<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1997
--------------------------------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
----------------------- ---------------------
Commission File Number: 000-19168
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Sofamor Danek Group, Inc.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Indiana 35-1580052
- -------------------------------------------------------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number)
</TABLE>
1800 Pyramid Place, Memphis, Tennessee 38132
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(Address of principal executive offices) (Zip Code)
(901) 396-2695
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(Registrant's telephone number, including area code)
- --------------------------------------------------------------------------------
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
[X] Yes [ ] No
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
24,801,121 shares of common stock outstanding as of June 30, 1997
- --------------------------------------------------------------------------------
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PART I - FINANCIAL INFORMATION
Item 1. FINANCIAL STATEMENTS
SOFAMOR DANEK GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARES)
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1997 1996
----------- ------------
ASSETS (UNAUDITED)
<S> <C> <C>
Current Assets:
Cash and cash equivalents $ 2,641 $ 2,830
Short-term investments 71 111
Accounts receivable--trade, less allowance for
doubtful accounts of $1,688 and $1,589 for
June 30, 1997 and December 31, 1996,
respectively 76,338 70,031
Other receivables 22,106 15,813
Inventories 51,987 33,483
Loaner set inventories 16,974 14,123
Prepaid expenses 3,880 6,318
Prepaid income taxes 4,225 --
Current deferred income taxes 6,007 5,312
--------- ---------
Total current assets 184,229 148,021
Property, plant and equipment
Land 1,481 1,484
Buildings 10,809 11,261
Machinery and equipment 34,441 32,083
Automobiles 739 708
--------- ---------
47,470 45,536
Less accumulated depreciation (22,546) (20,026)
--------- ---------
24,924 25,510
Investments 958 920
Intangible assets, net 89,159 83,426
Other assets 29,291 28,282
Non-current deferred income taxes 30,867 33,002
--------- ---------
Total assets $ 359,428 $ 319,161
========= =========
</TABLE>
The accompanying notes are an integral part of the
consolidated financial statements.
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SOFAMOR DANEK GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (CONTINUED)
(IN THOUSANDS, EXCEPT SHARES)
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1997 1996
----------- ------------
LIABILITIES (UNAUDITED)
<S> <C> <C>
Current Liabilities:
Notes payable and lines of credit $ 85,381 $ 50,207
Current maturities of long-term debt 7,576 16,687
Accounts payable 10,230 7,332
Income taxes payable -- 3,898
Accrued expenses 30,293 38,770
--------- ---------
Total current liabilities 133,480 116,894
Long-term debt, less current maturities 5,268 12,300
Deferred income taxes 108 121
Product liability litigation 45,370 48,000
Minority interest 3,471 2,020
Commitments and contingencies
STOCKHOLDERS' EQUITY
Preferred stock, no par value, 5,000,000 shares
authorized, no shares outstanding
Common stock, no par value 150,000,000 shares
authorized: 25,487,029 and 25,094,277 shares
issued (including 685,908 shares held in treasury)
at June 30, 1997 and December 31, 1996,
respectively
62,793 52,994
Retained earnings 124,471 98,044
Cumulative translation adjustment (1,833) 2,542
--------- ---------
185,431 153,580
Less:
Cost of common stock held in treasury (9,985) (9,985)
Unearned compensation -- (54)
Stockholder notes receivable (3,715) (3,715)
--------- ---------
Total stockholder's equity 171,731 139,826
--------- ---------
Total liabilities and stockholder's equity $ 359,428 $ 319,161
========= =========
</TABLE>
The accompanying notes are an integral part of the
consolidated financial statements.
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SOFAMOR DANEK GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS SIX MONTHS
ENDED JUNE 30, ENDED JUNE 30,
1997 1996 1997 1996
-------- -------- --------- ---------
<S> <C> <C> <C> <C>
Revenues $ 73,613 $ 56,820 $ 143,372 $ 111,038
Cost of goods sold 12,660 9,731 25,030 20,347
-------- -------- --------- ---------
Gross Profit 60,953 47,089 118,342 90,691
Operating Expenses:
Selling, general and administrative 34,633 26,784 67,331 52,772
Research and development 4,767 3,919 9,497 7,557
-------- -------- --------- ---------
Total operating expenses 39,400 30,703 76,828 60,329
-------- -------- --------- ---------
Income from operations 21,553 16,386 41,514 30,362
Other income 179 90 255 1,070
Interest expense (1,515) (795) (2,691) (1,572)
-------- -------- --------- ---------
Income from operations before
provision for and charge in lieu of
income taxes 20,217 15,681 39,078 29,860
Provision for and charge in
lieu of income taxes 5,863 4,612 11,333 8,194
-------- -------- --------- ---------
Income before minority interest 14,354 11,069 27,745 21,666
Minority interest (701) (437) (1,318) (849)
-------- -------- --------- ---------
Net income $ 13,653 $ 10,632 $ 26,427 $ 20,817
======== ======== ========= =========
Fully diluted net income per share $ 0.50 $ 0.41 $ 0.98 $ 0.80
======== ======== ========= =========
Weighted average common shares
outstanding 27,352 25,994 27,023 26,043
======== ======== ========= =========
</TABLE>
Note: Primary weighted average shares approximate fully diluted
weighted average shares.
The accompanying notes are an integral part of the
consolidated financial statements.
4
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SOFAMOR DANEK GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOW
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30,
1997 1996
------ ------
<S> <C> <C>
Cash flows from operating activities:
Net income 26,427 20,817
Adjustments to reconcile net income to net cash
provided (used) by operating activities:
Depreciation and amortization 8,498 4,184
Provision for doubtful accounts receivable 295 180
Deferred income tax (benefit) expense 1,018 (79)
Loss (gain) on disposal of equipment (4) 18
Equity loss in unconsolidated affiliate -- 20
Minority interest 1,318 849
Changes in assets and liabilities, net of effects of acquisition:
Accounts receivable (8,674) (3,655)
Other receivables (6,450) (7,450)
Inventories and loaner set inventories (22,720) (3,641)
Prepaid expenses 2,312 344
Prepaid income taxes (4,227) 3,149
Other assets (667) (14,950)
Accounts payable 3,278 (1,414)
Accrued state income and franchise taxes 320 360
Accrued federal income taxes 2,388 --
Accrued foreign income taxes (2,739) (243)
Accrued expenses (7,406) 2,385
Product liability litigation (2,630) --
------- -------
Net cash provided (used) by operating activities (9,663) 874
------- -------
Cash flows from investing activities:
Purchase of short-term investments (2) (98)
Proceeds from maturities of short-term investments 33 1,899
</TABLE>
The accompanying notes are an integral part of the
consolidated financial statements.
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SOFAMOR DANEK GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOW (CONTINUED)
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30,
1997 1996
-------- --------
<S> <C> <C>
Payments for purchase of property, plant and equipment (4,420) (3,392)
Proceeds from sale of equipment 14 3
Purchase of intangible assets (11,113) (3,778)
Increase in notes receivable, other (367) --
Repayments of notes receivable, other 12 53
Investment in unconsolidated affiliates (133) --
Acquisition, net of cash acquired -- (10,464)
-------- --------
Net cash used by investing activities (15,976) (15,777)
-------- --------
Cash flows from financing activities:
Increase in short-term borrowings 36,287 13,886
Proceeds from long-term debt 136 433
Repayment of long-term debt (16,208) (9,972)
Proceeds from issuance of common stock 6,329 4,525
Capital contribution by minority shareholders 148 428
-------- --------
Net cash provided by financing activities 26,692 9,300
-------- --------
Effect of exchange rate changes on cash (1,242) (940)
-------- --------
Decrease in cash and cash equivalents (189) (6,543)
Cash and cash equivalents, beginning of period 2,830 11,330
-------- --------
Cash and cash equivalents, end of period $ 2,641 $ 4,787
======== ========
</TABLE>
Supplemental disclosure of non-cash investing and financing activities:
- In 1997 and 1996, net income tax benefits of $3,470 and $2,115,
respectively, were realized by the Company as a result of certain
common stock options being exercised and vesting of certain
restricted common stock, reducing accrued federal and state income
taxes payable and increasing common stock.
The accompanying notes are an integral part of the
consolidated financial statements.
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SOFAMOR DANEK GROUP, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
1. Financial Statement Presentation
The consolidated balance sheet as of June 30, 1997, the consolidated
statements of income for the three and six months ended June 30, 1997 and
1996, and the consolidated statements of cash flows for the six months
ended June 30, 1997 and 1996, are unaudited but, in the opinion of
management, include all adjustments (consisting only of normal recurring
adjustments) necessary for a fair presentation of financial position,
results of operations and cash flows. Accordingly, certain information and
footnote disclosures normally included in complete financial statements
prepared in accordance with generally accepted accounting principles have
been condensed or omitted. It is suggested that these consolidated
financial statements be read in conjunction with the financial statements
and notes thereto included in the Company's 1996 Annual Report on Form
10-K.
2. Inventories and Loaner Set Inventories
Net inventories and loaner set inventories consist of:
<TABLE>
<CAPTION>
--------------------------------------------------------------------------
June 30, December 31,
1997 1996
--------------------------------------------------------------------------
<S> <C> <C>
Finished goods $43,843 $28,260
Work-in-process 5,106 2,961
Raw materials 3,038 2,262
--------------------------------------------------------------------------
Net inventories $51,987 $33,483
--------------------------------------------------------------------------
Loaner set inventories, net $16,974 $14,123
--------------------------------------------------------------------------
</TABLE>
3. Income Taxes
The Company's effective income tax rate was 29.0% for the quarter and six
months ended June 30, 1997. The effective rates were 29.4% and 27.4% for
the quarter and six months ended June 30, 1996, respectively. The
difference between the Company's effective and statutory tax rates for
both the quarter and six months ended June 30, 1997 and 1996, resulted
primarily from the impact of certain elections made for U.S. tax purposes
following the combination (the "Combination") of Danek Group, Inc. with
Sofamor S.A. ("Sofamor"), and the subsequent reorganization of Sofamor
from a Societe Anonyme (S.A.) under French law to a Societe en Nom
Collectif (S.N.C.) in late 1993. At June 30, 1997, the balance sheet of
the Company reflected a net deferred tax asset of $36,766. No valuation
allowance was recorded since sufficient taxable income existed in
available carryback periods to recognize fully these net deferred tax
assets.
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During the first six months of 1997 and 1996, charges in lieu of income
taxes of $3,470 and $2,115 respectively, were recorded by the Company as
a result of certain common stock options being exercised and vesting of
certain restricted common stock.
4. Adoption of SFAS 128
In March 1997, the Financial Accounting Standards Board (the "Board")
issued Statement No. 128 "Earnings Per Share" ("FAS 128"). FAS 128
establishes standards for computing and presenting earnings per share
("EPS") and replaces the presentation of primary EPS with a presentation
of basic EPS. It also requires dual presentation of basic and diluted EPS
on the face of the statement of operations and requires a reconciliation
of the numerator and the denominator of the basic EPS computation to the
numerator and the denominator of the diluted EPS computation. The Company
will adopt the disclosure requirements of FAS 128 beginning December 31,
1997. The Company does not expect the adoption of FAS 128 to have a
material impact on earnings per share when presented on a comparable
basis.
5. Commitments and Contingencies
The Company is involved from time to time in litigation on various matters
which are routine to the conduct of its business, including product
liability and intellectual property cases.
PRODUCT LIABILITY LITIGATION
Beginning in 1994, the Company and other spinal implant manufacturers were
named as defendants in a number of product liability lawsuits brought in
various federal and state courts around the country. These lawsuits allege
that plaintiffs were injured by spinal implants manufactured by the
Company and others. Although the plaintiffs have advanced claims under
many different legal theories, the essence of their claims appear to be
that the Company (including Sofamor and its former U.S. distributor)
marketed some of its spinal systems for pedicle fixation in contravention
of Food & Drug Administration ("FDA") rules and regulations (governing
marketing and labeling), that pedicle fixation has not been proven safe
and effective in the context of FDA labeling standards, that some or all
of the spinal systems are defectively designed and manufactured, and that
plaintiffs have suffered a variety of injuries as a result of their
physicians' use of such systems in pedicle fixation. The Company has also
been named as a defendant in a number of lawsuits instituted by plaintiffs
who have received spinal implants manufactured by other manufacturers and
in which the Company is alleged to have participated in a conspiracy among
doctors, manufacturers, hospitals, teaching institutions, professional
societies and others to promote, in violation of applicable law, the use
of spinal implants.
In a number of cases, plaintiffs have sought to proceed as representatives
of classes of spinal implant recipients. All efforts to obtain class
certification have been denied or withdrawn. Some plaintiffs have filed
individual lawsuits, whereas other lawsuits list multiple plaintiffs and,
in certain instances, multiple lawsuits have been filed on behalf of the
same individual plaintiffs. Plaintiffs typically seek relief in the form
of monetary damages, often in
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<PAGE> 9
unspecified amounts. Many of the plaintiffs only allege as monetary
damages an amount in excess of the jurisdictional minimum for the court
in which the case has been filed. A few suits also name as defendants
various officers and directors of the Company.
To date, approximately two thousand eight hundred (2,800) plaintiffs have
joined in lawsuits against the Company. The majority of these plaintiffs
filed their claims in 1995. The Company is also named as a defendant in
lawsuits involving about two thousand six hundred (2,600) claimants where
the Company is alleged to have conspired with competitors and others
illegally to promote the use of spinal implant systems.
The Company believes that it has defenses, including, without limitation,
defenses based upon the failure of a cause of action to exist where no
malfunction of the implant has occurred or the plaintiff has suffered no
injury attributable to the Company's product, the expiration of the
applicable statute of limitations and the learned intermediary defense.
The Company has asserted and will continue to assert these defenses
primarily through the filing of dispositive motions. The Company believes
that all product liability lawsuits currently pending against it are
without merit and will continue to defend them vigorously.
FEDERAL MULTIDISTRICT LITIGATION (MDL 1014)
On August 4, 1994, the Federal Judicial Panel for Multidistrict Litigation
ordered all federal court lawsuits to be transferred to and consolidated
for pretrial proceedings, including the determination of class
certification, in the United States District for the Eastern District of
Pennsylvania in Philadelphia (the "Multidistrict Litigation"). Lawsuits
filed in federal court after August 4, 1994, have also been transferred to
and consolidated in the Multidistrict Litigation in the Eastern District
of Pennsylvania. In addition, a number of lawsuits filed in state courts
around the country were removed to federal courts and then transferred
into the Multidistrict Litigation. On February 22, 1995, Chief Judge
Emeritus, Louis C. Bechtle, denied class certification. A large number of
plaintiffs filed individual lawsuits as a result of the denial of class
certification. In some instances lawsuits that had been removed and
transferred into the Multidistrict Litigation have been remanded to the
state courts in which they were filed because there was no federal court
jurisdiction. Currently, the Company is a defendant in approximately one
thousand (1,000) individual claims and one thousand (1,000) conspiracy
claims consolidated in the Multidistrict Litigation. On August 22, 1996,
Judge Bechtle dismissed without prejudice plaintiffs' conspiracy claims.
