condition of Company. Each Guarantor has adequate
means to obtain information from Company on a continuing basis concerning the
financial condition of Company and its ability to perform its obligations under
the Credit Documents and the Hedge Agreements, and each Guarantor assumes the
responsibility for being and keeping informed of the financial condition of
Company and of all circumstances bearing upon the risk of nonpayment of the
Obligations. Each Guarantor hereby waives and relinquishes any duty on the part
of any Beneficiary to disclose any matter, fact or thing relating to the
business, operations or conditions of Company now known or hereafter known by
any Beneficiary.
7.11. Bankruptcy, Etc. (a) So long as any Obligations remain outstanding,
no Guarantor shall, without the prior written consent of Global Agent acting
pursuant to the instructions of Requisite Lenders, commence or join with any
other Person in commencing any bankruptcy, reorganization or insolvency
proceedings of or against Company. The obligations of Guarantors hereunder
shall not be reduced, limited, impaired, discharged, deferred, suspended or
terminated by any proceeding, voluntary or involuntary, involving the
bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement
of Company or by any defense which
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Company may have by reason of the order, decree or decision of any court or
administrative body resulting from any such proceeding.
(b) Each Guarantor acknowledges and agrees that any interest on any
portion of the Obligations which accrues after the commencement of any
proceeding referred to in clause (a) above (or, if interest on any portion of
the Obligations ceases to accrue by operation of law by reason of the
commencement of said proceeding, such interest as would have accrued on such
portion of the Obligations if said proceedings had not been commenced) shall be
included in the Obligations because it is the intention of Guarantors and
Beneficiaries that the Obligations which are guarantied by Guarantors pursuant
hereto should be determined without regard to any rule of law or order which may
relieve Company of any portion of such Obligations. Guarantors will permit any
trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit
of creditors or similar person to pay Global Agent, or allow the claim of Global
Agent in respect of, any such interest accruing after the date on which such
proceeding is commenced.
(c) In the event that all or any portion of the Obligations are paid by
Company, the obligations of Guarantors hereunder shall continue and remain in
full force and effect or be reinstated, as the case may be, in the event that
all or any part of such payment(s) are rescinded or recovered directly or
indirectly from any Beneficiary as a preference, fraudulent transfer or
otherwise, and any such payments which are so rescinded or recovered shall
constitute Obligations for all purposes hereunder.
7.12. Notice of Events. As soon as any Guarantor obtains knowledge
thereof, such Guarantor shall give Global Agent written notice of any condition
or event which has resulted in (i) a material adverse change in the financial
condition of any Guarantor or Company or (ii) a breach of or noncompliance with
any term, condition or covenant contained herein, any other Credit Document, any
Hedge Agreement or any other document delivered pursuant hereto or thereto.
7.13. Discharge of Guaranty Upon Sale of Guarantor. If all of the equity
Securities of any Guarantor or any of its successors in interest hereunder shall
be sold or otherwise disposed of (including by merger or consolidation) in
accordance with terms and conditions hereof, the Guaranty of such Guarantor or
such successor in interest, as the case may be, hereunder shall automatically be
discharged and released without any further action by any Beneficiary or any
other Person effective as of the time of such Asset Sale; provided, as a
condition precedent to such discharge and release, Global Agent shall have
received evidence satisfactory to it that arrangements satisfactory to it have
been made for delivery to Global Agent of the applicable Net Asset Sale Proceeds
of such disposition pursuant to Section 2.13(a).
SECTION 8. EVENTS OF DEFAULT
8.1. Events of Default. If any one or more of the following conditions
or events shall occur:
(a) failure by Company to pay (i) when due any installment of principal
of any Loan when due, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; (ii) when due any
amount payable to any Issuing Bank in
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reimbursement of any drawing under a Letter of Credit issued thereby; or (iii)
any interest on any Loan or any fee or any other amount due hereunder within
five (5) days after the date due; or
(b) failure of one or more Credit Parties or any of their respective
Subsidiaries to pay when due any principal of or interest on or any other amount
payable in respect of one or more items of Indebtedness (other than Indebtedness
referred to in Section 8.1(a)) in an individual principal amount of $5,000,000
(or the Multicurrency Equivalent thereof) or more or with an aggregate principal
amount of $10,000,000 (or the Multicurrency Equivalent thereof) or more, in each
case beyond the end of any grace period provided therefor; or (ii) breach or
default by one or more Credit Parties or any of their respective Subsidiaries
with respect to any other material term of (1) one or more items of Indebtedness
in the individual or aggregate principal amounts referred to in clause (i) above
or (2) any loan agreement, mortgage, indenture or other agreement relating to
such item(s) of Indebtedness, if the effect of such breach or default is to
cause, or to permit the holder or holders of that Indebtedness (or a trustee on
behalf of such holder or holders) to cause, that Indebtedness to become or be
declared due and payable prior to its stated maturity or the stated maturity of
any underlying obligation, as the case may be (upon the giving or receiving of
notice, lapse of time, both, or otherwise); or
(c) failure of any Credit Party to perform or comply with any term or
condition contained in Section 2.5, 5.1(f), 5.2 or Section 6 hereof; or
(d) any representation, warranty, certification or other statement made
or deemed made by any Credit Party in any Credit Document or in any statement or
certificate at any time given by Company or any of its Subsidiaries in writing
pursuant hereto or thereto or in connection herewith or therewith shall be false
in any material respect on the date as of which made or deemed made; or
(e) any Credit Party shall default in the performance of or compliance
with any term contained herein or any of the other Credit Documents, other than
any such term referred to in any other subsection of this Section 8.1, and such
default shall not have been remedied or waived within thirty (30) days after the
earlier of (i) an officer of such Credit Party becoming aware of such default or
(ii) receipt by Company of notice from Global Agent or any Lender of such
default; or
(f) (i) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of Company or any of its Subsidiaries in an
involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree
or order is not stayed; or any other similar relief shall be granted under any
applicable federal or state law; or (ii) an involuntary case shall be commenced
against Company or any of its Subsidiaries under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over Company or any of its Subsidiaries, or
over all or a substantial part of its property, shall have been entered; or
there shall have occurred the involuntary appointment of an interim receiver,
trustee or other custodian of Company or any of its Subsidiaries for all or a
substantial part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of the
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property of Company or any of its Subsidiaries, and any such event described in
this clause (ii) shall continue for sixty (60) days unless dismissed, bonded or
discharged; or
(g) (i) Company or any of its Subsidiaries shall have an order for
relief entered with respect to it or commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, or shall consent to the appointment of or
taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; or Company or any of its Subsidiaries shall
make any assignment for the benefit of creditors; or (ii) Company or any of its
Subsidiaries shall be unable, or shall fail generally, or shall admit in writing
its inability, to pay its debts as such debts become due; or the Board of
Directors of Company or any of its Subsidiaries (or any committee thereof) shall
adopt any resolution or otherwise authorize any action to approve any of the
actions referred to herein or in Section 8.1(f); or
(h) any money judgment, writ or warrant of attachment or similar process
involving (i) in any individual case an amount in excess of $5,000,000 (or the
Multicurrency Equivalent thereof) or (ii) in the aggregate at any time an amount
in excess of $10,000,000 (or the Multicurrency Equivalent thereof), in either
case not adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage, shall be entered or filed against
Company or any of its Subsidiaries or any of their respective assets and shall
remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60)
days (or in any event later than five days prior to the date of any proposed
sale thereunder); or
(i) any order, judgment or decree shall be entered against any Credit
Party decreeing the dissolution or split up of Company or that Subsidiary and
such order shall remain undischarged or unstayed for a period in excess of
thirty (30) days; or
(j) there shall occur one or more ERISA Events which individually or in
the aggregate results in or might reasonably be expected to result in liability
of Company, any of its Subsidiaries or any of their respective ERISA Affiliates
in excess of $5,000,000 during the term hereof; or there shall exist an amount
of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA),
individually or in the aggregate for all Pension Plans (excluding for purposes
of such computation any Pension Plans with respect to which assets exceed
benefit liabilities), which exceeds $5,000,000; or
(k) either Transition Agreement shall terminate for any reason
whatsoever (other than in accordance with the terms thereof) or Seller shall
fail to perform its obligations under either such agreement and such failure
could reasonably be expected to result in a Material Adverse Effect; or
(l) a Change of Control shall occur; or
(m) at any time after the execution and delivery thereof, (i) the
Guaranty for any reason, other than the satisfaction in full of all Obligations,
shall cease to be in full force and effect (other than in accordance with its
terms) or shall be declared to be null and void or any
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Guarantor shall repudiate its obligations thereunder, (ii) this Agreement or any
other Collateral Document with respect to any Collateral ceases to be in full
force and effect (other than by reason of a release of Collateral in accordance
with the terms hereof or thereof or the satisfaction in full of the Obligations
in accordance with the terms hereof or thereof) or shall be declared null and
void, or Global Agent shall not have or shall cease to have a valid and
perfected Lien in any Collateral having a fair market value in excess of
$1,000,000 purported to be covered by any Collateral Document, in each case for
any reason other than the failure of Global Agent to take any action within its
control, or (iii) any Credit Party shall contest the validity or enforceability
of any Credit Document in writing or deny in writing that it has any further
liability, including with respect to future advances by Lenders, under any
Credit Document to which it is a party; or
(n) (i) the Acquisition shall not be consummated in accordance with the
Related Agreements concurrently with the making of the initial Loans, or the
Acquisition shall be unwound, reversed or otherwise rescinded in whole or in
part for any reason, or (ii) Company shall agree to any material amendment to,
or waive any of its material rights under, or otherwise change any material
terms of, any of the Related Agreements as in effect on the Closing Date, in a
manner adverse to Company or any of its Subsidiaries or to Lenders without the
prior written consent of Global Agent and Requisite Lenders;
THEN, (1) upon the occurrence of any Event of Default described in Section
8.1(f) or 8.1(g), automatically, and (2) upon the occurrence of any other Event
of Default, at the request of (or with the consent of) Requisite Lenders, upon
notice to Company by Global Agent, (A) the Facility Commitments, if any, of each
Lender having such Commitments and the obligation of each Issuing Bank to issue
any Letter of Credit shall immediately terminate, and (B) each of the following
shall immediately become due and payable, in each case without presentment,
demand, protest or other requirements of any kind, all of which are hereby
expressly waived by each Credit Party: (I) the unpaid principal amount of and
accrued interest on the Loans, (II) an amount equal to the maximum amount that
may at any time be drawn under all Letters of Credit then outstanding
(regardless of whether any beneficiary under any such Letter of Credit shall
have presented, or shall be entitled at such time to present, the drafts or
other documents or certificates required to draw under such Letter of Credit),
and (III) all other Obligations; provided, the foregoing shall not affect in any
way the obligations of Lenders under Section 2.2(b)(iv), 2.2(d)(v), 2.3(a)(iii),
2.3(a)(iv), 2.3(b)(iii) or 2.3(b)(iv).
SECTION 9. AGENTS
9.1. Appointment, Powers, and Immunities. Each Lender hereby irrevocably
appoints and authorizes GSCP to act as Syndication Agent, Bank of America to act
as Global Agent, Bank of America to act as US Facility Agent, Bank of America to
act as Multicurrency Facility Agent, and each of ABN, NBD and BNS to each act
as a Co-Documentation Agent under this Agreement and the other Credit Documents
with such powers and discretion as are specifically delegated to Syndication
Agent, Global Agent, the applicable Facility Agent and each Co-Documentation
Agent by the terms of this Agreement and the other Credit Documents, together
with such other powers as are reasonably incidental thereto. Each Agent (which
term as used in this Section 9 shall mean each Agent, its Affiliates and its own
and its Affiliates' officers, directors, employees):
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(a) shall not have any duties or responsibilities except those expressly
set forth in this Agreement and shall not be a trustee or fiduciary for any
Lender;
(b) shall not be responsible to Lenders for any recital, statement,
representation, or warranty (whether written or oral) made in or in connection
with any Credit Document or any certificate or other document referred to or
provided for in, or received by any of them under, any Credit Document, or for
the value, validity, effectiveness, genuineness, enforceability, or sufficiency
of any Credit Document, or any other document referred to or provided for
therein or for any failure by Company or any other Person to perform any of its
obligations thereunder;
(c) shall not be responsible for or have any duty to ascertain, inquire
into, or verify the performance or observance of any covenants or agreements by
Company or the satisfaction of any condition or to inspect the property
(including the books and records) of Company or any of its Subsidiaries or
Affiliates;
(d) except as expressly set forth herein or in any Credit Document,
shall not be required to initiate or conduct any litigation or collection
proceedings under any Credit Document; and
(e) shall not be responsible for any action taken or omitted to be taken
by it under or in connection with any Credit Document, except for its own gross
negligence or willful misconduct.