Most plaintiffs asserting conspiracy claims in the Multidistrict
Litigation have filed amended or new complaints. It is not possible to
determine at this time precisely how many of these conspiracy complaints
will be reasserted or the number of additional plaintiffs that may file
new lawsuits. On April 16, 1997, Judge Bechtle dismissed conspiracy claims
alleging fraud on the FDA, but deferred the remaining conspiracy claims
for later consideration by the federal trial courts to whom the cases will
be remanded for trial.
Discovery has been completed in a number of the federal court cases and is
continuing in the remainder. It is anticipated that the first cases to be
returned for trial to the federal court in which they were filed will be
remanded beginning in August 1997. It is not now possible to determine
when the first federal court cases will be tried.
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<PAGE> 10
STATE COURT LITIGATION
A number of cases filed in state courts were not eligible for removal and
transfer into the Multidistrict Litigation. Currently, there are
approximately one thousand eight hundred (1,800) individual claims pending
against the Company in several courts around the country, principally in
Tennessee, Oklahoma, Texas and Pennsylvania. In addition, there are
approximately one thousand six hundred (1,600) conspiracy claims pending
in state courts.
Approximately one thousand five hundred fifty (1,550) plaintiffs who had
joined together in several complaints which had been removed to the
Multidistrict Litigation proceedings, have had their cases remanded to the
state court in Memphis, Tennessee, where they were originally filed when
it was determined that the federal court lacked jurisdiction over their
claims. The presiding state court judge in Memphis has established a case
management plan which calls for the preparation of eight representative
cases for pretrial preparation and trial.
Discovery is proceeding in all remaining state court cases. Some state
cases have been given trial dates in 1997. It is anticipated that a number
of other state court cases around the country may be scheduled for trial
in 1997, although delays in trial dates are common. Trials in the Memphis
proceedings are scheduled to commence in January of 1998.
ACROMED CORPORATION PROPOSED SETTLEMENT
In December 1996, AcroMed Corporation ("AcroMed"), a spinal implant
manufacturer and a defendant in many of the cases pending in the
Multidistrict Litigation, and the Plaintiff's Legal Committee in the
Multidistrict Litigation announced that they had entered into a
conditional settlement regarding all product liability claims involving
the use of AcroMed devices to achieve pedicular fixation with screws in
spinal fusion surgery. Under the terms of the proposed settlement, AcroMed
will establish a settlement fund consisting of $100 million in cash plus
the proceeds of its product liability insurance policies. In January 1997,
the parties submitted a formal class settlement agreement and related
documentation for approval by Judge Bechtle. Judge Bechtle is currently
considering whether to certify the proposed settlement class and the
fairness, adequacy and reasonableness of the proposed settlement. All
federal court proceedings involving AcroMed devices have been stayed
pending final consideration of the proposed settlement.
INSURANCE
All of the insurance carriers for policy periods in which these claims
have been made have asserted reservation of rights, but have not denied
coverage to the Company. To date, the cost of defending these claims has
been reimbursed by certain of the primary and excess carriers, and the
Company is actively engaged in discussions concerning the recovery of
amounts currently due and owing from all other carriers. The Company
believes that these receivables are recoverable under the terms of the
Company's policies. The Company's insurance policies are reduced by the
costs of defense, except for a policy issued by Royal Surplus Lines
Insurance Co. ("Royal") covering the 12-month period that began in
November 1995. The Company estimates that the litigation may continue for
several years and, if so, the cost to defend and conclude these lawsuits
is likely to exhaust its insurance
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<PAGE> 11
coverage. Royal brought an action in December 1996 in the Federal District
Court for the Middle District of Tennessee (Nashville Division) seeking a
declaratory judgment as to, among other things, whether the policy covers
lawsuits which have been reported to the insurer during the policy period.
The Company has filed its answer and counterclaim in the Royal lawsuit. In
addition, the Company has initiated its own declaratory judgment lawsuit
against Royal in the Federal District Court located in Memphis, Tennessee.
This lawsuit seeks a declaration of coverage and immediate payment of the
outstanding balance of amounts due from Royal. Based on the Company's
motion, Royal's lawsuit has been transferred to the Federal District Court
in Memphis Tennessee. This litigation is in the preliminary stages. The
Company believes that Royal's claims are without merit and will defend
them vigorously.
As is common in the insurance industry, the Company's insurance policies
covering product liability claims must be renewed annually. Although the
Company has been able to obtain insurance coverage relating to product
liability claims at a cost and on other terms and conditions that are
acceptable to the Company, there can be no assurance that in the future it
will be able to do so.
The Company's 1996 financial results reflect a pre-tax charge relating to
costs associated with the product liability litigation described above.
The costs provided for include, but are not limited to, legal fees paid or
anticipated to be paid and other costs related to the Company's defense
and conclusion of these matters.
The actual costs to the Company could differ from the estimated charge and
will be dependent upon a number of factors that will not be known for some
time, including, among other things, the resolution of defense motions and
the extent of further discovery. Although an adverse resolution of the
lawsuits could have a material effect on the Company's results of
operations in future periods, the Company does not believe that these
matters will in the future have a material adverse effect on its
consolidated financial position. The Company is unable to predict the
ultimate outcome or the financial impact of the product liability
litigation.
SECURITIES LAWS ACTIONS
Beginning in April 1994, the Company and four of its officers and
directors were named in five shareholder lawsuits filed in the United
States District Court in Memphis, Tennessee. Four of the lawsuits purport
to be class actions. All of the lawsuits were consolidated into one case
in the United States District Court in Memphis through an amended
complaint which added four new individual defendants who are either
current or former directors of the Company. The lawsuit alleges that the
defendants made false and misleading statements and failed to disclose
material facts to the investing public and seeks money damages. The
alleged securities law violations are based on the claim that the
defendants failed to disclose that the Company sold its products
illicitly, illegitimately and improperly and to timely disclose facts
concerning the termination of the former United States distributor of
Sofamor products, National Medical Specialties, Inc. ("NMS"). The
allegations relating to illicit and illegitimate sales of product are, for
the most part, copied from product liability complaints filed against the
Company and other manufacturers currently being coordinated in the
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United States District Court for the Eastern District of Pennsylvania
which are referred to above. The allegations of improper sales relate to
one of the Company's selling programs which has been publicly disclosed
since May 1991. The allegations concerning NMS relate to the termination
of the NMS distribution agreement covering Sofamor products in the United
States. On October 3, 1995, the United States District Court Judge in
Memphis dismissed with prejudice the entire case against the Company and
each of the individual defendants. The plaintiffs have appealed the
dismissal to the United States Court of Appeals for the Sixth Circuit,
which has not yet ruled on this appeal.
SPANISH DISTRIBUTOR ACTION
In late September 1994, a Magistrate of the Commercial Court in Paris
ruled in favor of a former Spanish distributor of Sofamor's products on a
claim of wrongful termination of the distribution agreement in 1992. Prior
to June 1993, an accrual was established, with a related charge to
earnings, for this pending litigation. In June 1993, the Company also
established a separate indemnity with respect to potential losses
resulting from such lawsuit and placed in escrow shares issued to the
former Sofamor shareholders pending the final outcome of this lawsuit. The
$3.0 million award (including interest) rendered by the French Magistrate
exceeded the pre-established accrual. As a result, the Company recorded an
expense of $2.2 million for the non-recurring litigation award during the
third and fourth quarters of 1994. The Company filed an appeal which
involves a complete retrial on all issues. The former Spanish distributor
has filed its papers in the appeal and seeks additional damages; the
Company seeks to have the decision of the Commercial Court reversed. A
hearing on the appeal is currently scheduled for the fourth quarter of
1997.
The Company does not believe the Securities Laws Actions or the Spanish
Distributor Action, described above, will have a material adverse effect
on its consolidated financial position, results of operations or cash
flows because of, among other reasons, the facts and circumstances
existing with respect to each action, the Company's belief that these
actions are without merit, certain defenses available to the Company and
the availability of insurance in the Securities Laws Actions.
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Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF
OPERATIONS AND FINANCIAL CONDITION
The following table sets forth for the periods indicated, selected unaudited
financial information expressed as a percentage of revenues and the
period-to-period change in such information.
<TABLE>
<CAPTION>
PERIOD-TO-PERIOD
CHANGE
-----------------
THREE SIX
MONTHS MONTHS
JUNE 30, JUNE 30,
THREE MONTHS SIX MONTHS 1997 1997
ENDED JUNE 30, ENDED JUNE 30, VS VS
1997 1996 1997 1996 1996 1996
------ ------ ------ ------ ----- -----
<S> <C> <C> <C> <C> <C> <C>
Revenues 100.0% 100.0% 100.0% 100.0% 29.6% 29.1%
Cost of goods sold 17.2 17.1 17.5% 18.3 30.1 23.0
------ ------ ------ ------
Gross profit 82.8 82.9 82.5% 81.7 29.4 30.5
Operating expenses:
Selling, general and administrative 47.0 47.2 47.0 47.6 29.3 27.6
Research and development 6.5 6.9 6.5 6.8 21.6 25.7
------ ------ ------ ------
Total operating expenses 53.5 54.1 53.5 54.4 28.3 27.3
Income from operations 29.3 28.8 29.0 27.3 31.5 36.7
Other income 0.2 0.2 0.2 1.0 98.9 76.2
Interest expense (2.0) (1.4) (1.9) (1.4) 90.6 71.2
------ ------ ------ ------
Income from operations before provision
for and charge in lieu of income taxes 27.5 27.6 27.3 26.9 28.9 30.9
Provision for and charge in lieu of
income taxes 8.0 8.1 7.9 7.4 27.1 38.3
------ ------ ------ ------
Income before minority interest 19.5 19.5 19.4 19.5 29.7 28.1
Minority interest (1.0) (0.8) (1.0) (0.8) 60.4 55.2
------ ------ ------ ------
Net income 18.5% 18.7% 18.4% 18.7% 28.4% 26.9%
====== ====== ====== ======
</TABLE>
RESULTS OF OPERATIONS*
The Company reported record revenues of $73.6 million and $143.4 million for the
quarter and six months ended June 30, 1997. Second quarter 1997 revenues
increased $16.8 million or 29.6%, compared with the second quarter of 1996. An
increase in volume contributed revenue growth of 28.0%. The Company's conversion
of certain portions of its international distribution network to direct sales,
which resulted in higher selling prices, contributed a 1.7% increase. Other net
pricing changes in existing distribution channels resulted in a 3.5% increase in
revenues. If exchange rates had been constant, revenues would have reflected an
additional 3.6% increase compared with the second quarter of 1996.
- ----------
* Except for the historical information contained in this Quarterly Report on
Form 10-Q, the matters discussed herein (including, in particular, those
discussed in Part II, Item 1, "Legal Proceedings") are forward-looking
statements that involve risks and uncertainties, including (without limitation)
the timely development and acceptance of new products, the impact of competitive
products, the timely receipt of regulatory clearances required for new products,
the regulation of the Company's products generally, the disposition of certain
litigation involving the Company and certain other risks and uncertainties
detailed from time to time in the Company's periodic reports (including the
Annual Report on Form 10-K for the year ended December 31, 1996) filed with the
Securities and Exchange Commission and "Factors That May Affect Future Operating
Results and Financial Condition" detailed in this Quarterly Report on Form 10-Q
for the quarter ended June 30, 1997.
13
<PAGE> 14
Revenues for the six months ended June 30, 1997, represented a $32.3 million or
29.1% increase over the same period in 1996. Higher volume generated 27.3%
revenue growth. The Company's conversion of certain portions of its
international distribution network to direct sales, which resulted in higher
selling prices, contributed a 2.1% increase. Other net pricing changes in
existing distribution channels resulted in a 3.1% increase in revenues. If
exchange rates had been constant, revenues would have reflected an additional
3.4% increase compared with the first six months of 1996.
U.S. revenues increased 30.9% to $48.9 million and 32.9% to $97.2 million during
the quarter and six months ended June 30, 1997, respectively, from the same
periods in 1996. The Company believes the improvement in U.S. revenues is
primarily the result of the increasing number of instrumented spinal fusions, as
well as the acceptance of new products and services such as the
STEALTHSTATION(TM) system, the MEDNEXT(R) surgical drill system, and service
fees related to cortical bone dowel and other allograft bone products.
Non-U.S. revenues advanced 27.1% to $24.7 million and 21.8% to $46.2 million
during second quarter and first six months of 1997, respectively, from the same
periods in 1996. If exchange rates had been constant, the revenue increases for
the second quarter and first six months of 1997 over the comparative periods in
1996 would have been 38.1% and 32.1%, respectively. Higher sales volume in core
products and the acceptance of new products were the primary sources of the
increases in revenues for the quarter and six months ended June 30, 1997,
compared with the same periods in 1996. In addition, the Company's revenues
continued to benefit from the direct sales operations which were established in
selected countries during 1996 and the first half of 1997.
The Company's second quarter 1997 gross margin of 82.8% remained relatively
constant with the second quarter 1996 gross margin of 82.9%. Gross margin during
the first six months of 1997 improved to 82.5% from 81.7% during the same period
in 1996. The slight improvement in gross margin during the first six months of
1997 was due to leveraging of manufacturing costs over greater unit volume and
higher selling prices related to changes in international distribution.
Selling, general, and administrative ("SG&A") expenses expressed as a percentage
of revenues decreased to 47.0% in the second quarter of 1997, compared with
47.2% during the same period in 1996. SG&A expenses for the first six months of
1997 were 47.0% of revenues, down from 47.6%, during the first six months of
1996. The decreases in SG&A expenses as a percentage of revenues resulted from
the leveraging of fixed costs over greater revenue volume, despite higher
expenses incurred in direct sales operations established in selected countries
during 1996 and the first half of 1997.
Research and development ("R&D") expenses totaled $4.8 million, or 6.5% of
revenues, for the second quarter of 1997, compared with $3.9 million, or 6.9% of
revenues, for the second quarter of 1996. For the first six months of 1997, R&D
expenses were $9.5 million or 6.5% of revenues compared to 6.8% of revenues for
the same period in 1996. In dollars, R&D spending increased 21.6% and 25.7% for
the quarter and six months ended June 30, 1997, respectively, over the same
periods in 1996. These development and clinical costs are incurred as the
Company continues to enhance existing product lines and develop new and
complementary products, such as the interbody fusion devices, biological
products for use in spinal applications, and products
14
<PAGE> 15
related to frameless stereotactic surgery in the spinal and neurological fields
of use. These expenditures demonstrate the Company's continued commitment to the
pursuit of applying new medical technologies to product opportunities.
Interest expense for the quarter and six months ended June 30, 1997, was $1.5
million and $2.7 million, respectively, compared with $795,000 and $1.6 million,
respectively, for the same periods in 1996. Interest expense was higher during
the quarter and six months ended June 30, 1997, compared with the same periods
in the prior year due to interest on increased borrowings against the Company's
credit facilities occurring principally as a result of acquisitions made in
1996.