Each Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. As of the Closing Date, all the respective
obligations of GSCP, in its capacity as Syndication Agent, and each of ABN, NBD
and BNS in its capacity as a Co-Documentation Agent, shall terminate.
9.2. Reliance by Agents. Each Agent shall be entitled to rely upon any
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telefacsimile) believed by it to
be genuine and correct and to have been signed, sent or made by or on behalf of
the proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for Company), independent accountants, and other experts
selected by such Agent. As to any matters not expressly provided for by this
Agreement, no Agent shall be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Requisite Lenders, and such instructions shall be binding on all of the
applicable Lenders; provided, no Agent shall be required to take any action that
exposes it to personal liability or that is contrary to any Credit Document or
applicable law or unless it shall first be indemnified to its satisfaction by
the applicable Lenders against any and all liability and expense which may be
incurred by it by reason of taking any such action.
9.3. Defaults. No Agent shall be deemed to have knowledge or notice of
the occurrence of a Default or Event of Default unless it has received written
notice from another Agent or a Lender or Company specifying such Default or
Event of Default and stating that such notice is a "Notice of Default";
provided, each Lender shall use its best reasonable efforts to
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deliver such notice to its applicable Facility Agent upon its knowledge of any
Default or Event of Default; provided further, that the failure to deliver such
notice shall not result in any liability to any other Lender or Agent. In the
event that any Facility Agent receives such a notice of the occurrence of a
Default or Event of Default, such Facility Agent shall give prompt notice
thereof to the applicable Lenders in its specific Facility and the other Agents,
including Global Agent. In the event that Global Agent receives such a notice
of the occurrence of a Default or Event of Default, Global Agent shall give
prompt notice thereof to all Facility Agents. Global Agent shall (subject to
Section 9.2) take such action with respect to such Default or Event of Default
as shall reasonably be directed by the Requisite Lenders, provided, unless and
until Global Agent shall have received such directions, Global Agent may (but
shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable in
the best interest of Lenders.
9.4. Rights as Lender. With respect to its applicable Facility
Commitments and the Loans made by it, each Agent, acting in its individual
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not acting as an
Agent, and the term "Lender" or "Lenders" shall, unless the context otherwise
indicates, include each Agent in its individual capacity. Each of Agent in its
individual capacity and its Affiliates may (without having to account therefor
to any Lender) accept deposits from, lend money to, make investments in, provide
services to, and generally engage in any kind of lending, trust, or other
business with Company or any of its Subsidiaries or Affiliates as if it were not
acting as an Agent, and each Agent in its individual capacity and its Affiliates
may accept fees and other consideration from Company or any of its Subsidiaries
or Affiliates for services in connection with this Agreement or otherwise
without having to account for the same to Lenders.
9.5. Indemnification. Each Lender agrees to indemnify Agents (to the
extent not reimbursed under Section 10.3, but without limiting the obligations
of Company under such Section and solely to the extent of such Lender's Pro Rata
Share), for any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including attorneys' fees), or
disbursements of any kind and nature whatsoever that may be imposed on, incurred
by or asserted against any of Agents (including by any Lender) in any way
relating to or arising out of any Credit Document or the transactions
contemplated thereby or any action taken or omitted by any of Agents under any
Credit Document; provided, no Lender shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful misconduct of the
Person to be indemnified. Without limitation of the foregoing, each Lender
agrees to reimburse Agents promptly upon demand for its Pro Rata Share of any
costs or expenses payable by Company under Section 10.3, to the extent that
Agents are not promptly reimbursed for such costs and expenses by Company.
9.6. Non-Reliance on Agents and Other Lenders. Each Lender agrees that
it has, independently and without reliance on any of Agents or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis of Company and its Subsidiaries, including Target and
its Subsidiaries, and decision to enter into this Agreement and that it will,
independently and without reliance upon any of Agents or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking or not taking
action under the
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Credit Documents. Except for notices, reports, and other documents and
information expressly required to be furnished to Lenders by Agents hereunder,
Agents shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the affairs, financial condition, or
business of Company or any of its Subsidiaries or Affiliates that may come into
the possession of any of Agents or any of its Affiliates.
9.7. Resignation of an Agent. Any Agent may resign at any time by
giving notice thereof (a) with respect to the resignation of Global Agent, to
Lenders, Company and Facility Agents, and (b) with respect to the resignation
of any applicable Facility Agent, to applicable Lenders, Company and Global
Agent. Upon any such resignation of Global Agent, the Requisite Lenders shall
have the right to appoint a successor Global Agent, which shall be a Lender at
such time and which, so long as no Default or Event of Default exists, shall be
acceptable to Company, which acceptance shall not be unreasonably withheld or
delayed. Upon any such resignation of an applicable Facility Agent, the
applicable Requisite Class Lenders with respect to the applicable Facility shall
have the right to appoint a successor Facility Agent for such Facility, which
shall be a Lender under such Facility at such time and which, so long as no
Default or Event of Default exists, shall be acceptable to Company, which
acceptance shall not be unreasonable withheld or delayed. If no successor
Global Agent or applicable Facility Agent shall have been so appointed and shall
have accepted such appointment within thirty (30) days after the retiring Global
Agent or applicable Facility Agent's giving of notice of resignation, then the
resignation of the retiring Global Agent or applicable Facility Agent as the
case may be, shall nonetheless thereupon be effective and Facility Agents, in
the case of Global Agent's resignation, or applicable Facility Lenders, in the
case of an applicable Facility Agent's resignation, shall perform all the
obligations of the retiring Agent hereunder until such time, if any, as the
Requisite Lenders shall appoint a successor Agent as provided for above. Upon
the acceptance of any appointment as Global Agent or applicable Facility Agent
hereunder by a successor, such successor shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges, and duties of the
retiring Global Agent or applicable Facility Agent, and the retiring Global
Agent or applicable Facility Agent shall be discharged from its duties and
obligations hereunder. After any retiring Global Agent or applicable Facility
Agent's resignation hereunder as Global Agent or applicable Facility Agent, the
provisions of this Section 9 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 Global
Agent or applicable Facility Agent.
9.8. Collateral Documents and Guaranties. (a) Each Lender hereby further
authorizes Global Agent, on behalf of and for the benefit of Lenders, to be the
agent for and representative of Lenders with respect to the Guaranty and the
Collateral. Without further written consent or authorization from Lenders,
Global Agent shall execute any documents or instruments necessary to (i) release
any Lien encumbering any item of Collateral that is the subject of a sale or
other disposition of assets permitted hereby, that secures a Real Estate Asset
being developed in connection with the incurrence of any Indebtedness permitted
pursuant to Section 6.1(l), that secures any Leasehold Property that is being
terminated or otherwise abandoned, or to which Requisite Lenders (or such other
Lenders as may be required to give such consent under Section 10.5) have
otherwise consented or (ii) release any Guarantor from the Guaranty if all of
the equity Securities of such Guarantor is sold to any Person (other than an
Affiliate of Company) pursuant to Section 7.13 or to which Requisite Lenders (or
such other Lenders as may be required to give such consent under Section 10.5)
have otherwise consented.
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(b) Anything contained in any of the Credit Documents to the contrary
notwithstanding, Company, Global Agent and each Lender hereby agree that (i) no
Lender shall have any right individually to realize upon any of the Collateral
or to enforce the Guaranty, it being understood and agreed that all powers,
rights and remedies hereunder may be exercised solely by Global Agent for the
benefit of Lenders in accordance with the terms hereof, and (ii) in the event of
a foreclosure by Global Agent on any of the Collateral pursuant to a public or
private sale, Global Agent or any Lender may be the purchaser of any or all of
such Collateral at any such sale and Global Agent, as agent for and
representative of Lenders (but not any Lender or Lenders in its or their
respective individual capacities unless Requisite Lenders shall otherwise agree
in writing) shall be entitled, for the purpose of bidding and making settlement
or payment of the purchase price for all or any portion of the Collateral sold
at any such public sale, to use and apply any of the Obligations as a credit on
account of the purchase price for any collateral payable by Global Agent at such
sale.
(c) It is the purpose hereof and the other Credit Documents that there
shall be no violation of any law of any jurisdiction denying or restricting the
right of banking corporations or associations to transact business as agent or
trustee in such jurisdiction. It is recognized that in case of litigation
hereunder or any of the other Credit Documents, and in particular in case of the
enforcement of any of the Credit Documents, or in case Global Agent deems that
by reason of any present or future law of any jurisdiction it may not exercise
any of the rights, powers or remedies granted herein or in any of the other
Credit Documents or take any other action which may be desirable or necessary in
connection therewith, it may be necessary that Global Agent appoint an
additional individual or institution as a separate trustee, co-trustee,
collateral agent or collateral co-agent (a "Supplemental Collateral Agent''). In
the event that Global Agent appoints a Supplemental Collateral Agent with
respect to any Collateral, (i) each and every right, power, privilege or duty
expressed or intended hereby or any of the other Credit Documents to be
exercised by or vested in or conveyed to Global Agent with respect to such
Collateral shall be exercisable by and vest in such Supplemental Collateral
Agent to the extent, and only to the extent, necessary to enable such
Supplemental Collateral Agent to exercise such rights, powers and privileges
with respect to such Collateral and to perform such duties with respect to such
Collateral, and every covenant and obligation contained in the Credit Documents
and necessary to the exercise or performance thereof by such Supplemental
Collateral Agent shall run to and be enforceable by either Agent or such
Supplemental Collateral Agent, and (ii) the provisions of this Section 9 and of
Sections 10.2 and 10.3 that refer to Global Agent shall inure to the benefit of
such Supplemental Collateral Agent and all references therein to Global Agent
shall be deemed to be references to Global Agent and/or such Supplemental
Collateral Agent, as the context may require. Should any instrument in writing
from Company or any other Credit Party be required by any Supplemental
Collateral Agent so appointed by Global Agent for more fully and certainly
vesting in and confirming to him or it such rights, powers, privileges and
duties, Company shall, or shall cause such Credit Party to, execute, acknowledge
and deliver any and all such instruments promptly upon request by Global Agent.
In case any Supplemental Collateral Agent, or a successor thereto, shall die,
become incapable of acting, resign or be removed, all the rights, powers,
privileges and duties of such Supplemental Collateral Agent, to the extent
permitted by law, shall vest in and be exercised by Global Agent until the
appointment of a new Supplemental Collateral Agent.
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SECTION 10. MISCELLANEOUS
10.1. Notices. Unless otherwise specifically provided herein, any notice
or other communication herein required or permitted to be given shall be sent to
the address of the applicable Person as set forth on Appendix C or as designated
in writing from time to time by such Person to Global Agent, the applicable
Facility Agent and Company. Each notice hereunder shall be in writing and may
be personally served, telexed or sent by telefacsimile or United States mail or
courier service and shall be deemed to have been given when delivered in person
or by courier service and signed for against receipt thereof, upon receipt of
telefacsimile or telex, or three Business Days after depositing it in the United
States mail with postage prepaid and properly addressed; provided, no notice to
any Agent shall be effective until received by such Agent.
10.2. Expenses. Whether or not the transactions contemplated hereby shall
be consummated, Company agrees to pay promptly (a) all the actual and reasonable
costs and expenses of preparation of the Credit Documents and any consents,
amendments, waivers or other modifications thereto; (b) all the costs of
furnishing all opinions by counsel for Company (including any opinions requested
by Lenders as to any legal matters arising hereunder) and of Company's and its
Subsidiaries' performance of and compliance with all agreements and conditions
on its part to be performed or complied with hereunder and the other Credit
Documents including with respect to confirming compliance with environmental,
insurance and solvency requirements; (c) the reasonable fees, expenses and
disbursements of counsel to Syndication Agent, Global Agent and NMS (in each
case including allocated costs of internal counsel) in connection with the
negotiation, preparation, execution and administration of the Credit Documents
and any consents, amendments, waivers or other modifications thereto and any
other documents or matters requested by Company; (d) all the actual costs and
reasonable expenses of creating and perfecting Liens in favor of Global Agent on
behalf of Lenders pursuant hereto, including filing and recording fees, expenses
and taxes, stamp or documentary taxes, search fees, title insurance premiums and
reasonable fees, expenses and disbursements of counsel to Syndication Agent,
Global Agent and NMS and of counsel providing any opinions that any Agent or
Requisite Lenders may request in respect of the Collateral or the Liens created
pursuant hereto; (e) all the actual costs and reasonable fees, expenses and
disbursements of any auditors, accountants, consultants or appraisers; (f) all
the actual costs and reasonable expenses (including the reasonable fees,
expenses and disbursements of any appraisers, consultants, advisors and agents
employed or retained by Global Agent and its counsel) in connection with the
custody or preservation of any of the Collateral; (g) all other actual and
reasonable costs and expenses incurred by Syndication Agent, Global Agent and
NMS in connection with the syndication of the Loans and Commitments and the
negotiation, preparation and execution of the Credit Documents and any consents,
amendments, waivers or other modifications thereto and the transactions
contemplated thereby; and (h) after the occurrence of an Event of Default, all
costs and expenses, including reasonable attorneys' fees (including allocated
costs of internal counsel) and costs of settlement, incurred by any Agent and
Lenders in enforcing any Obligations of or in collecting any payments due from
any Credit Party hereunder or under the other Credit Documents by reason of such
Event of Default (including in connection with the sale of, collection from, or
other realization upon any of the Collateral or the enforcement of the Guaranty)
or in connection with any refinancing or restructuring of the credit
arrangements
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provided hereunder in the nature of a "work-out" or pursuant to any insolvency
or bankruptcy proceedings.