The Company's effective income tax rate was 29.0% for the quarter and six months
ended June 30, 1997. The effective rates for the second quarter and first six
months of 1996 were 29.4% and 27.4%, respectively. The difference between the
Company's effective and statutory tax rates for both the quarter and six months
ended June 30, 1997 and 1996, resulted primarily from the impact of certain
elections made for U.S. tax purposes following the combination of Danek Group,
Inc. with Sofamor S.A. ("Sofamor"), and the subsequent reorganization of Sofamor
from a Societe Anonyme (S.A.) under French law to a Societe en Nom Collectif
(S.N.C.) in late 1993. Management cannot be certain that such a favorable
effective income tax rate will be achieved in future periods, since the
effective tax rate calculation is dependent upon the Company's pre-tax income
dollar amount among other factors. Higher future pre-tax income could lead to
higher future effective tax rates. At June 30, 1997, the balance sheet of the
Company reflected a net deferred tax asset of $36.8 million. No valuation
allowance was recorded since sufficient taxable income exists in available
carryback periods to recognize fully these net deferred tax assets.
In June 1997, the Financial Accounting Standards Board issued Statement No. 128
"Earnings Per Share" ("FAS 128"). FAS 128 establishes standards for computing
and presenting earnings per share ("EPS") and replaces the presentation of
primary EPS with a presentation of basic EPS. It also requires dual presentation
of basic and diluted EPS on the face of the statement of operations and requires
a reconciliation of the numerator and the denominator of the basic EPS
computation to the numerator and the denominator of the diluted EPS computation.
The Company will adopt the disclosure requirements of FAS 128 beginning December
31, 1997. The Company does not expect the adoption of FAS 128 to have a material
impact on earnings per share when presented on a comparable basis.
LIQUIDITY AND CAPITAL RESOURCES
Cash generated from operations and the Company's revolving lines of credit are
the principal sources of funding available for growth of the business, including
working capital and additions to property, plant and equipment, as well as debt
service requirements and required contractual payments. The Company believes
that these sources of funding will be sufficient to meet its expected cash needs
for the foreseeable future. Cash, cash equivalents and short-term investments
totaled $2.7 million at June 30, 1997, compared with $2.9 million at December
31, 1996.
15
<PAGE> 16
The Company's working capital increased by $19.6 million during the first six
months of 1997. The increase in working capital resulted primarily from
operations. Accounts receivable increased $6.3 million from December 31, 1996,
due principally to the increase in revenues. Inventories and loaner set
inventories increased by $21.4 million from year-end, due mostly to stocking
levels required for recently formed subsidiaries and the production of
inventories in preparation for new sales and marketing programs. Other
receivables, which consisted primarily of amounts recoverable from insurance
carriers related to the expenses incurred in connection with product liability
litigation, increased $6.3 million from the previous year-end.
In 1995, the Company entered into to a license agreement (the "Agreement") with
Genetics Institute which resulted in a special charge of $45.3 million. The
Company made payments in June 1997 and 1996 of $17.5 million and $12.5 million,
respectively, as required by the Agreement. The final scheduled payment of $7.5
million is payable on June 30, 1998. All payments include both principal and
imputed interest.
The purchase agreements for two of the acquisitions made by the Company in 1996
contain provisions which provide for contingent payments to the former
shareholders of each entity based upon certain calculations relative to revenues
and earnings, as defined, through 1999. Such payments will be reflected as
purchase price adjustments. During 1996, the Company recorded an adjustment to
the purchase price of one of these acquisitions of $4.2 million. This amount was
paid during April of 1997. The Company is unable to determine whether such
payments will be required for the years 1997 through 1999.
During 1996, the Company recorded a special product liability litigation charge
of $50.0 million. This charge was recorded in order to recognize the reasonably
anticipated costs associated with the defense and conclusion of certain product
liability cases in which the Company is named as defendant. At June 30, 1997,
the balance sheet of the Company reflected a long-term liability of $45.4
million and the current portion of this liability was included in accrued
expenses. (See Part II, Item 1.)
Additions to property, plant and equipment during the first six months of 1997
of $4.4 million were related to capital asset expenditures necessary to
support the Company's manufacturing and distribution operations. The Company is
in need of additional office and distribution space at its Memphis location.
Management has entered into an agreement whereby the Company will lease a new
facility adjacent to its existing headquarters. This lease will be accounted for
under Statement of Financial Accounting Standards No. 13, "Accounting for
Leases," as an operating lease.
The Company has committed lines of credit totaling $95.9 million. At June 30,
1997, $85.4 million was outstanding under these committed lines of credit and
other short-term borrowings. The committed lines of credit consist primarily of
a $80.0 million uncollateralized revolving line of credit with a U.S. bank which
matures in July 2000.
The Company invests available funds in short-term investment grade instruments,
certificates of deposit or direct or guaranteed obligations of the United States
of America. These short-term investments are available to fund the Company's
working capital requirements and acquisitions of capital assets.
16
<PAGE> 17
FACTORS THAT MAY AFFECT FUTURE OPERATING RESULTS AND FINANCIAL CONDITION
The Company's future operating results and financial condition are subject to
risks and uncertainties, including (without limitation) the following matters:
Regulatory Clearances. The Company manufactures devices that are subject to the
regulations of the FDA and, in some cases, to the regulations of foreign
governmental authorities. In particular, such devices are subject to marketing
clearance by the FDA before sales can be made in the United States. The process
of obtaining marketing clearances can be time consuming, and there can be no
assurance that all necessary clearances will be granted to the Company with
respect to new devices or that the FDA review will not involve delays adversely
affecting the marketing and sale of new products and devices by the Company. The
enforcement of FDA regulations depends heavily on administrative interpretation,
and there can be no assurance that future interpretations made by the FDA or
other regulatory bodies, with possible retroactive effect, will not adversely
affect the Company. The Company cannot predict the extent or impact of future
foreign, federal, state or local legislation or regulation.
Potential Impact of Health Care Cost Containment Proposals on Profitability. In
recent years, the cost of health care has risen significantly, and there have
been numerous proposals by legislators, regulators and third party health care
payers to curb these cost increases in the United States and Europe. Some of
these proposals have involved limitations on the amount of reimbursement for
specific surgical procedures. These proposals have been adopted in some cases.
The Company is unable to predict what changes will be made in the reimbursement
methods utilized by third-party health care payers. In addition, hospitals and
other health care providers have become increasingly cost sensitive. To date,
the Company does not believe that such health care cost containment proposals
have negatively affected the profitability or growth of its business; however,
the Company is not able to predict the future effect of these proposals on its
business.
Product Obsolescence. Spinal implant and other devices are subject to continuous
improvements and modifications and typically are rendered obsolete within a few
years. Success, therefore, requires any medical device company to devote
substantial resources to continued product development. The Company maintains
active research and development programs and has been successful in developing
or acquiring new products in the past. There can be no assurance that the
Company will be able to develop and introduce or acquire new products that will
enable it to remain competitive in the future.
Product Liability; Insurance. In recent years, physicians, hospitals, and other
participants in the health care industry have become subject to an increasing
number of lawsuits alleging malpractice, product liability or asserting related
legal theories, many of which involve large claims and significant defense
costs. The Company currently maintains liability insurance intended to cover
such claims, although there can be no assurance that the coverage limits of such
insurance policies will be adequate or that all amounts will ultimately be
collected from each insurer providing the applicable policy. Such insurance is
expensive, difficult to obtain and may not be available in the future on
acceptable terms or at all. The Company is currently involved in product
liability litigation. (See Note 5 to the Consolidated Financial Statements.)
17
<PAGE> 18
There can be no assurance that additional claims will not be asserted against
the Company in the future. A successful future claim or aggregation of future
claims brought against the Company in excess of insurance coverage could have a
material adverse effect upon the financial condition, results of operations
and/or cash flows of the Company. Claims against the Company, regardless of
their merit or eventual outcome, may also have a material adverse effect upon
the reputation and business of the Company.
Competition. Worldwide, there are a number of firms producing spinal implant
devices. The Company currently competes with a number of firms with financial,
marketing and technical resources comparable to or greater than those of the
Company. Because of the growth of the number of spinal fusion procedures
performed in recent years, a number of companies, including those active in
producing various orthopaedic and neurological products and having financial,
marketing and technical resources significantly greater than those of the
Company, have begun producing spinal implant devices. The Company anticipates
that additional companies may also begin such production.
Retention of Personnel. The Company is highly dependent upon its senior
management, and the competition for qualified management personnel is intense.
The loss of key personnel or an inability to attract, retain and motivate such
persons could adversely affect the business and prospects of the Company. There
can be no assurance that the Company will be able to retain its existing senior
management personnel or to attract additional qualified personnel if needed. The
Company also depends on its contractual relationships with certain physicians
for product ideas, research and advice. There can be no assurance that the
Company will be able to maintain and develop such relationships.
Global Market Risks. A significant portion of the Company's revenue is derived
from its international operations. As a result, the Company's operations and
financial results could be affected by international factors, such as changes in
foreign currency exchange rates or weak economic conditions in the foreign
markets in which the Company distributes its products.
Intellectual Property. The Company is dependent on its proprietary intellectual
property and attempts to protect such intellectual property through patents,
licensing, trade secrets and proprietary know-how. In the medical device
industry, challenges by third parties regarding intellectual property rights
occur frequently. Such challenges may result in litigation which is often
complex and expensive. There can be no assurance that the Company's proprietary
rights will not be challenged, rendered unenforceable or circumvented and that
pending or future patent or trademark applications will be granted.
18
<PAGE> 19
PART II -- OTHER INFORMATION
Item 1. LEGAL PROCEEDINGS
The Company is involved from time to time in litigation on various matters which
are routine to the conduct of its business, including product liability and
intellectual property cases.
PRODUCT LIABILITY LITIGATION
Beginning in 1994, the Company and other spinal implant manufacturers were named
as defendants in a number of product liability lawsuits brought in various
federal and state courts around the country. These lawsuits allege that
plaintiffs were injured by spinal implants manufactured by the Company and
others. Although the plaintiffs have advanced claims under many different legal
theories, the essence of their claims appear to be that the Company (including
Sofamor and its former U.S. distributor) marketed some of its spinal systems for
pedicle fixation in contravention of Food & Drug Administration ("FDA") rules
and regulations (governing marketing and labeling), that pedicle fixation has
not been proven safe and effective in the context of FDA labeling standards,
that some or all of the spinal systems are defectively designed and
manufactured, and that plaintiffs have suffered a variety of injuries as a
result of their physicians' use of such systems in pedicle fixation. The Company
has also been named as a defendant in a number of lawsuits instituted by
plaintiffs who have received spinal implants manufactured by other manufacturers
and in which the Company is alleged to have participated in a conspiracy among
doctors, manufacturers, hospitals, teaching institutions, professional societies
and others to promote, in violation of applicable law, the use of spinal
implants.
In a number of cases, plaintiffs have sought to proceed as representatives of
classes of spinal implant recipients. All efforts to obtain class certification
have been denied or withdrawn. Some plaintiffs have filed individual lawsuits,
whereas other lawsuits list multiple plaintiffs and, in certain instances,
multiple lawsuits have been filed on behalf of the same individual plaintiffs.
Plaintiffs typically seek relief in the form of monetary damages, often in
unspecified amounts. Many of the plaintiffs only allege as monetary damages an
amount in excess of the jurisdictional minimum for the court in which the case
has been filed. A few suits also name as defendants various officers and
directors of the Company.
To date, approximately two thousand eight hundred (2,800) plaintiffs have joined
in lawsuits against the Company. The majority of these plaintiffs filed their
claims in 1995. The Company is also named as a defendant in lawsuits involving
about two thousand six hundred (2,600) claimants where the Company is alleged to
have conspired with competitors and others illegally to promote the use of
spinal implant systems.
The Company believes that it has defenses, including, without limitation,
defenses based upon the failure of a cause of action to exist where no
malfunction of the implant has occurred or the plaintiff has suffered no injury
attributable to the Company's product, the expiration of the applicable statute
of limitations and the learned intermediary defense. The Company has asserted
and will continue to assert these defenses primarily through the filing of
dispositive
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<PAGE> 20
motions. The Company believes that all product liability lawsuits currently
pending against it are without merit and will continue to defend them
vigorously.
FEDERAL MULTIDISTRICT LITIGATION (MDL 1014)
On August 4, 1994, the Federal Judicial Panel for Multidistrict Litigation
ordered all federal court lawsuits to be transferred to and consolidated for
pretrial proceedings, including the determination of class certification, in the
United States District for the Eastern District of Pennsylvania in Philadelphia
(the "Multidistrict Litigation"). Lawsuits filed in federal court after August
4, 1994, have also been transferred to and consolidated in the Multidistrict
Litigation in the Eastern District of Pennsylvania. In addition, a number of
lawsuits filed in state courts around the country were removed to federal courts
and then transferred into the Multidistrict Litigation. On February 22, 1995,
Chief Judge Emeritus, Louis C. Bechtle, denied class certification. A large
number of plaintiffs filed individual lawsuits as a result of the denial of
class certification. In some instances lawsuits that had been removed and
transferred into the Multidistrict Litigation have been remanded to the state
courts in which they were filed because there was no federal court jurisdiction.
Currently, the Company is a defendant in approximately one thousand (1,000)
individual claims and one thousand (1,000) conspiracy claims consolidated in the
Multidistrict Litigation. On August 22, 1996, Judge Bechtle dismissed without
prejudice plaintiffs' conspiracy claims. Most plaintiffs asserting conspiracy
claims in the Multidistrict Litigation have filed amended or new complaints. It
is not possible to determine at this time precisely how many of these conspiracy
complaints will be reasserted or the number of additional plaintiffs that may
file new lawsuits. On April 16, 1997, Judge Bechtle dismissed conspiracy claims
alleging fraud on the FDA, but deferred the remaining conspiracy claims for
later consideration by the federal trial courts to whom the cases will be
remanded for trial.
Discovery has been completed in a number of the federal court cases and is
continuing in the remainder. It is anticipated that the first cases to be
returned for trial to the federal court in which they were filed will be
remanded beginning in August 1997. It is not now possible to determine when the
first federal court cases will be tried.
STATE COURT LITIGATION
A number of cases filed in state courts were not eligible for removal and
transfer into the Multidistrict Litigation. Currently, there are approximately
one thousand eight hundred (1,800) individual claims pending against the Company
in several courts around the country, principally in Tennessee, Oklahoma, Texas
and Pennsylvania. In addition, there are approximately one thousand six hundred
(1,600) conspiracy claims pending in state courts.
Approximately one thousand five hundred fifty (1,550) plaintiffs who had joined
together in several complaints which had been removed to the Multidistrict
Litigation proceedings, have had their cases remanded to the state court in
Memphis, Tennessee, where they were originally filed when it was determined that
the federal court lacked jurisdiction over their claims. The presiding state
court judge in Memphis has established a case management plan which calls for
the preparation of eight representative cases for pretrial preparation and
trial.
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<PAGE> 21
Discovery is proceeding in all remaining state court cases. Some state cases
have been given trial dates in 1997. It is anticipated that a number of other
state court cases around the country may be scheduled for trial in 1997,
although delays in trial dates are common. Trials in the Memphis proceedings are
scheduled to commence in January of 1998.