10.3. Indemnity. In addition to the payment of expenses pursuant to
Section 10.2, whether or not the transactions contemplated hereby shall be
consummated, each Credit Party agrees to defend (subject to Indemnitees'
selection of counsel), indemnify, pay and hold harmless Agents and Lenders, and
the officers, partners, directors, trustees, employees, agents and Affiliates of
each Agent and each Lender (each, an "Indemnitee"), from and against any and all
Indemnified Liabilities; provided, no Credit Party shall have any obligation to
any Indemnitee hereunder with respect to any Indemnified Liabilities to the
extent such Indemnified Liabilities arise solely from the gross negligence or
willful misconduct of that Indemnitee as determined by a final, non-appealable
judgment of a court of competent jurisdiction. To the extent that the
undertakings to defend, indemnify, pay and hold harmless set forth in this
Section 10.3 may be unenforceable in whole or in part because they are violative
of any law or public policy, applicable Credit Party shall contribute the
maximum portion that it is permitted to pay and satisfy under applicable law to
the payment and satisfaction of all Indemnified Liabilities incurred by
Indemnitees or any of them.
10.4. Set-Off. In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default each Lender is hereby authorized by each
Credit Party at any time or from time to time subject to the consent of Global
Agent (such consent not to be unreasonably withheld or delayed), without notice
to any Credit Party or to any other Person (other than Global Agent), any such
notice being hereby expressly waived, to set off and to appropriate and to apply
any and all deposits (general or special, including Indebtedness evidenced by
certificates of deposit, whether matured or unmatured, but not including trust
accounts) and any other Indebtedness at any time held or owing by such Lender to
or for the credit or the account of any Credit Party against and on account of
the obligations and liabilities of any Credit Party to such Lender hereunder,
the Letters of Credit and participations therein and the other Credit Documents,
including all claims of any nature or description arising out of or connected
herewith, the Letters of Credit and participations therein or any other Credit
Document, irrespective of whether or not (a) such Lender shall have made any
demand hereunder or (b) the principal of or the interest on the Loans or any
amounts in respect of the Letters of Credit or any other amounts due hereunder
shall have become due and payable pursuant to Section 2 and although said
obligations and liabilities, or any of them, may be contingent or unmatured.
Each Credit Party hereby further grants to Global Agent and each Lender a
security interest in all Deposits Accounts maintained with Global Agent or such
Lender as security for the Obligations.
10.5. Amendments and Waivers. (a) Subject to Section 10.5(b) and
10.5(c), no amendment, modification, termination or waiver of any provision of
the Credit Documents, or consent to any departure by any Credit Party therefrom,
shall in any event be effective without the written concurrence of the Requisite
Lenders.
(b) Without the written consent of each Lender that would be affected
thereby, no amendment, modification, termination, or consent shall be effective
if the effect thereof would (i) extend the scheduled final maturity of any Loan
or Note; (ii) waive, reduce or postpone any scheduled repayment; (iii) extend
the stated expiration date of any Letter of Credit beyond the
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applicable Facility Commitment Termination Date; (iv) reduce (1) the rate of
interest on any Loan (other than any waiver of any increase in the interest rate
applicable to any Loan pursuant to Section 2.9) or (2) any commitment fees or
letter of credit fees payable hereunder; (v) extend the time for payment of any
such interest or fees; (vi) reduce the principal amount of any Loan or any
reimbursement obligation in respect of any Letter of Credit; (vii) amend,
modify, terminate or waive any provision of this Section 10.5(b) or of Section
10.5(c); (viii) amend the definition of "Requisite Lenders"; provided, with the
consent of Requisite Lenders, additional extensions of credit pursuant hereto
may be included in the determination of "Requisite Lenders" on substantially the
same basis as the Term Loan Amounts, the Term Loans, the Commitments and the
Facility Loans are included on the Closing Date; (ix) release or otherwise
subordinate all or substantially all of the Collateral or all or substantially
all of the Guarantors from the Guaranty except as expressly provided in the
Credit Documents; (x) consent to the assignment or transfer by any Credit Party
of any of its rights and obligations under any Credit Document; or (xi) extend
the duration of any Interest Period.
(c) No amendment, modification, termination or waiver of any provision
of the Credit Documents, or consent to any departure by any Credit Party
therefrom, shall (i) increase any Facility Commitment of any Lender over the
amount thereof then in effect without the consent of such Lender; provided, no
amendment, modification or waiver of any condition precedent, covenant, Default
or Event of Default shall constitute an increase in any Facility Commitment of
any Lender; (ii) amend, modify, terminate or waive any provision hereof relating
to either the Swing Line Sublimit or the Swing Line Loans without the consent of
the applicable Swing Line Lender; (iii) amend the definition of "Requisite Class
Lenders" without the consent of Requisite Class Lenders of each Class; provided,
with the consent of the applicable Requisite Class Lenders, additional
extensions of credit pursuant hereto may be included in the determination of
such "Requisite Class Lenders" on substantially the same basis as the Term Loan
Amounts, the Term Loans, the Commitments and the Facility Loans are included on
the Closing Date; (iv) alter the required application of any prepayments as
between Classes pursuant to Section 2.14 without the consent of Requisite Class
Lenders of each Class which is being allocated a lesser repayment or prepayment
as a result thereof; provided, with respect to the Tranche B Term Loans and the
Tranche C Term Loans, the Requisite Class of Tranche B Term Loan Lenders and the
Requisite Class of Tranche C Term Loan Lenders may waive, in whole or in part,
any prepayment with respect to such Term Loans so long as the application, as
between the applicable Classes, of any portion of such prepayment which is still
required to be made, is not altered; (v) amend, modify, terminate or waive any
obligation of Lenders relating to the purchase of participations in Letters of
Credit as provided in Section 2.3(a)(iv) or 2.3(b)(iv) without the written
consent of Global Agent and of the applicable Issuing Bank; or (vi) amend,
modify, terminate or waive any provision of Section 9 as the same applies to any
Agent, or any other provision hereof as the same applies to the rights or
obligations of any Agent, in each case without the consent of such Agent.
(d) Global Agent may, but shall have no obligation to, with the
concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of such Lender. Any waiver or consent shall be effective
only in the specific instance and for the specific purpose for which it was
given. No notice to or demand on any Credit Party in any case shall entitle any
Credit Party to any other or further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this
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Section 10.5 shall be binding upon each Lender at the time outstanding, each
future Lender and, if signed by a Credit Party, on such Credit Party.
10.6. Successors and Assigns; Participations. (a) This Agreement shall be
binding upon the parties hereto and their respective successors and assigns and
shall inure to the benefit of the parties hereto and the successors and assigns
of Lenders. No Credit Party's rights or obligations hereunder nor any interest
therein may be assigned or delegated by any Credit Party without the prior
written consent of all Lenders.
(b) Company, each Agent and Lenders shall deem and treat the Persons
listed as Lenders in the applicable Register as the holders and owners of the
corresponding Commitments and Loans listed therein for all purposes hereof, and
no assignment or transfer of any such Commitment or Loan shall be effective, in
each case unless and until an Assignment Agreement effecting the assignment or
transfer thereof shall have been accepted by the applicable Facility Agent and
recorded in the applicable Register. Prior to such recordation, all amounts
owed with respect to the applicable Facility Commitment or Loan shall be owed to
the Lender listed in the Register as the owner thereof, and any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is listed in the Register as a Lender shall be
conclusive and binding on any subsequent holder, assignee or transferee of the
corresponding Commitments or Loans.
(c) Each Lender shall have the right at any time to sell, assign or
transfer any Commitment, Loan, Letter of Credit (or participation in such Letter
of Credit) or any other Obligation: (i) upon the giving of notice to Company and
Global Agent, to any Person meeting the criteria of clause (i)(a) of the
definition of the term of "Eligible Assignee" (treating any two or more
investment funds that invest in commercial loans and that are managed or advised
by the same investment advisor or by an Affiliate of such investment advisor as
a single Eligible Assignee); or (ii) except in the case of any assignment of any
interest hereunder (except with respect to any interest in either Facility) by
or to GSCP or Bank of America, for which no consent shall be required, with the
consent of Company, Global Agent and, with respect to any assignment or transfer
of an interest in either Facility, the applicable Swing Line Lender and the
applicable Issuing Bank (no such consent to be unreasonably withheld or delayed
and none of which shall be required during the occurrence and continuance of an
Event of Default) to any Person meeting the criteria of clause (i)(b) or (ii) of
the definition of the term of "Eligible Assignee" in an aggregate amount of not
less than $5,000,000 (treating any two or more investment funds that invest in
commercial loans and that are managed or advised by the same investment advisor
or by an Affiliate of such investment advisor as a single Eligible Assignee), or
such lesser amount as shall be agreed to in writing by Company and such Lender
or as shall constitute the aggregate amount of the Commitments, Loans, Letters
of Credit and participations therein, and other Obligations of the assigning
Lender.
(d) The assigning Lender and the assignee thereof shall execute and
deliver to the applicable Facility Agent an Assignment Agreement, together with
(i) a processing and recordation fee of $3,500, (except for any assignment of
any or all interests under this Agreement not including any interest under the
Multicurrency Loan Facility, in which case such fee shall be $2,500) payable to
the applicable Facility Agent and (ii) such forms, certificates or other
evidence, if any, with respect to United States federal income tax withholding
matters as
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the assignee under such Assignment Agreement may be required to deliver to the
applicable Facility Agent pursuant to Section 2.23. Subject to Section 10.6(b),
upon its receipt of a duly executed and completed Assignment Agreement, together
with the processing and recordation fee referred to herein and any forms,
certificates or other evidence set forth therein, the applicable Facility Agent
shall (1) accept and consent to such Assignment Agreement by executing a
counterpart thereof as provided therein, (2) record the information contained
therein in the applicable Register, and (3) give prompt notice thereof to
Company. The applicable Facility Agent shall maintain a copy of each Assignment
Agreement delivered to and accepted by it as provided in this Section 10.6(d).
(e) Each Lender, upon execution and delivery hereof or upon executing
and delivering an Assignment Agreement, as the case may be, represents and
warrants as of the Closing Date or as of the Effective Date (as defined in such
Assignment Agreement), as the case may be, that (i) it is an Eligible Assignee;
(ii) it has experience and expertise in the making of or investing in loans such
as the Loans; and (iii) it will make or invest in, as the case may be, its Loans
for its own account in the ordinary course of its business and without a view to
distribution of such Loans within the meaning of the Securities Act or the
Exchange Act or other federal securities laws (it being understood that, subject
to the provisions of this Section 10.6, the disposition of such Loans or any
interests therein shall at all times remain within its exclusive control).
(f) Subject to the terms and conditions of this Section 10.6, as of the
"Effective Date" specified in the applicable Assignment Agreement: (i) the
assignee thereunder shall have the rights and obligations of a "Lender"
hereunder to the extent such rights and obligations hereunder have been assigned
to it pursuant to such Assignment Agreement and shall thereafter be a party
hereto and a "Lender" for all purposes hereof; (ii) the assigning Lender
thereunder shall, to the extent that rights and obligations hereunder have been
assigned thereby pursuant to such Assignment Agreement, relinquish its rights
(other than any rights which survive the termination hereof under Section 10.8)
and be released from its obligations hereunder (and, in the case of an
Assignment Agreement covering all or the remaining portion of an assigning
Lender's rights and obligations hereunder, such Lender shall cease to be a party
hereto; provided, anything contained in any of the Credit Documents to the
contrary notwithstanding, each Issuing Bank shall continue to have all rights
and obligations thereof with respect to such Letters of Credit issued thereby
until the cancellation or expiration of such Letters of Credit and the
reimbursement of any amounts drawn thereunder); (iii) the Facility Commitments
shall be modified to reflect the Facility Commitment of such assignee and any
remaining Facility Commitment of such assigning Lender; and (iv) if any such
assignment occurs after the issuance of any Note hereunder, the assigning Lender
shall, upon the effectiveness of such assignment or as promptly thereafter as
practicable, surrender its applicable Notes to the applicable Facility Agent for
cancellation, and thereupon Company shall issue and deliver new Notes, if so
requested by the assignee and/or assigning Lender, to such assignee and/or to
such assigning Lender, with appropriate insertions, to reflect the new Facility
Commitments and/or outstanding Loans of the assignee and/or the assigning
Lender.