ACROMED CORPORATION PROPOSED SETTLEMENT
In December 1996, AcroMed Corporation ("AcroMed"), a spinal implant manufacturer
and a defendant in many of the cases pending in the Multidistrict Litigation,
and the Plaintiff's Legal Committee in the Multidistrict Litigation announced
that they had entered into a conditional settlement regarding all product
liability claims involving the use of AcroMed devices to achieve pedicular
fixation with screws in spinal fusion surgery. Under the terms of the proposed
settlement, AcroMed will establish a settlement fund consisting of $100 million
in cash plus the proceeds of its product liability insurance policies. In
January 1997, the parties submitted a formal class settlement agreement and
related documentation for approval by Judge Bechtle. Judge Bechtle is currently
considering whether to certify the proposed settlement class and the fairness,
adequacy and reasonableness of the proposed settlement. All federal court
proceedings involving AcroMed devices have been stayed pending final
consideration of the proposed settlement.
INSURANCE
All of the insurance carriers for policy periods in which these claims have been
made have asserted reservation of rights, but have not denied coverage to the
Company. To date, the cost of defending these claims has been reimbursed by
certain of the primary and excess carriers, and the Company is actively engaged
in discussions concerning the recovery of amounts currently due and owing from
all other carriers. The Company believes that these receivables are recoverable
under the terms of the Company's policies. The Company's insurance policies are
reduced by the costs of defense, except for a policy issued by Royal Surplus
Lines Insurance Co. ("Royal") covering the 12-month period that began in
November 1995. The Company estimates that the litigation may continue for
several years and, if so, the cost to defend and conclude these lawsuits is
likely to exhaust its insurance coverage. Royal brought an action in December
1996 in the Federal District Court for the Middle District of Tennessee
(Nashville Division) seeking a declaratory judgment as to, among other things,
whether the policy covers lawsuits which have been reported to the insurer
during the policy period. The Company has filed its answer and counterclaim in
the Royal lawsuit. In addition, the Company has initiated its own declaratory
judgment lawsuit against Royal in the Federal District Court located in Memphis,
Tennessee. This lawsuit seeks a declaration of coverage and immediate payment of
the outstanding balance of amounts due from Royal. Based on the Company's
motion, Royal's lawsuit has been transferred to the Federal District Court in
Memphis Tennessee. This litigation is in the preliminary stages. The Company
believes that Royal's claims are without merit and will defend them vigorously.
As is common in the insurance industry, the Company's insurance policies
covering product liability claims must be renewed annually. Although the Company
has been able to obtain insurance coverage relating to product liability claims
at a cost and on other terms and conditions
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<PAGE> 22
that are acceptable to the Company, there can be no assurance that in the future
it will be able to do so.
The Company's 1996 financial results reflect a pre-tax charge relating to costs
associated with the product liability litigation described above. The costs
provided for include, but are not limited to, legal fees paid or anticipated to
be paid and other costs related to the Company's defense and conclusion of these
matters.
The actual costs to the Company could differ from the estimated charge and will
be dependent upon a number of factors that will not be known for some time,
including, among other things, the resolution of defense motions and the extent
of further discovery. Although an adverse resolution of the lawsuits could have
a material effect on the Company's results of operations in future periods, the
Company does not believe that these matters will in the future have a material
adverse effect on its consolidated financial position. The Company is unable to
predict the ultimate outcome or the financial impact of the product liability
litigation.
SECURITIES LAWS ACTIONS
Beginning in April 1994, the Company and four of its officers and directors were
named in five shareholder lawsuits filed in the United States District Court in
Memphis, Tennessee. Four of the lawsuits purport to be class actions. All of the
lawsuits were consolidated into one case in the United States District Court in
Memphis through an amended complaint which added four new individual defendants
who are either current or former directors of the Company. The lawsuit alleges
that the defendants made false and misleading statements and failed to disclose
material facts to the investing public and seeks money damages. The alleged
securities law violations are based on the claim that the defendants failed to
disclose that the Company sold its products illicitly, illegitimately and
improperly and to timely disclose facts concerning the termination of the former
United States distributor of Sofamor products, National Medical Specialties,
Inc. ("NMS"). The allegations relating to illicit and illegitimate sales of
product are, for the most part, copied from product liability complaints filed
against the Company and other manufacturers currently being coordinated in the
United States District Court for the Eastern District of Pennsylvania which are
referred to above. The allegations of improper sales relate to one of the
Company's selling programs which has been publicly disclosed since May 1991. The
allegations concerning NMS relate to the termination of the NMS distribution
agreement covering Sofamor products in the United States. On October 3, 1995,
the United States District Court Judge in Memphis dismissed with prejudice the
entire case against the Company and each of the individual defendants. The
plaintiffs have appealed the dismissal to the United States Court of Appeals for
the Sixth Circuit, which has not yet ruled on this appeal.
SPANISH DISTRIBUTOR ACTION
In late September 1994, a Magistrate of the Commercial Court in Paris ruled in
favor of a former Spanish distributor of Sofamor's products on a claim of
wrongful termination of the distribution agreement in 1992. Prior to June 1993,
an accrual was established, with a related charge to earnings, for this pending
litigation. In June 1993, the Company also established a separate indemnity with
respect to potential losses resulting from such lawsuit and placed in escrow
shares issued to the former Sofamor shareholders pending the final outcome of
this lawsuit. The
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<PAGE> 23
$3.0 million award (including interest) rendered by the French Magistrate
exceeded the pre-established accrual. As a result, the Company recorded an
expense of $2.2 million for the non-recurring litigation award during the third
and fourth quarters of 1994. The Company filed an appeal which involves a
complete retrial on all issues. The former Spanish distributor has filed its
papers in the appeal and seeks additional damages; the Company seeks to have the
decision of the Commercial Court reversed. A hearing on the appeal is currently
scheduled for the fourth quarter of 1997.
The Company does not believe the Securities Laws Actions or the Spanish
Distributor Action, described above, will have a material adverse effect on its
consolidated financial position, results of operations or cash flows because of,
among other reasons, the facts and circumstances existing with respect to each
action, the Company's belief that these actions are without merit, certain
defenses available to the Company and the availability of insurance in the
Securities Laws Actions.
See Part I, Item 2, "Management's Discussion and Analysis of Results of
Operations and Financial Condition--Factors That May Affect Future Operating
Results and Financial Condition--Product Liability; Insurance and Intellectual
Property."
Item 4. Submission of Matters to a Vote of Security Holders
a) The Company's annual shareholders' meeting was held on
April 29, 1997, to elect the directors of the Company for
the ensuing year and to approve the Sofamor Danek Group, Inc.
Long-Term Incentive Plan, as amended.
b) The following directors were elected at the Annual Meeting of
Shareholders:
<TABLE>
<CAPTION>
For Withheld
---------- --------
<S> <C> <C>
E. R. Pickard 21,439,751 247,896
James J. Gallogly 21,439,484 248,163
L. D. Beard 21,435,477 252,170
George W. Bryan, Sr. 21,481,884 205,763
Robert A. Compton 21,481,884 205,763
Yves Paul Cotrel, M.D. 21,438,404 249,243
Samuel F. Hulbert, Ph.D. 21,480,784 206,863
Marie-Helene Plais, M.D. 21,424,732 262,915
George F. Rapp, M.D. 21,466,832 220,815
</TABLE>
c) The resolution passed was as follows:
Act upon a proposal to approve the Sofamor Danek Group, Inc.
Long-Term Incentive Plan, as amended.
For 11,446,083 Against 7,256,755 Abstain 53,509
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<PAGE> 24
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
a) Exhibit No. Description
----------- -----------
10.1 Fifth Amendment to Loan Agreement
between SunTrust Bank, Nashville, N.A.
and Sofamor Danek Group, Inc. dated
June 27, 1997.
10.2 Credit Agreement by and among Sofamor Danek
Group, Inc., The Lenders
Listed Herein, and SunTrust, Nashville,
N.A., As Agent dated July 22, 1997.
27 Financial Data Schedule
(For SEC use only)
b) Reports on Form 8-K
None.
24
<PAGE> 25
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SOFAMOR DANEK GROUP, INC.
(Registrant)
DATE: August 13, 1997 BY: /s/ E.R. Pickard
--------------------- ---------------------------------
E.R. Pickard
Chairman, Chief Executive Officer
and Director
(Principal Executive Officer)
DATE: August 13, 1997 BY: /s/ George G. Griffin, III
--------------------- -------------------------------
George G. Griffin, III
Executive Vice President
and Chief Financial Officer
(Principal Financial Officer)
25
<PAGE> 1
EXHIBIT 10.1
FIFTH AMENDMENT TO LOAN AGREEMENT
THIS FIFTH AMENDMENT TO LOAN AGREEMENT (the "Amendment") is entered into
this the 27th day of June, 1997 by and between SOFAMOR DANEK GROUP, INC., an
Indiana corporation (the "Borrower") and SUNTRUST BANK, NASHVILLE, N.A., a
national banking association (the "Lender").
RECITALS:
A. Borrower and Lender previously entered into that certain loan agreement
dated as of October 14, 1994 (as amended from time to time, the "Loan
Agreement"), in connection with a certain credit facility from Lender to
Borrower in the original principal amount of up to $40,000,000. Borrower and
Lender amended the Loan Agreement pursuant to an Amendment to Loan Agreement
effective June 30, 1995. Borrower and Lender further amended the Loan Agreement
pursuant to a Second Amendment to Loan Agreement and First Amendment to
Revolving Credit Optional Term Note dated October 11, 1995. Borrower and Lender
further amended the Loan Agreement pursuant to a Third Amendment to Loan
Agreement dated August 1, 1996. Borrower and Lender further amended the Loan
Agreement pursuant to a Fourth Amendment to Loan Agreement dated January 31,
1997.
B. In connection with the execution of the Loan Agreement, the Borrower
executed that certain Revolving Credit and Optional Term Note (as amended from
time to time, the "Note") in the original principal amount of $40,000,000. The
Note was amended pursuant to the Second Amendment to Loan Agreement and First
Amendment to Revolving Credit and Optional Term Note dated October 11, 1995. The
Note was further amended pursuant to the Second Amendment to Revolving Credit
and Optional Term Note dated August 1, 1996. The Note was further amended
pursuant to a Third Amendment to Revolving Credit and Optional Term Note dated
January 31, 1997.
C. Concurrently herewith the Borrower and Lender have amended the Note
pursuant to a Fourth Amendment to Revolving Credit and Optional Term Note dated
as of the date hereof.
D. Borrower and Lender have agreed to make certain amendments to the Loan
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the adequacy and receipt of which are hereby
acknowledged, the parties agree as follows:
1. Section 1 of the Loan Agreement concerning "Definitions," is amended as
follows:
The term "Maximum Amount" is deleted and the following is substituted in
lieu thereof to increase the principal amount available under the Loan
Agreement to $78,000,000:
<PAGE> 2
"Maximum Amount" means the principal amount of $78,000,000, which
is the maximum principal amount that may be outstanding at any time
under the Loan.
The term "Note" is deleted and the following is substituted in lieu
thereof, with the Exhibit A to the Loan Agreement amended according to the
Fourth Amendment to Revolving Credit and Optional Term Note and to increase
the principal amount thereof to $78,000,000:
"Note" means that certain Promissory Note in the form set forth
in Exhibit A hereto in the principal amount of up to $78,000,000,
including all amendments, extensions, increases and restatements
thereto and thereof, and all replacements and substitute notes
therefor.
2. Section 2.01 of the Loan Agreement concerning the "Revolving Credit Loan,"
is amended by deleting the reference therein to $60,000,000 and the term
"$78,000,000" is substituted in lieu thereof.
3. Section 7.12 of the Loan Agreement concerning "Financial Covenants" is
amended to the extent that the increased borrowings evidenced by this
Amendment shall not cause such covenants to be violated.
4. Borrower and Lender agree that Borrower's option to convert all or a
portion of revolving credit advances under the Loan Agreement to a Term
Loan (under Section 2.02 of the Loan Agreement) may not be exercised until
August 1, 1997.
5. Terms not defined herein shall have the meanings ascribed to such terms in
the Loan Agreement.
6. Except as amended herein, all other terms, provisions, agreements,
covenants, representations and warranties in the Loan Agreement shall
remain in full force and effect, and Borrower hereby reaffirms all of its
duties, obligations, covenants, agreements, representations and warranties
in the Loan Agreement, as amended.
7. Borrower represents, warrants and covenants that no Event of Default has
occurred and is continuing under the Loan Agreement and that no event has
occurred or other condition exists that would relieve Borrower of any of
its obligations to the Lender under the Loan Agreement, as amended.
8. This Amendment shall be governed by Tennessee law.
9. Borrower represents that the execution and performance of this Amendment
have been duly authorized by all necessary and appropriate corporate
action.
<PAGE> 3
10. This Amendment may be executed in multiple counterparts.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first set forth above.
LENDER: BORROWER:
SUNTRUST BANK, NASHVILLE, N.A. SOFAMOR DANEK GROUP, INC.
By: /s/ Bryan W. Ford By: /s/ Laurence Y. Fairey
-------------------------- --------------------------------
Title: Vice President Title: Executive Vice President
---------------------- ----------------------------
<PAGE> 1
EXHIBIT 10.2
CREDIT AGREEMENT
BY AND AMONG
SOFAMOR DANEK GROUP, INC.,
THE LENDERS LISTED HEREIN,
AND
SUNTRUST BANK, NASHVILLE, N.A.
AS AGENT
$80,000,000 REVOLVING CREDIT LOAN (INCLUDING SWING LINE,
FOREIGN CURRENCY BORROWINGS FACILITY
AND LETTER OF CREDIT FACILITY)
JULY 22, 1997
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
Article I. Definitions.....................................................................-1-
Section 1.01 Construction of Terms................................................-1-
Section 1.02 Definitions..........................................................-1-
Article II. The Credit....................................................................-13-
Section 2.01 Loan Facilities.....................................................-13-
Section 2.02 Letters of Credit Subcommitment.....................................-14-
Section 2.03 Swing Line Loan.....................................................-15-
Section 2.04 Interest Rates and Interest Payment Dates...........................-17-
Section 2.05 Borrowing Procedure.................................................-17-
Section 2.06 Use of Proceeds.....................................................-19-
Section 2.07 Participation.......................................................-19-
Section 2.08 Term of This Agreement..............................................-19-
Section 2.09 Payments to Principal Office; Debit Authority.......................-20-
Section 2.10 Prepayment..........................................................-20-
Section 2.11 Apportionment of Payments...........................................-22-
Section 2.12 Sharing of Payments, Etc............................................-22-
Section 2.13 Right of Offset, Etc................................................-22-
Section 2.14 Commitment Fee......................................................-23-
Section 2.15 Usury...............................................................-23-
Section 2.16 Interest Rate Not Ascertainable, Etc................................-23-
Section 2.17 Illegality..........................................................-24-
Section 2.18 Increased Costs.....................................................-24-
Section 2.19 Mitigation..........................................................-25-
Section 2.20 Increase in Revolving Credit Loan Commitments.......................-26-
Article III. Representations and Warranties...............................................-27-
Section 3.01 Corporate Existence.................................................-27-
Section 3.02 Power and Authorization.............................................-27-
Section 3.03 Binding Obligations.................................................-27-
Section 3.04 No Legal Bar or Resultant Lien......................................-27-
Section 3.05 No Consent..........................................................-27-
Section 3.06 Financial Condition.................................................-27-
Section 3.07 Investments, Advances, and Guaranties...............................-27-
Section 3.08 Liabilities and Litigation..........................................-28-
Section 3.09 Taxes; Governmental Charges.........................................-28-
Section 3.10 No Default..........................................................-28-
Section 3.11 Compliance with Laws, Etc...........................................-28-
Section 3.12 ERISA...............................................................-28-
Section 3.13 No Material Misstatements...........................................-28-
Section 3.14 Regulation U, Etc...................................................-28-
Section 3.15 Filings.............................................................-29-
Section 3.16 Title, Etc..........................................................-29-
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
Section 3.17 Personal Holding Company; Subchapter S..............................-29-
Section 3.18 Subsidiaries........................................................-29-
Section 3.19 No Burdensome Restrictions..........................................-29-
Article IV. Conditions Precedent..........................................................-30-
Section 4.01 Initial Conditions..................................................-30-
Section 4.02 All Borrowings......................................................-31-
Article V. Affirmative Covenants..........................................................-31-
Section 5.01 Financial Statements and Reports....................................-31-
Section 5.02 Annual Certificates of Compliance...................................-32-
Section 5.03 Taxes and Other Liens...............................................-33-
Section 5.04 Maintenance.........................................................-33-
Section 5.05 Further Assurances..................................................-33-
Section 5.06 Performance of Obligations..........................................-33-
Section 5.07 Insurance...........................................................-34-
Section 5.08 Accounts and Records................................................-34-
Section 5.09 Right of Inspection.................................................-34-
Section 5.10 Notice of Certain Events............................................-34-
Section 5.11 ERISA Information and Compliance....................................-34-
Section 5.12 Additional Guaranties...............................................-35-
Article VI. Negative Covenants............................................................-35-
Section 6.01 Debts, Guaranties, and Other Obligations............................-35-
Section 6.02 Liens...............................................................-35-
Section 6.03 Loans and Advances..................................................-36-
Section 6.04 Investments.........................................................-36-
Section 6.05 Sales and Leasebacks................................................-36-
Section 6.06 Nature of Business..................................................-36-
Section 6.07 Mergers, Consolidations, Etc........................................-37-
Section 6.08 Acquisitions........................................................-37-
Section 6.09 Inconsistent Agreements.............................................-37-
Section 6.10 Fiscal Year.........................................................-37-
Section 6.11 Transactions with Affiliates........................................-37-
Section 6.12 Negative Pledge to Other Persons....................................-37-
Article VII. Financial Covenants..........................................................-38-
Section 7.01 Financial Covenants.................................................-38-
Article VIII. Events of Default...........................................................-40-
Section 8.01 Events of Default...................................................-40-
Section 8.02 Remedies............................................................-42-
Section 8.03 Default Conditions..................................................-42-
Article IX. General Provisions............................................................-43-
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
Section 9.01 Notices.............................................................-43-
Section 9.02 Invalidity..........................................................-43-
Section 9.03 Survival of Agreements..............................................-43-
Section 9.04 Successors and Assigns..............................................-43-
Section 9.05 Waivers.............................................................-44-
Section 9.06 Cumulative Rights...................................................-44-
Section 9.07 Construction........................................................-44-
Section 9.08 Time of Essence.....................................................-44-
Section 9.09 Costs, Expenses, and Indemnification................................-44-
Section 9.10 Entire Agreement; No Oral Representations Limiting Enforcement......-44-
Section 9.11 Amendments..........................................................-45-
Section 9.12 Confidentiality.....................................................-45-
Section 9.13 Distribution of Information.........................................-45-
Section 9.14 Counterparts........................................................-45-
Article X. Jury Waiver....................................................................-45-
Section 10.01 Jury Waiver........................................................-45-
Article XI. Hazardous Substances..........................................................-45-
Section 11.01 Representation and Indemnity Regarding Hazardous Substances........-45-
Article XII. The Agent....................................................................-46-
Section 12.01 Appointment of Agent...............................................-46-
Section 12.02 Authorization of Agent with Respect to the Loan Documents..........-47-
Section 12.03 Agent's Duties Limited; No Fiduciary Duty..........................-48-
Section 12.04 No Reliance on the Agent...........................................-49-
Section 12.05 Certain Rights of Agent............................................-49-
Section 12.06 Reliance by Agent..................................................-50-
Section 12.07 Indemnification of Agent...........................................-50-
Section 12.08 The Agent in its Individual Capacity...............................-50-
Section 12.09 Holders of Notes...................................................-50-
Section 12.10 Successor Agent....................................................-51-
Section 12.11 Notice of Default or Event of Default..............................-51-
Section 12.12 Benefit of Agreement...............................................-52-
Section 12.13 Removal of Lender..................................................-53-
Article XIII. Guarantors..................................................................-54-
Section 13.01 Guarantors.........................................................-54-
</TABLE>
iii
<PAGE> 5
EXHIBITS
EXHIBIT A Form of Revolving Credit Note
EXHIBIT B Form of Foreign Currency Note
EXHIBIT C Form of Swing Line Note
EXHIBIT D Form of Letter of Credit Application
EXHIBIT E Form of Borrowing Requests
EXHIBIT F Form of Guaranty Agreements
EXHIBIT G Form of Certificate of Compliance
EXHIBIT H Form of Negative Pledge
EXHIBIT I Identification of Subsidiaries
EXHIBIT J Borrower's Investment Policy
iv
<PAGE> 6
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is made and entered into as of the 22nd day of July,
1997, by and between SOFAMOR DANEK GROUP, INC., an Indiana corporation (the
"Borrower"), SUNTRUST BANK, NASHVILLE, N.A. ("STB"), and the other banks and
lending institutions who become Lenders pursuant to Section 12.12 herein (STB
and such other banks and lending institutions are referred to collectively as
the "Lenders"), and SUNTRUST BANK, NASHVILLE, N.A., in its capacity as agent for
the Lenders and each successive agent for such Lenders as may be appointed from
time to time pursuant to Article XII herein (the "Agent").
RECITALS
A. The Borrower desires that the Lenders extend the Borrower credit
pursuant to the terms of this Credit Agreement.
B. The Lenders are willing to extend the Borrower credit pursuant to the
terms and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the parties hereto agree as follows:
Article I. Definitions.
Section 1.01 Construction of Terms. The terms defined in this article have
the meanings attributed to them in this article. Singular terms shall include
the plural as well as the singular, and vice versa. Words of masculine, feminine
or neuter gender shall mean and include the correlative words of other genders.
All references herein to a separate instrument are to such separate instrument
as the same may be amended or supplemented from time to time pursuant to the
applicable provisions thereof. All accounting terms not otherwise defined herein
have the meanings assigned to them, and all computations herein provided for
shall be made, in accordance with generally accepted accounting principles
applied on a consistent basis. All references herein to "generally accepted
accounting principles" refer to such principles as they exist at the date of
application thereof. All references herein to designated "Articles", "Sections"
and other subdivisions or to lettered Exhibits are to the designated Articles,
Sections and other subdivisions hereof and the Exhibits annexed hereto unless
the context otherwise clearly indicates. All Article, Section, other subdivision
and Exhibit captions herein are used for reference only and in no way limit or
describe the scope or intent of, or in any way affect, this Agreement.
Section 1.02 Definitions. As used in this Agreement, the following terms
shall have the following meanings, unless the context expressly otherwise
requires:
"Advance" or "Advances" shall mean any and all amounts advanced by
Lenders to or for the account of Borrower hereunder, including credit
extended under the Revolving Credit Loan or the Foreign Currency Loan and
all amounts advanced by the Swing Line
<PAGE> 7
Lender under the Swing Line Loan, including, without limitation, advances
of loan proceeds, overline payments (if any), and amounts evidenced by
Letters of Credit. The terms "Advance" and "Loan" are used interchangeably
in this Agreement.
"Affiliate" of any specified Person means any other Person which
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with such specified Person. For
purposes of this definition, "control" when used with respect to any
specified Person means the power to direct or cause the direction of the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and
the terms "controls" and "controlled" have meanings correlative to the
foregoing.
"Agent" means SunTrust Bank, Nashville, N.A. or its successor as
appointed pursuant to the provisions of Article XII herein.
"Agreement" means this Credit Agreement (including all exhibits
hereto) as the same may be modified, amended, or supplemented from time to
time.
"Applicable Commitment Fee" means: (i) if the Borrower's ratio of
Funded Debt to EBITDA is equal to or less than .875 to 1.0, 10 basis points
per annum; (ii) if the Borrower's ratio of Funded Debt to EBITDA is greater
than .875 to 1 but equal to or less than 1.125 to 1.0, 12.5 basis points
per annum; and (iii) if Borrower's ratio of Funded Debt to EBITDA is
greater than 1.125 to 1, 15 basis points per annum. The Applicable
Commitment Fee shall be determined and adjusted quarterly on the date by
which the Borrower is required to provide the officer's certificate in
accordance with the compliance certificates required to be delivered
pursuant to the terms of this Agreement.
"Applicable Margin" means: (i) if the Borrower's ratio of Funded Debt
to EBITDA is equal to or less than .875 to 1.0, 55 basis points per annum;
(ii) if the Borrower's ratio of Funded Debt to EBITDA is greater than .875
to 1.0 but equal to or less than 1.125 to 1.0, 62.5 basis points per annum;
and (iii) if Borrower's ratio of Funded Debt to EBITDA is greater than
1.125 to 1.0, 70 basis points per annum.
"Applicable Rate" means: (i) with respect to the Revolving Credit Loan
either the Base Rate Option or the LIBOR Option, as elected by Borrower;
(ii) with respect to the Foreign Currency Loan the applicable Foreign
Currency Rate; and (iii) with respect to the Swing Line Loan, the Swing
Line Rate.
"Assignment and Acceptance" means an Assignment and Acceptance form
executed by a Lender assigning its interest in the Revolving Credit Loan
(other than as participation), to an Eligible Assignee in a form reasonably
satisfactory to Agent.
"Bankruptcy Code" means the Bankruptcy Code of 1976, as amended and as
in effect from time to time (11 U.S.C. ss. 101 et. seq.).
-2-
<PAGE> 8
"Base Rate" means the rate of interest most recently announced by
Agent as its reference, base, or prime lending rate, as the case may be,
for Dollar loans in the United States, as in effect from time to time (any
changes in such rate to be effective as of the date of any change in such
rate). The Agent's "prime," "reference" or "base" lending rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. Agent may make commercial loans or other
loans at rates of interest at, above, or below the Agent's prime lending
rate.
"Base Rate Option" shall mean that rate of interest equal to the
higher of (i) the Base Rate; or (ii) the Federal Funds Rate (as in effect
from time to time) plus one-half of one percent (1/2%) per annum. The Base
Rate Option is determined daily.
"Borrower" means Sofamor Danek Group, Inc. and its permitted
successors and assigns.
"Borrowing Request" means a request in the applicable form of
collective Exhibit E hereto submitted by Borrower for an Advance under this
Agreement.
"Business Day" means any day other than a Saturday, a Sunday, a legal
holiday or day on which commercial banks are authorized to close for
business in the State of Tennessee or the State of New York; provided that
in the case of an Advance as a LIBOR Rate Loan in U.S. Dollars, such day is
also a day on which dealings between banks are carried on in U.S. dollar
deposits in the London interbank market.
"Closing Date" means the 22nd day of July, 1997.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and any successor statute.
"Conditions Precedent" means those matters or events that must be
completed or must occur or exist prior to Lenders' being obligated to fund
any Advance, including, but not limited to, those matters described in
Article IV hereof.
"Debt" means, with respect to any Person, all obligations of such
Person, contingent or otherwise, which in accordance with GAAP would be
classified on a balance sheet of such Person as liabilities, and in
addition such term shall include, but without duplication: (a) liabilities
secured by any mortgage, pledge or lien existing on Property owned by such
Person and subject to such mortgage, pledge or lien, whether or not the
liability secured thereby shall have been assumed by such Person, (b) all
indebtedness and other similar monetary obligations of such Person, (c) all
guaranties, obligations in respect of letters of credit, endorsements
(other than endorsements of negotiable instruments for purposes of
collection in the ordinary course of business), obligations to purchase
goods or services for the purpose of supplying funds for the purchase or
payment of Debt of others and other contingent obligations in respect of,
or to purchase, or otherwise acquire, or advance funds for the purchase of,
Debt of others, (d) all obligations of such Person to indemnify another
-3-
<PAGE> 9
Person to the extent of the amount of indemnity, if any, which would be
payable by such Person at the time of determination of Debt and (e) all
obligations of such Person under capital leases.
"Default Rate" means the Applicable Rate then in effect, plus two
percent (2%) per annum; provided, that for any LIBOR, Foreign Currency Rate
or Swing Rate Advance, at the end of the applicable Interest Period of such
Advance, interest shall then accrue at a rate equal to the Base Rate plus
two percent (2.00%) per annum.
"Default" or "Event of Default" means the occurrence of any of the
events specified in Section 8.01 hereof.
"Default Conditions" or "Default Condition" means the occurrence of
any of the events specified in Section 8.03 hereof.
"EBITDA" means consolidated net income plus interest expense, taxes,
depreciation and amortization, all calculated on a consolidated basis in
accordance with GAAP. Net income shall exclude the one-time deduction of a
reserve for litigation expenses in an amount of $50,000,000 in the fiscal
quarter ending December 31, 1996.
"Eligible Assignee" means: (i) with the prior consent of Borrower and
Agent, which will not be unreasonably withheld or delayed, a commercial
bank or financial institution having total assets in excess of
$1,000,000,000 or any commercial finance or asset-based lending Affiliate
of any such commercial bank or financial institution which has complied
with Section 12.12 herein, or (ii) any Lender, or an Affiliate thereof. The
consent of Borrower shall not be a condition precedent to assignment to an
Eligible Assignee if an Event of Default exists and is continuing.
"Environmental Law" means any federal, state, or local law, statute,
ordinance, or regulation applicable or pertaining to health, industrial
hygiene, waste materials, removal of waste materials, oil, gas, underground
storage tanks, Hazardous Substances, other environmental conditions on,
under, or affecting any of the Borrower's Property.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, including (unless the context otherwise
requires) any rules or regulations promulgated thereunder.
"Facing Fee" means the product of (a) the fee as specified in the
letter between Agent and the Borrower dated June 4, 1997 (as such fee
letter may be amended), multiplied by (b) the face amount of any Letter of
Credit.
"Federal Funds Rate" means for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with member banks of the
Federal Reserve System arranged by Federal funds brokers for such day, as
published on the next succeeding Business Day by the
-4-
<PAGE> 10
Federal Reserve Bank of Atlanta, or, if such rate is not so published for
any day that is a Business Day, the average of the quotations for such day
on such transactions received by the Agent from three (3) Federal funds
brokers of recognized standing selected by the Agent.
"Financial Statements" means (i) the consolidated financial statement
or statements of Borrower and its Subsidiaries, described or referenced in
Section 3.06 hereof and delivered with this Agreement to Agent for
distribution to Lenders, and (ii) subsequent financial statements required
to be provided pursuant to Section 5.01(a) and (b) of this Agreement.