(g) Each Lender shall have the right at any time to sell one or more
participations to any Person in all or any part of its Commitments, Loans or
Letters of Credit or participations therein or any other interest herein or in
any other Obligation. The holder of any participation,
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other than an Affiliate of Lender granting such participation, shall not be
entitled to require such Lender to take or omit to take any action hereunder
except action directly affecting (i) the extension of the scheduled final
maturity date of any Loan allocated to such participation, (ii) an increase in
the Facility Commitment of such Lender, (iii) any waiver or extension in the
payment of any fee or interest payable to such Lender, (iv) a reduction of the
principal amount of or the rate of interest or fee payable on any Loan allocated
to such participation, and (v) the release or subordination of all or
substantially all of the Guarantors from the Guaranty of all or substantially
all of the Collateral. All amounts payable by any Credit Party hereunder,
including amounts payable to such Lender pursuant to Section 2.18, 2.22 or 2.23,
shall be determined as if such Lender had not sold such participation. Each
Credit Party and each Lender hereby acknowledge and agree that, solely for
purposes of Sections 2.17 and 10.4, (1) any participation will give rise to a
direct obligation of each Credit Party to the participant and (2) the
participant shall be considered to be a "Lender".
(h) In addition to the assignments and participations permitted under
the foregoing provisions of this Section 10.6, any Lender may assign and pledge
all or any portion of its Loans, the other Obligations owed to such Lender, and
its Notes to any Federal Reserve Bank as collateral security pursuant to
Regulation A of the Board of Governors of the Federal Reserve System and any
operating circular issued by such Federal Reserve Bank, and with the consent of
Company and Global Agent any Lender which is an investment fund may pledge all
or any portion of its Notes or Loans to its trustee in support of its
obligations to such trustee; provided, (i) no Lender shall, as between Company
and such Lender, be relieved of any of its obligations hereunder as a result of
any such assignment and/or pledge and (ii) in no event shall such Federal
Reserve Bank or trustee be considered to be a "Lender" or be entitled to require
the assigning Lender to take or omit to take any action hereunder.
(i) In the event that any Facility Lender fails to maintain a rating of
BBB or higher from S&P and a rating of Baa2 or higher from Moody's (a "Non-Rated
Facility Lender"), and unless otherwise consented to by Global Agent, each
applicable Facility Agent, each applicable Swing Line Lender and each applicable
Issuing Bank (which consent may be subsequently withdrawn for any reason or no
reason by any such Person), such Facility Lender shall be replaced as soon as
practicable by, and assign all its Loans, applicable Facility Commitments and
other Obligations owing thereto pursuant to Section 10.6 to, an Eligible
Assignee selected by Company and willing to become a Facility Lender for all
purposes hereunder. Such Non-Rated Facility Lender agrees to execute and
deliver to Global Agent and to the applicable Facility Agent an Assignment
Agreement with such replacement Facility Lender upon payment at par by such
replacement Facility Lender of all principal, interest, fees and other amounts
owing under this Agreement to such Non-Rated Facility Lender. The Non-Rated
Facility Lender shall pay to the applicable Facility Agent the processing fee
required by Section 10.6(d) in connection with such assignment, and upon
satisfaction of the applicable conditions in Section 10.6, such replacement
lender shall become a Facility Lender hereunder.
10.7. Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or would otherwise be within the limitations of, another covenant shall not
avoid the occurrence of a Default or an Event of Default if such action is taken
or condition exists.
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10.8. Survival of Representations, Warranties and Agreements. All
representations, warranties and agreements made herein shall survive the
execution and delivery hereof and the making of any Credit Extension.
Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Credit Party set forth in Sections 2.18, 2.22, 2.23, 10.2,
10.3, 10.4, 10.18 and 10.19 and the agreements of Lenders set forth in Sections
2.17, 9.5 and 10.17 shall survive the payment of the Loans, the cancellation or
expiration of the Letters of Credit and the reimbursement of any amounts drawn
thereunder, and the termination hereof.
10.9. No Waiver; Remedies Cumulative. No failure or delay on the part of
Global Agent or any Lender in the exercise of any power, right or privilege
hereunder or under any other Credit Document shall impair such power, right or
privilege or be construed to be a waiver of any default or acquiescence therein,
nor shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other power, right or
privilege. The rights, powers and remedies given to each Agent and each Lender
hereby are cumulative and shall be in addition to and independent of all rights,
powers and remedies existing by virtue of any statute or rule of law or in any
of the other Credit Documents. Any forbearance or failure to exercise, and any
delay in exercising, any right, power or remedy hereunder shall not impair any
such right, power or remedy or be construed to be a waiver thereof, nor shall it
preclude the further exercise of any such right, power or remedy.
10.10. Marshalling; Payments Set Aide. Neither Global Agent nor any
Lender shall be under any obligation to marshal any assets in favor of any
Credit Party or any other Person or against or in payment of any or all of the
Obligations. To the extent that any Credit Party makes a payment or payments to
Global Agent or Lenders (or to Global Agent for the benefit of Lenders), or
Global Agent or Lenders enforce any security interests or exercise their rights
of setoff, and such payment or payments or the proceeds of such enforcement or
setoff or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, any other state or federal
law, common law or any equitable cause, then, to the extent of such recovery,
the obligation or part thereof originally intended to be satisfied, and all
Liens, rights and remedies therefor or related thereto, shall be revived and
continued in full force and effect as if such payment or payments had not been
made or such enforcement or setoff had not occurred.
10.11. Severability. In case any provision in or obligation hereunder or
any Note shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
10.12. Obligations Several; Independent Nature of Lenders' Rights. The
obligations of Lenders hereunder are several and no Lender shall be responsible
for the obligations or Commitments of any other Lender hereunder. Nothing
contained herein or in any other Credit Document, and no action taken by Lenders
pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out hereof and it shall not be necessary for any other Lender to
be joined as an additional party in any proceeding for such purpose.
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10.13. Headings. Section headings herein are included herein for
convenience of reference only and shall not constitute a part hereof for any
other purpose or be given any substantive effect.
10.14. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES THEREOF.