"Fiscal Quarter" means each of the quarters of the Fiscal Year ending
on March 31, June 30, September 30 and December 31.
"Fiscal Year" or "Annually" means the twelve-month accounting period
ending on December 31.
"Foreign Currencies" or "Foreign Currency" means individually and
collectively, as the context shall require, each of the following
currencies, if offered and subject to availability to all Lenders: (i)
Japanese Yen, French Francs, Australian Dollars, Canadian Dollars, German
Deutsche Marks, United Kingdom Pounds Sterling, and Spanish Pesetas; and
(ii) at the option of all Lenders, any other currency which is freely
transferrable and convertible into United States Dollars; provided,
however, no such other currency under subsection (ii) shall be included as
a Foreign Currency unless (A) Borrower has submitted a written request to
the Agent and Lenders that it be so included, and (B) Agent and all Lenders
have agreed to such request.
"Foreign Currency Advance" means an Advance under the Foreign Currency
Note.
"Foreign Currency Business Day" shall mean any Business Day, excluding
a day on which trading is not carried on by banks in deposits of the
applicable Foreign Currency in the applicable interbank market for such
Foreign Currency.
"Foreign Currency Commitment" means relative to any Lender, such
Lender's obligation to make an Advance pursuant to Section 2.01(b) of this
Agreement.
"Foreign Currency Loan" means the aggregate amount of all outstanding
Advances under the Foreign Currency Notes.
"Foreign Currency Note" or "Foreign Currency Notes" means, as the
context may require: (a) any of the Foreign Currency Notes executed by the
Borrower payable to the order of any Lender, substantially in the form of
Exhibit B hereto, originally in the principal amounts each such Lender's
Pro Rata Share bears to the Maximum Total Amount of the Foreign Currency
Loan, evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the outstanding Foreign Currency Loan, as each such Foreign
Currency Note may from time to time be amended, increased, decreased,
extended, renewed, restated and/or changed in any way.
-5-
<PAGE> 11
"Foreign Currency Commitment" means, relative to any Lender, such
Lender's obligation to make a Foreign Currency Advance pursuant to Section
2.01(b) of this Agreement.
"Foreign Currency Rate" means the offered rate for deposits in such
Foreign Currencies for the one-month Interest Rate Period with respect to
any Advance at a Foreign Currency Rate as quoted on the Telerate System
subscribed to by Agent, and which appears on Telerate Page 3750 of the
Telerate System Incorporated Service for German Deutsche Marks, Japanese
Yen, and United Kingdom Pounds Sterling, and Telerate Page 3740 of the
Telerate System Incorporated Service for Australian Dollars, Canadian
Dollars, French Francs, and Spanish Pesetas (or such other page of the
Telerate System on which any applicable Foreign Currency then appears), as
of 11:00 a.m., London time, two (2) Business Days prior to the beginning of
the applicable one-month Interest Period (or, in the case of United Kingdom
Pounds Sterling, on the first day of such Interest Rate Period). If any of
such one-month Interest Rate Period pertaining to an applicable Foreign
Currency is unavailable on the Telerate System, then such rate shall be
determined by and based on any other interest rate reporting service of
generally recognized standing designated by the Agent to the Borrower. The
Foreign Currency Rate may be adjusted by Agent for any applicable reserve
requirements or withholding taxes.
"Foreign Currency Rate Option" means that rate of interest equal to
the Foreign Currency Rate for the applicable Interest Rate Period plus the
Applicable Margin.
"Funded Debt" means, with respect to Borrower and its Subsidiaries,
without duplication, the sum of (i) all indebtedness for money borrowed,
(ii) purchase money indebtedness, (iii) principal portion of capitalized
leases, (iv) the present value of all minimum lease payment commitments
with respect to operating leases of the Borrower and its Subsidiaries,
determined based upon a discount rate of 10% in accordance with the
discounted present value analytical methodology, (v) outstandings under
asset securitization vehicles, (vi) conditional sales contracts and similar
title retention debt instruments, including any current maturities of such
indebtedness which by its terms matures more than one year from the date of
any calculation thereof and/or which is renewable or extendible at the
option of the obligor to a date beyond one year form such date, (vii)
commercial letters of credit and the maximum amount of all performance and
standby letters of credit issued or bankers' acceptances created for the
account of the Borrower or any Subsidiary, (viii) all Funded Debt of other
entities or persons which has been guaranteed by the Borrower or any
Subsidiary or which is supported by a letter of credit issued for the
account of the Borrower or any Subsidiary, (ix) all Funded Debt of any
partnership, limited liability company or unincorporated joint venture to
the extent that the Borrower or any Subsidiary is legally obligated with
respect thereto, net of any assets of such partnership, limited liability
company or joint venture, (x) liability under any bond, indenture, note or
similar instrument, and (xi) the redemption amount with respect to any
redeemable preferred stock of the Borrower or any Subsidiary required to be
redeemed within the next 12 months. Funded Debt shall exclude that certain
existing Non-Negotiable Subordinated Convertible Note dated January 11,
1994 executed by the Borrower in favor of
-6-
<PAGE> 12
Gary K. Michelson.
"Funding Account" shall mean that certain account maintained by
Borrower with Agent, bearing account no. 7020082207.
"GAAP" means generally accepted accounting principles in the United
States.
"Guarantors" and "Guarantor" mean each and all Significant
Subsidiaries of Borrower, whether now existing or hereafter created or
existing.
"Guaranty" and "Guaranties" means the guaranty agreements executed by
each Guarantor in substantially the form as set forth in Exhibit F.
"Hazardous Substances" means those substances included within the
definition of hazardous substances, hazardous materials, toxic substances,
or solid waste under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 U.S.C. ss. 9601, et seq.; the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. ss. 6901, et
seq.; the Hazardous Materials Transportation Act, 49 U.S.C. ss. 1801, et
seq.; any applicable state law and in the regulations promulgated pursuant
to such acts and laws, and such other substances, materials, and waste
which are or become regulated under any Environmental Law.
"Interest Rate Period" or "Interest Period" means:
(a) with respect to any Advance at the LIBOR Option:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Advance at
the LIBOR Option and ending one, two, three or six months thereafter,
as selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Advance at the LIBOR
Option and ending one, two, three or six months thereafter, as
selected by the Borrower by irrevocable notice to the Agent not less
than three (3) Business Days prior to the last day of the then current
Interest Period with respect thereto;
provided that all of the foregoing provisions relating to Interest Periods
for a LIBOR Option are subject to the following:
(1) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
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(2) any Interest Period that would otherwise extend beyond the
Maturity Date shall end on the Maturity Date; and
(3) 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 end on the last Business Day of a calendar month.
(b) with respect to any Advance at a Foreign Currency Rate:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Advance at
the Foreign Currency Rate and ending one month thereafter, as selected
by the Borrower in its notice of borrowing or notice of conversion, as
the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Advance at the
Foreign Currency Rate and ending one month thereafter, as selected by
the Borrower by irrevocable notice to the Agent not less than three
(3) Foreign Currency Business Days prior to the last day of the then
current Interest Period with respect thereto;
provided that all of the foregoing provisions relating to Interest Periods
for a Foreign Currency Advance are subject to the following:
(1) if any Interest Period would otherwise end on a day that is
not a Foreign Currency Business Day, such Interest Period shall be
extended to the next succeeding Foreign Currency Business Day unless
the result of such extension would be to carry such Interest Period
into another calendar month in which event such Interest Period shall
end on the immediately preceding Foreign Currency Business Day;
(2) any Interest Period that would otherwise extend beyond the
Maturity Date shall end on the Maturity Date;
(3) any Interest Period that begins on the last Foreign Currency
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 end on the last Foreign Currency Business Day
of a calendar month.
"Lender" or "Lenders" means STB, the other banks and lending
institutions listed on the signature pages hereof and each permitted
assignee thereof, if any, pursuant to Section 12.12, but shall not include
any participant.
"Letter of Credit Application Agreement" means that certain
Application and Agreement for Issuance of a Letter of Credit in the form of
Exhibit D hereto or any other
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similar form required by the Agent appropriately completed by the Borrower
pursuant to Section 2.02(a) herein.
"Letter of Credit Subcommitment" means relative to any Lender, such
Lender's obligation under a Letter of Credit pursuant to Section 2.02 of
this Agreement.
"Letter of Credit Fee" means an amount equal to the product of: (a)
the Applicable Margin per annum in effect on the first day of each period
of calculation multiplied by (b) the face amount of the Letter of Credit,
but in any event no less than Five Hundred Dollars ($500).
"Letters of Credit" has the same meaning as set forth in Section 2.02
herein.
"LIBOR Rate" means the offered rates for deposits in U.S. Dollars for
the applicable Interest Rate Period, selected by Borrower in accordance
with the terms of Section 2.05, as quoted on the Telerate System subscribed
to by Agent, and which appears on Telerate Page 3750 as of 11:00 a.m.,
London time, two (2) Business Days prior to the beginning of any applicable
Interest Rate Period. If any of such one-month or two-month or three-month
or six-month rate, as the case may be, is unavailable on the Telerate
System, then such rate shall be determined by and based on any other
interest rate reporting service of generally recognized standing designated
by the Agent to the Borrower. The LIBOR Rate may be adjusted by Agent for
any applicable reserve requirements.
"LIBOR Option" means that rate of interest equal to the LIBOR Rate for
the applicable Interest Rate Period plus the Applicable Margin.
"Lien" means any interest in Property securing an obligation owed to,
or a claim by, a Person other than the owner of the Property, whether such
interest is based on the common law, statute, or contract, and including,
but not limited to, the lien or security interest arising from a mortgage,
encumbrance, pledge, security agreement, conditional sale, or trust receipt
or a lease, consignment, or bailment for security purposes. The term "Lien"
shall include reservations, exceptions, encroachments, easements,
rights-of-way, covenants, conditions, restrictions, leases, and other title
exceptions and encumbrances adversely affecting the value of the Property.
For the purposes of this Agreement, Borrower shall be deemed to be the
owner of any Property that Borrower has acquired or holds subject to a
conditional sale agreement, financing lease, or other arrangement pursuant
to which title to the Property has been retained by or vested in some other
Person for security purposes.
"Loan" or "Loans" means any borrowing by Borrower under this
Agreement, and/or any extension of credit by Lenders or Swing Line Lender
to the Borrower pursuant to this Agreement, the Revolving Credit Loan,
Letters of Credit, the Foreign Currency Loan, the Swing Line Loan, or any
other Loan Document, including any renewal, amendment, extension, or
modification thereof.
"Loan Documents" means, collectively, each document or certificate
executed,
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furnished or delivered in connection with this Agreement (whether before,
at, or after the Closing Date), including, without limitation, this
Agreement, the Revolving Credit Notes, the Foreign Currency Notes, the
Swing Line Note, the Guaranties, the Negative Pledge, and all other
documents, certificates, reports, and instruments that this Agreement
requires or that were executed or delivered (or both) at Agent's request.
"Majority Lenders" means those Lenders with an aggregate Pro Rata
Share equal to or greater than 66 2/3%.
"Material" or "material" as used herein shall be determined with
respect to Borrower on a consolidated basis.
"Maturity Date" for the Revolving Credit Loan (including the Letter of
Credit Subcommitment), the Foreign Currency Loan and the Swing Line Loan
shall mean July 22, 2000.
"Maximum Total Amount" means: (i) with respect to the Revolving Credit
Loan, the principal amount of $80,000,000, less the aggregate face amounts
of all outstanding Letters of Credit, less the aggregate outstanding
principal amount of the Swing Line Note, less the aggregate outstanding
principal amount of all borrowings under the Foreign Currency Loan; (ii)
with respect to the Foreign Currency Loan, the principal amount of
$15,000,000; (iii) with respect to the Letters of Credit Subcommitment,
$5,000,000; and (iv) with respect to the Swing Line Loan, the principal
amount of $5,000,000.
"Moody's" means Moody's Investors Services, Inc.
"Negative Pledge" means that certain Negative Pledge Agreement dated
as of the date hereof executed by Borrower and the Significant Subsidiaries
in favor of Lender, in the form of Exhibit H hereto, including all
amendments and restatements thereof.
"Net Worth" means, for Borrower and its Subsidiaries, determined on a
consolidated basis, the sum of stockholders' common equity, preferred stock
and minority interest, less treasury stock, less all stockholder notes
receivable, all as determined in accordance with GAAP.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Permitted Encumbrances" means: (i) taxes, assessments, and other
governmental charges that are not delinquent or that are being contested in
good faith by appropriate proceedings duly pursued; (ii) mechanic's,
materialmen's, contractors', landlords', or other similar Liens arising in
the ordinary course of business, securing obligations that are not
delinquent or that are being contested in good faith by appropriate
proceedings duly pursued; and (iii) restrictions, exceptions, reservations,
easements, and restrictive covenants affecting any of Borrower's real
property and that do not materially and adversely affect such real
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property.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated
organization, government, or any agency or political subdivision thereof,
or any other form of entity.
"Plan" means any employee benefit or other plan established or
maintained, or to which contributions have been made, by the Borrower or
any Subsidiary and covered by Title IV of ERISA or to which Section 412 of
the Code applies.
"Principal Office" means the principal office of the Agent located at
201 Fourth Avenue North, Nashville, Tennessee 37219.
"Pro Rata Share" means the percentage of the Maximum Total Amount held
by each of the Lenders as set forth opposite their respective signatures
hereto, as such percentage may be adjusted from time to time as a result of
assignments or amendments made pursuant to this Agreement.
"Property" or "Properties" means any interest in any kind of property
or asset, whether real, personal, or mixed, or tangible or intangible.
"Revolving Credit Advance" means an Advance under the Revolving Credit
Notes.
"Revolving Credit Loan" means the aggregate amount of all Advances
under the Revolving Credit Notes.
"Revolving Credit Loan Commitment" means, relative to any Lender, such
Lender's obligation to make Advances pursuant to Section 2.01(a) of this
Agreement.
"Revolving Credit Note" and "Revolving Credit Notes" means, as the
context may require: (a) any of the revolving credit notes executed by the
Borrower payable to the order of any Lender, substantially in the form of
Exhibit A hereto, originally in the principal amounts each such Lender's
Pro Rata Share bears to the Maximum Total Amount for the Revolving Credit
Loan, evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the outstanding Revolving Credit Loan, as each such
Revolving Credit Note may from time to time be amended, increased,
decreased, extended, renewed, restated, and/or changed in any way, and all
other promissory notes accepted from time to time in amendment, renewal,
payment and/or substitution thereof and/or therefor, and/or (b)
collectively, all of the foregoing.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw-Hill
Companies, Inc.
"Significant Subsidiary" and "Significant Subsidiaries" means any
Subsidiary which has gross assets (based on undepreciated historical cost)
aggregating $250,000 or more at any
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time. Once a Subsidiary becomes a Significant Subsidiary, it shall remain a
Significant Subsidiary during the term of this Agreement. As of the date
hereof, the Significant Subsidiaries are the following Subsidiaries:
Danek Medical, Inc.
Warsaw Orthopedic, Inc.
Medical Education K.K.
Sofamor Danek GmbH
Sofamor Danek Asia Pacific Limited
Sofamor S.N.C.