10.15. CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST
ANY CREDIT PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT,
OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING
AND DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, IRREVOCABLY (a) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (b) WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS; (c) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN
ACCORDANCE WITH SECTION 10.1; (d) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (c)
ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT
PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (e) AGREES SUCH LENDERS
RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER
JURISDICTION.
10.16. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO
WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT HEREOF OR ANY OF THE OTHER CREDIT DOCUMENTS OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR
THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS
WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH
HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH
WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH
PARTY HERETO
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FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL
WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH
OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER
CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
10.17. Confidentiality. Each Lender shall hold all non-public information
obtained pursuant to the requirements hereof which has been identified as
confidential by Company in accordance with such Lender's customary procedures
for handling confidential information of this nature and in accordance with
prudent lending or investing practices, it being understood and agreed by
Company that in any event a Lender may make disclosures to Affiliates of such
Lender or disclosures reasonably required by any bona fide assignee, transferee
or participant in connection with the contemplated assignment or transfer by
such Lender of any Loans or any participations `therein or by any direct or
indirect contractual counterparties (or the professional advisors thereto) in
swap agreements (provided, such swap counterparties and advisors are advised of
and agree to be bound by the provisions of this Section 10.17) or disclosures
required or requested by any governmental agency or representative thereof or by
NAIC or any applicable rating agency or pursuant to legal process; provided,
unless specifically prohibited by applicable law or court order, each Lender
shall notify Company of any request by any governmental agency or representative
thereof (other than any such request in connection with any examination of the
financial condition of such Lender by such governmental agency) for disclosure
of any such non-public information prior to disclosure of such information; and
provided further, in no event shall any Lender be obligated or required to
return any materials furnished by Company or any of its Subsidiaries.
10.18. Judgment Currency. Company, Agents and each Lender hereby agree
that if, in the event that a judgment is given in relation to any sum due to any
Agent or any Lender hereunder, such judgment is given in a currency (the
"Judgment Currency") other than that in which such sum was originally
denominated (the "Original Currency"), Company agrees to indemnify such Agent or
Lender, as the case may be, to the extent that the amount of the Original
Currency which could have been purchased thereby in accordance with normal
banking procedures on the Business Day following receipt of such sum is less
than the sum which could have been so purchased thereby had such purchase been
made on the day on which such judgment was given or, if such day is not a
Business Day, on the Business Day immediately preceding the giving of such
judgment, and if the amount so purchased exceeds the amount which could have
been so purchased thereby had such purchase been made on the day on which such
judgment was given or, if such day is not a Business Day, on the Business Day
immediately preceding such judgment, such Agent or Lender agrees to remit such
excess to Company. The agreements in this Section 10.18 shall survive payment
of any such judgment.
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10.19. Usury Savings Clause. Notwithstanding any other provision herein,
the aggregate interest rate charged with respect to any of the Obligations,
including all charges or fees in connection therewith deemed in the nature of
interest under applicable law shall not exceed the Highest Lawful Rate. If the
rate of interest (determined without regard to the preceding sentence) under
this Agreement at any time exceeds the Highest Lawful Rate, the outstanding
amount of the Loans made hereunder shall bear interest at the Highest Lawful
Rate until the total amount of interest due hereunder equals the amount of
interest which would have been due hereunder if the stated rates of interest set
forth in this Agreement had at all times been in effect. In addition, if when
the Loans made hereunder are repaid in full the total interest due hereunder
(taking into account the increase provided for above) is less than the total
amount of interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect, then to
the extent permitted by law, Company shall pay to the applicable Facility Agent
an amount equal to the difference between the amount of interest paid and the
amount of interest which would have been paid if the Highest Lawful Rate had at
all times been in effect. Notwithstanding the foregoing, it is the intention of
Lenders and Company to conform strictly to any applicable usury laws.
Accordingly, if any Lender contracts for, charges, or receives any consideration
which constitutes interest in excess of the Highest Lawful Rate, then any such
excess shall be cancelled automatically and, if previously paid, shall at such
Lender's option be applied to the outstanding amount of the Loans made hereunder
or be refunded to Company.
10.20. Counterparts; Effectiveness. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto and receipt by
Company and Global Agent of written or telephonic notification of such execution
and authorization of delivery thereof.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
STRYKER CORPORATION
By ______________________________
Name:
Title:
STRYKER FAR EAST, INC.
By _______________________________
Name:
Title:
PHYSIOTHERAPY ASSOCIATES INC.
By _______________________________
Name:
Title:
OSTEONICS CORP.
By _______________________________
Name:
Title:
STRYKER INTERNATIONAL INC.
By _______________________________
Name:
Title:
S-1
<PAGE> 140
HOWMEDICA CORP.,
By _____________________________
Name:
Title:
STRYKER FOREIGN HOLDCO INC.
By _____________________________
Name:
Title:
STRYKER IMPLANTS INC.
By _____________________________
Name:
Title:
STRYKER PUERTO RICO INC.
By _____________________________
Name:
Title:
STRYKER SALES CORPORATION
By _____________________________
Name:
Title:
STRYKER TECHNOLOGIES CORPORATION
By _____________________________
Name:
Title:
S-2
<PAGE> 141
SMD CORPORATION
By _____________________________
Name:
Title:
HOWMEDICA LEIBINGER INC.
By _____________________________
Name:
Title:
S-3
<PAGE> 142
GOLDMAN SACHS CREDIT PARTNERS L.P., as a
Joint Lead Arranger, Syndication Agent and
a Lender
By _____________________________
Name:
Title:
S-4
<PAGE> 143
NATIONSBANC MONTGOMERY SECURITIES LLC, as a
Joint Lead Arranger
[NOT A SIGNATORY]
S-5
<PAGE> 144
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as Global
Agent, US Facility Agent and Multicurrency
Facility Agent
By _____________________________
Name:
Title:
S-6
<PAGE> 145
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as a Lender,
US Swing Line Lender, US Issuing Bank, a
Multicurrency Swing Line Lender and a
Multicurrency Issuing Bank
By _____________________________
Name:
Title:
S-7
<PAGE> 146
ABN AMRO BANK N.V., as a Co-Documentation
Agent and a Lender
By _____________________________
Name:
Title:
By _____________________________
Name:
Title:
S-8
<PAGE> 147
NBD BANK, as a Co-Documentation Agent and a
Lender
By _____________________________
Name:
Title:
S-9
<PAGE> 148
THE BANK OF NOVA SCOTIA, as a
Co-Documentation Agent and a Lender
By _____________________________
Name:
Title:
S-10