Sofamor Danek Italia S.r.l.
Sofamor Danek Iberica S.A.
Sofamor Danek Canada, Inc.
Sofamor Danek Nevada, Inc.
Sofamor Danek Australia Pty. Ltd.
Surgical Navigation Technologies, Inc.
Mednext, Inc.
Sofamor Danek Properties, Inc.
Sofamor Danek (Puerto Rico), Inc.
Colorado S.A.
Sofamor Danek South Africa (Pty.) Limited
Sofamor Danek Nederland B.V.
Sofamor Danek (U.K.) Limited
Sofamor Danek Holdings, Inc.
SDGI Holdings, Inc.
DMI Tennessee Holdings, Inc.
Sofamor Danek, L.P.
"Subsidiary" means (i) any corporation of which more than fifty
percent (50%) of the issued and outstanding Voting Stock is owned or
controlled at the time as of which any determination is being made directly
or indirectly by any Person; or (ii) any limited liability company,
partnership or limited partnership of which more than 50% of the interests
therein is owned or controlled at the time as of which any determination is
being made, directly or indirectly by any Person.
"Swing Line Lender" shall mean the Agent and its successors and
assigns.
"Swing Line Loan" means all Advances made under the Swing Line Note up
to the Swing Line Subcommitment.
"Swing Line Note" means the revolving credit note of the Borrower,
payable to the order of the Swing Line Lender, in substantially the form of
Exhibit C hereto, in the principal amount of up to $5,000,000 issued
pursuant to Section 2.03 herein, as such may be from time to time
supplemented, modified, amended, renewed or extended.
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"Swing Line Rate" shall be a rate of interest offered from time to
time by Swing Line Lender to Borrower, in the sole discretion of Swing Line
Lender, to fluctuate from time to time as determined by Swing Line Lender.
"Swing Line Subcommitment" shall mean $5,000,000.
"Tangible Net Worth" means the Net Worth less goodwill and other
intangible assets, of Borrower and Subsidiaries on a consolidated basis,
calculated in accordance with GAAP.
"Telerate Page" means the designed pages for British Bankers
Association LIBOR Rates on the Telerate System Incorporated Service for
U.S. Dollars or the applicable Foreign Currency (or such other page as may
replace such page on such service for the purpose of displaying the rates
at which U.S. Dollars or the applicable Foreign Currency are offered by
leading banks in the London interbank deposit market).
"Total Capitalization" means an amount equal to the sum of Borrower's
Funded Debt plus Net Worth, all as determined on a consolidated basis for
Borrower and its Subsidiaries in accordance with GAAP.
"U.S. Dollar Equivalent" means the equivalent in U.S. Dollars of the
Foreign Currency Advance, determined as of the second (2nd) Foreign
Currency Business Day prior to the beginning of any Interest Period for a
Foreign Currency Loan.
"Voting Stock" means securities of any class of a corporation, the
holders of which are ordinarily, in the absence of contingencies, entitled
to elect a majority of the corporate directors (or persons performing
similar functions).
Article II. The Credit.
Section 2.01 Loan Facilities. Subject to the conditions precedent set forth
in this Agreement and pursuant to the terms of the Loan Documents and in
reliance upon the representations, warranties, and covenants set forth in the
Loan Documents, Lenders agree to make the following loans to Borrower:
(a) The Revolving Credit Loan. In the aggregate for all Lenders up to
the Maximum Total Amount and on any Business Day occurring prior to the
Maturity Date, each Lender severally agrees to make Revolving Credit
Advances under the terms of this Agreement and the Revolving Credit Notes
(relative to such Lender) to the Borrower as evidenced by a Revolving
Credit Note equal to such Lender's Pro Rata Share of the aggregate amount
of the borrowing of total Revolving Credit Advances requested by the
Borrower to be made on such day. Each Advance under the Revolving Credit
Loan shall be made in accordance with the borrowing procedure specified in
Section 2.05.
(i) The amount available to be advanced under the Revolving Credit
Loan shall not exceed the Maximum Total Amount.
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(ii) On the terms and subject to the conditions hereof and the
Revolving Credit Notes, and provided no Event of Default or Default
Condition has occurred, the Borrower may borrow, repay, and reborrow under
the Revolving Credit Loan.
(iii) The failure of any Lender to make an Advance under its Revolving
Credit Loan Commitment shall not relieve any other Lender of its
obligations hereunder to make Advances under such Lender's Revolving Credit
Loan Commitment, but no Lender shall be responsible for the failure of any
other Lender to make an Advance to be made by such other Lender on the date
of any requested Advance.
(b) The Foreign Currency Loan. In the aggregate for all Lenders up to
the Maximum Total Amount and on any Foreign Currency Business Day occurring
prior to the Maturity Date, each Lender severally agrees to make Foreign
Currency Advances under the terms of this Agreement and the Foreign
Currency Notes (relative to such Lender) to the Borrower as evidenced by a
Foreign Currency Note equal to such Lender's Pro Rata Share of the
aggregate amount of the borrowing of total Foreign Currency Advances
requested by the Borrower to be made on such day. Each Advance under the
Foreign Currency Loan shall be made in accordance with the borrowing
procedure specified in Section 2.05.
(i) On the terms and subject to the conditions hereof and the Foreign
Currency Credit Notes, and provided no Event of Default or Default
Condition has occurred, the Borrower may borrow, repay, and reborrow under
the Foreign Currency Loan.
(ii) The failure of any Lender to make an Advance under its Foreign
Currency Credit Loan Commitment shall not relieve any other Lender of its
obligations hereunder to make Advances under such Lender's Foreign Currency
Loan Commitment, but no Lender shall be responsible for the failure of any
other Lender to make an Advance to be made by such other Lender on the date
of any requested Advance.
Section 2.02 Letters of Credit Subcommitment.
(a) Provided no Event of Default or Default Condition exists, and
subject to the terms and conditions of the Loan Documents, the Lenders have
agreed that the Agent on behalf of the Lenders will issue to third party
beneficiaries for the account of Borrower, or jointly for the account of
Borrower and a Subsidiary of Borrower, irrevocable standby letters of
credit ("Letters of Credit") in the face amount of up to $5,000,000 in the
aggregate. Agent on behalf of the Lenders shall not be required to issue
Letters of Credit in an aggregate face amount exceeding $5,000,000. In
connection with the issuance of each Letter of Credit, the Borrower shall
complete a Letter of Credit Application Agreement, and such other
documentation in form and substance as required by Agent. The term of any
Letter of Credit shall not extend beyond the Maturity Date.
(b) In connection with the issuance of any Letter of Credit, the
Borrower shall pay in advance to Agent a Letter of Credit Fee (calculated
as of the date of the issuance of the
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Letter of Credit and accruing to the end of the current Fiscal Quarter, and
thereafter payable quarterly in advance for the actual number of days in
such Fiscal Quarter, calculated on a 360-day year, provided however that if
the term of the Letter of Credit expires before the end of the Fiscal
Quarter, then it will be payable for the actual number of days until
expiration) to be apportioned and paid by Agent to each of the Lenders
pursuant to the Pro Rata Share of each Lender. If the term of any Letter of
Credit is less than one (1) month, the Letter of Credit Fee shall be
calculated as if the term of the Letter of Credit were equal to one (1)
month.
(c) In connection with the issuance of any Letter of Credit, the
Borrower shall also pay to Agent a Facing Fee (payable on the dates set
forth in subsection (b) of this Section) calculated on a 360 day year. None
of the Lenders, except for the Agent, shall share in the Facing Fee.
(d) The Agent agrees to use its best efforts to issue and deliver to
the Borrower each requested Letter of Credit within three (3) Business Days
following submission by Borrower of a properly completed Letter of Credit
Application Agreement.
(e) No Letter of Credit shall be issued for a term that extends beyond
the Maturity Date. The language of each Letter of Credit, including the
requirements for a draw thereunder, shall be subject to the reasonable
approval of the Agent.
(f) The face amount of all outstanding Letters of Credit shall reduce
the Borrower's ability to receive Advances under the Revolving Credit Loan
by such amount. Additionally, any payment by Agent under a Letter of Credit
shall be treated as an Advance under the Revolving Credit Loan, and the
terms and provisions of repayment shall be treated as an Advance under the
Revolving Credit Loan.
(g) The Lenders shall participate in all Letters of Credit requested
by the Borrower under this Agreement except for the Facing Fee. Each Lender
holding a Revolving Credit Note, upon issuance of a Letter of Credit by the
Agent, shall be promptly notified by the Agent and shall be deemed to have
purchased without recourse, a risk participation from the Agent in such
Letter of Credit and the obligations arising thereunder, in each case in an
amount equal to its Pro Rata Share of all obligations under such Letter of
Credit and shall absolutely, unconditionally, and irrevocably assume, as
primary obligor and not as surety, and be obligated to pay to the Agent
therefor and discharge when due, its Pro Rata Share of all obligations
arising under such Letter of Credit. Without limiting the scope and nature
of a Lender's participation in any Letter of Credit, to the extent that the
Agent has not been reimbursed as required hereunder or under any such
Letter of Credit, each such Lender shall pay to the Agent its Pro Rata
Share of such unreimbursed drawing in same day funds on the day of
notification by the Agent of an unreimbursed drawing. The obligation of
each Lender to so reimburse the Agent shall be absolute and unconditional
and shall not be affected by the occurrence of a Default Condition or an
Event of Default or any other occurrence or event.
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Section 2.03 Swing Line Loan.
(a) Swing Line Subcommitment. Subject to and upon the terms and
conditions herein set forth, the Swing Line Lender establishes in favor of
the Borrower, its Swing Line Subcommitment. The Swing Line Lender, subject
to and upon the terms and conditions set forth herein, from time to time,
agrees to make to the Borrower Advances under the Swing Line Loan in an
aggregate principal amount outstanding at any time not to exceed the Swing
Line Subcommitment. Borrower shall be entitled to borrow, repay and
reborrow Advances under the Swing Line Loan in accordance with the
provisions hereof and of the Swing Line Note.
(b) Amount and Terms of Swing Line Loan. Each Advance under the Swing
Line Loan shall be made from the Swing Line Lender at the Swing Line Rate
in accordance with the borrowing procedure specified in Section 2.05.
(c) Repayment of Swing Line Loan by Revolving Credit Loan. If (i)
after giving effect to any request for an Advance, the aggregate principal
amount of (A) the portion of the Revolving Credit Loan (including the face
amount of all outstanding Letters of Credit), held by Swing Line Lender as
a Lender under the Revolving Credit Loan, plus (B) the Swing Line Loan
would exceed the maximum amount of the Revolving Credit Note held by the
Swing Line Lender, or (ii) there are any outstanding Advances under the
Swing Line Loan upon the occurrence of an Event of Default, then each
Lender holding a Revolving Credit Note hereby agrees, upon the request of
the Swing Line Lender, to make an Advance under the Revolving Credit Loan
in an amount equal to such Lender's Pro Rata Share of the outstanding
principal amount of the Swing Line Loan (the "Refundable Swing Line Loan")
outstanding on the date such notice is given. On or before 11:00 a.m.
(Nashville, Tennessee time) on the first Business Day following receipt by
such Lender of a request to make the Advances referenced in the preceding
sentence, each such Lender (other than the Swing Line Lender) shall deposit
in an account specified by the Agent to the Lenders from time to time the
amount as requested in same day funds, whereupon such funds shall be
immediately delivered to the Swing Line Lender (and not the Borrower) and
applied to repay the Refundable Swing Line Loan. On the day such Advances
are made by the Lenders, the Swing Line Lender's Pro Rata Share of the
Refundable Swing Line Loan shall be deemed to be paid with the proceeds of
the Revolving Credit Advance made by the Swing Line Lender. Upon the making
of any Advance under the Revolving Credit Loan pursuant to this subpart
(c), the amount so funded shall become due under each Lender's Revolving
Credit Note and shall no longer be owed under the Swing Line Note.
Additionally, the Applicable Rate on such Refundable Swing Line Loan shall
initially be the Base Rate Option. Each Lender's obligation to make
Advances under its Revolving Credit Note referred to in this subpart (c)
shall be absolute and unconditional and shall not be affected by any
circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
(d) Purchasing of Participations. In the event that (i) the Borrower
is subject to any bankruptcy or insolvency proceedings, or (ii) if the
Swing Line Lender otherwise requests, each Lender holding a Revolving
Credit Note and/or a Foreign Currency Note shall
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acquire without recourse or warranty, an undivided participation interest
in the Swing Line Loan equal to such Lender's Pro Rata Share by paying to
the Swing Line Lender, in same day funds, an amount equal to such Lender's
Pro Rata Share of the Swing Line Loan. From and after the date on which
such Lender purchases an undivided participation interest in the Swing Line
Loan pursuant to this subsection, the Swing Line Lender shall distribute to
such Lender (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's participation
interest is outstanding and funded) the Lender's Pro Rata Share of all
payments of principal and interest in respect of the Swing Line Loan in
like funds as received; provided, however, that in the event such payment
received by the Swing Line Lender is required to be returned to the
Borrower, such Lender shall return to the Swing Line Lender the portion of
any amounts which such Lender had received from the Swing Line Lender in
like funds.
Section 2.04 Interest Rates and Interest Payment Dates.
(a) The Applicable Rate for Advances under the Revolving Credit Loan
shall either be the Base Rate Option or the LIBOR Option, as selected by
Borrower pursuant to the procedures specified in parts (b) and (c) below.
The Applicable Rate for Advances under the Foreign Currency Loan shall be
the Foreign Currency Rate Option. The Applicable Rate for the Swing Line
Loan shall be the Swing Line Rate.
(b) So long as the Borrower complies with Section 2.05 herein, the
Borrower may elect that any Advance under the Revolving Credit Loan shall
bear interest at either the Base Rate Option or the LIBOR Option. In the
event that the Borrower fails to designate an Applicable Rate for a
Revolving Credit Loan, or in the event the Borrower fails to make an
interest rate election in strict compliance herewith, then it shall be
conclusively presumed that the Borrower has selected the Base Rate Option
with a one (1) month Interest Rate Period for such Revolving Credit
Advance.
(c) Upon the occurrence of an Event of Default, the indebtedness
described herein and all obligations hereunder shall bear interest at the
Default Rate.
(d) All interest other than interest calculated in accordance with the
Base Rate Option, and all fees for the issuance of Letters of Credit shall
be calculated on the basis of actual days elapsed in a 360-day year.
Interest calculated in accordance with the Base Rate Option shall be
calculated on the basis of a 365-366 (as applicable) day year.
(e) Interest and principal shall be due and payable on the dates set
forth in the Revolving Credit Notes, the Foreign Currency Notes and the
Swing Line Note.
Section 2.05 Borrowing Procedure. (a) In General. The Borrower authorizes
the Agent to deposit all Advances into the Funding Account. Any one of the
Persons who hold the following titles with Borrower is authorized to request an
Advance: Chief Executive Officer, President, Chief Financial Officer, Treasurer
and Assistant Treasurer. As of the date of this Agreement and until notice to
the contrary is given by Borrower to Agent, any one of the following persons is
authorized
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to request an Advance and/or issuance of a Letter of Credit: E. Ron
Pickard, C.E.O., James J. Gallogly, President, Laurence Y. Fairey, Chief
Financial Officer, J. Mark Merrill, Treasurer, or Jack B. Pearson, Jr.,
Assistant Treasurer. When a request for an Advance is made by an authorized
officer of Borrower accompanied with written instructions to fund the Advance by
a method other than depositing such Advance into the Funding Account, Borrower
also authorizes Agent to follow such instructions.
(b) Requests for Revolving Credit Loan. Borrower shall give the Agent at
least three (3) Business Days' prior notice of a proposed Advance at the LIBOR
Option (including conversions to a LIBOR Option and rollovers of existing
Advances at the LIBOR Option) and same Business Day prior notice by 11:00 a.m.
(Nashville, Tennessee time) of a proposed Advance at the Base Rate Option, under
the Revolving Credit Loan by presentation of the applicable Borrowing Request.
Any notice received by Borrower after 11:00 a.m. Nashville, Tennessee time will
be deemed given on the next Business Day. Any telephonic notices shall be
promptly confirmed in writing delivered to Agent. All Borrowing Requests for a
Revolving Credit Loan shall specify (i) the amount of the requested Advance,
(ii) the requested date of borrowing, so long as it conforms to the required
notification period, (iii) whether the borrowing is to be (A) a new Advance at
the LIBOR Option or Base Rate Option or a combination thereof or (B) a
conversion from a LIBOR Option to a Base Rate Option or a Base Rate Option to a
LIBOR Option or (C) a rollover of an existing Advance at the LIBOR Option, and
(iv) if the Advance is to be entirely or partly made as a LIBOR Loan, the chosen
Interest Period. At least three (3) Business Days prior to the expiration of any
applicable Interest Period for an Advance at the LIBOR Option, the Borrower
shall designate a new Applicable Rate. In the event that the Borrower fails to
make such designation, then it shall be conclusively presumed that the Borrower
has selected the Base Rate Option until designated otherwise. With regard to
requests for Advances under the Revolving Credit Loan, the following shall
apply: (a) in the event that the Borrower designates the Base Rate Option as the
Applicable Rate, the requested Advance must be in a minimum amount of $1,000,000
and increments of $100,000 in excess thereof; and (b) in the event the Borrower
designates the LIBOR Option as the requested Applicable Rate, the requested
Advance must be in a minimum amount of $3,000,000 and increments of $500,000 in
excess thereof. Agent shall give prompt notice to Lenders of a request for an
Advance on the date of such request, and each Lender shall wire immediately
available funds to Agent by 1:00 p.m. (Nashville, Tennessee time) the date of
the requested Advance.
(c) Requests for Foreign Currency Loans. Borrower shall give the Agent at
least three (3) Foreign Currency Business Days' prior notice of a proposed
Advance at the Foreign Currency Rate Option (including conversion to a Foreign
Currency Rate Option and rollovers of existing Advances at the Foreign Currency
Rate Option), by presentation of the applicable Borrowing Request. Any notice
received by Borrower after 11:00 a.m. Nashville, Tennessee time will be deemed
given on the next Business Day. Any telephonic notices shall be promptly
confirmed in writing delivered to Agent. All Borrowing Requests for a Foreign
Currency Loan shall specify (i) the amount of the requested Advance, (ii) the
requested date of borrowing, so long as it conforms to the required notification
period, (iii) whether the borrowing is to be (A) a new Advance at the Foreign
Currency Rate Option or (B) a rollover of an existing Advance at the Foreign
Currency Rate Option; and (iv) the type of Foreign Currency to be advanced. At
least three (3) Foreign Currency Business Days prior to the expiration of any
applicable Interest Period for an Advance at the Foreign Currency Rate Option,
the
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Borrower will designate a new Applicable Rate. In the event that the Borrower
fails to designate a rollover of an existing Foreign Currency Advance and does
not repay the Foreign Currency Advance at the end of the Interest Period, then
it shall be conclusively presumed that the Borrower has selected a new Foreign
Currency Rate Option for the next Interest Period. The requested Foreign
Currency Advance must be in a minimum U.S. Dollar Equivalent amount of
$1,000,000. Agent shall give prompt notice to Lenders of a request for a Foreign
Currency Advance on the date of such request, and each Lender shall wire
immediately available funds in such Foreign Currency to Agent by 1:00 p.m.
(Nashville, Tennessee time) the date of the requested Foreign Currency Advance.
The Borrower may request only one Foreign Currency Advance (except for renewals
of prior Foreign Currency Advances) in each calendar month.
(d) Swing Line Note. Borrower may give the Agent oral notice of a request
for an Advance under the Swing Line Note no later than 11:00 A.M. (Nashville,
Tennessee time) followed by facsimile transmission of a Borrowing Request sent
to Agent. Borrower shall specify that such request is a request under the Swing
Line Note, and subject to availability under the Swing Line Note and provided
the request is made no later than 11:00 A.M. (Nashville, Tennessee time), the
Agent shall make the Advance by crediting the Funding Account no later than the
close of business on the day of the borrowing. Advances under the Swing Line
Loan shall be in a minimum amount of $100,000 and increments of $100,000 in
excess thereof.
(e) No Liability. The Agent and the Lenders shall have no liability to
Borrower arising out of their compliance with the borrowing procedure specified
in this Section 2.05, except for acts of gross negligence or willful misconduct.
(f) Warranty. The request by the Borrower of an Advance shall constitute a
warranty by the Borrower that as of the date of the request and as of the date
the Advance is made: (i) no Event of Default or Default Condition has occurred;
and (ii) the representations and warranties contained in Article III of this
Agreement remain true, correct, and accurate, except the representations and
warranties set forth in Section 3.06 which is made as of the date of this
Agreement and the representations and warranties in Sections 3.07 and 3.08 which
shall take into account transactions and subsequent events as permitted in this
Agreement.
Section 2.06 Use of Proceeds. Proceeds of the Revolving Credit Loan,
Foreign Currency Loan and the Swing Line Loan shall be used to refinance the
existing credit facility of Borrower with SunTrust Bank, Nashville, N.A., in the
original maximum principal amount of up to $40,000,000 and all replacements
therefor, including without limitation existing letters of credit and
multi-currency facilities, and to fund Borrower's working capital needs, and for
Borrower's general corporate purposes, including capital expenditures and
acquisitions.
Section 2.07 Participation. Any Lender shall have the right to enter into
one or more participation agreements with one or more of its Affiliates. Subject
to Borrower's approval under Section 12.12(d), each Lender shall have the right
to enter into one or more participation agreements with one or more banks, or
financial institutions which are not Affiliates of such Lender, on such terms
and conditions as such Lender shall deem advisable. Notwithstanding any
provisions of this section or Section 12.12(d), a Lender shall have the right to
enter into one or more participation
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agreements without the consent of Borrower, upon the occurrence of an Event of
Default. Borrower shall furnish a sufficient number of copies of reports and
certificates to Lenders so that Lenders and each participating lender shall
receive a copy of each such document.
Section 2.08 Term of This Agreement. This Agreement shall mature and all
amounts under this Agreement, the Revolving Credit Notes, the Foreign Currency
Notes and the Swing Line Note shall be due and payable on the Maturity Date.
This Agreement shall be binding upon the Borrower so long as any portion of the
indebtedness described herein remains outstanding, provided and except,
Borrower's representations, warranties, and indemnity agreements shall survive
the payment in full of such indebtedness.
Section 2.09 Payments to Principal Office; Debit Authority. Each payment
under the Revolving Credit Loan and the Foreign Currency Loan shall be made
without defense, setoff, or counterclaim to Agent at its Principal Office in
U.S. Dollars for the Revolving Credit Loan and in the applicable Foreign
Currency (as advanced or converted) for the Foreign Currency Loan, for the
account of Lenders and in immediately available funds before 11:00 a.m.
(Nashville, Tennessee time) on the date such payment is due. The Agent may, but
shall not be obligated to, debit the amount of any such payment which is not
made by such time to any deposit account of the Borrower with the Agent. Each
payment under the Swing Line Loan shall be made to Agent at its Principal Office
in U.S. Dollars and in immediately available funds before 11:00 a.m. (Nashville,
Tennessee time) on the date such payment is due. Payments received after 11:00
a.m. (Nashville, Tennessee time) will be deemed received on the next Business
Day. Agent shall wire, in immediately available funds, each such payment to
Lenders by 2:00 p.m. (Nashville, Tennessee time) on the date payments are
received.
Section 2.10 Prepayment.
(a) Required Prepayment. Whenever the aggregate amount outstanding
under the Revolving Credit Loan exceeds the Maximum Total Amount, the
Borrower shall immediately pay to Lenders such amounts as may be necessary
to cause the aggregate principal amount outstanding under the Revolving
Credit Loan to be equal to or less than the Maximum Total Amount permitted
to be outstanding. Whenever the aggregate principal amount outstanding
under the Foreign Currency Loan exceeds the Maximum Total Amount, the
Borrower shall immediately pay to Agent such amounts as may be necessary to
cause the aggregate principal amount outstanding under the Foreign Currency
Loan to be equal to or less than the Maximum Total Amount permitted to be
outstanding. Whenever the amount outstanding under the Swing Line Note
exceeds the Maximum Total Amount permitted to be outstanding under the
Swing Line Loan, the Borrower shall immediately pay to Agent such amounts
as may be necessary to cause the principal amount outstanding under the
Swing Line Note to be equal to or less than the Maximum Total Amount
permitted to be outstanding under the Swing Line Loan;
(b) Optional Prepayment. The Borrower may prepay the Revolving Credit
Loan, the Foreign Currency Loan and the Swing Line Loan as follows:
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(i) The Borrower may prepay the Swing Line Loan (provided that
such reduction shall be in a principal amount of at least $100,000 and
integral multiples of $100,000 in excess thereof) by written or oral
notice to Agent no later than 11:00 a.m. (Nashville, Tennessee time)
on the date of such prepayment, (if notice is oral, to be promptly
thereafter confirmed in writing);
(ii) Borrower may prepay Advances under the Revolving Credit
Notes which bear interest at the Base Rate Option (provided that such
reduction shall be in a principal amount of at least $1,000,000 and
integral multiples of $100,000 in excess thereof) by written notice
delivered to Agent no later than 11:00 a.m. (Nashville, Tennessee
time) on the date of such prepayment and Agent shall promptly give
notice to Lenders on the date of such prepayment;
(iii) Borrower shall not have the right and option to prepay
Advances under the Revolving Credit Notes bearing interest at the
LIBOR Option until the expiration of the applicable Interest Period
for such Advance. Any such reduction shall be in a principal amount of
at least $1,000,000 and integral multiples of $100,000 in excess
thereof and Borrower must give Agent at least three (3) Business Days'
prior written notice of the amount and time of such prepayment. Should
a prepayment of Advances bearing interest at the LIBOR Option be made
prior to the expiration of the applicable Interest Period, Borrower
agrees to immediately pay breakage costs determined by Agent and/or
the Lenders to apply to such prepayment; provided, that nothing herein
shall give Borrower the right to prepay such Advances prior to the end
of the applicable Interest Period;
(iv) Borrower shall not have the right and option to prepay
Advances under the Foreign Currency Notes bearing interest at the
Foreign Currency Rate Option until the expiration of the applicable
Interest Period for such Advance. Any such reduction shall be in a
principal amount of at least $1,000,000 and integral multiples of
$100,000 in excess thereof and Borrower must give Agent at least three
(3) Foreign Currency Business Days' prior written notice of the amount
and time of such prepayment. Should a prepayment of Advances bearing
interest at the Foreign Currency Rate Option be made prior to the
expiration of the applicable Interest Period, Borrower agrees to
immediately pay breakage costs determined by Agent and/or the Lenders
to apply to such prepayment; provided, that nothing herein shall give
Borrower the right to prepay such Advances prior to the end of the
applicable Interest Period.
All prepayments will be applied first to unpaid expenses (if any), then to
accrued interest, then to principal.
(c) Permanent Prepayments. The Borrower may permanently reduce the
Revolving Credit Loan as follows:
(i) Upon ten (10) days prior written notice delivered from
Borrower to Agent,
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the Borrower may permanently reduce the maximum principal amount that
may be borrowed under the Revolving Credit Loan; provided that such
reduction shall be in a principal amount of at least $5,000,000 and
integral multiples of $1,000,000 in excess thereof, and provided that
such reduction shall not reduce an outstanding Revolving Credit
Advance with a LIBOR Option until the expiration of the applicable
Interest Period for such Advance. In the event that a permanent
reduction is made by the Borrower in the amount that may be borrowed
under the Revolving Credit Loan, the Maximum Total Amount for the
Revolving Credit Loan and the Revolving Credit Loan Commitment shall
be reduced accordingly, and the Maximum Total Amounts with respect to
the Letter of Credit Subcommitment, the Foreign Currency Commitment
and the Swing Line Loan may be reduced as determined by Agent in
Agent's discretion. Agent shall notify Lenders of any such reduction,
within two (2) Business Days after receipt of such notice from
Borrower.
Section 2.11 Apportionment of Payments. Aggregate principal and interest
payments with respect to Advances under the Revolving Credit Loan shall be
apportioned among all outstanding Revolving Credit Loan Commitments to which
such payments relate proportionately to the Lenders' respective Pro Rata Share
of such Revolving Credit Loan Commitments. In the event the Agent receives
payment under the Revolving Credit Loan by 11:00 A.M. (Nashville, Tennessee
time), then the Agent shall promptly distribute to each Lender its share of all
such payments received by the Agent on the date of Agent's receipt of such
payments. Payments received subsequent to 11:00 A.M. (Nashville, Tennessee time)
shall be treated as received on the next succeeding Business Day. Aggregate
principal and interest payments with respect to Advances under the Foreign
Currency Loan shall be apportioned (in the Foreign Currency repaid by Borrower)
among all outstanding Foreign Currency Commitments to which such payments relate
proportionately to the Lenders' respective Pro Rata Share of such Foreign
Currency Commitments. In the event the Agent receives payment under the Foreign
Currency Loan by 11:00 A.M. (Nashville, Tennessee time), then the Agent shall
promptly distribute to each Lender its share of all such payments received by
the Agent on the date of Agent's receipt of such payments. Payments received
subsequent to 11:00 A.M. (Nashville, Tennessee time) shall be treated as
received on the next succeeding Foreign Currency Business Day.
Section 2.12 Sharing of Payments, Etc. If any Lender shall obtain any
payment or reduction (including, without limitation, any amounts received as
adequate protection of a deposit treated as cash collateral under the Bankruptcy
Code) of the indebtedness relating to Advances under the Revolving Credit Loan
and/or Foreign Currency Loan (whether voluntary, involuntary, through the
exercise of any right of set-off or otherwise) in excess of its Pro Rata Share
of payments or reductions of the Revolving Credit Loan, such Lender shall
forthwith (a) notify the Agent of such receipt (and the Agent shall notify the
Lenders), and (b) purchase from the other Lenders such participations in the
Revolving Credit Loan and/or the Foreign Currency Loan as shall be necessary to
cause such purchasing Lender to share the excess payment or reduction, net of
costs incurred in connection therewith, ratably with each of them, provided that
if all or any portion of such excess payment or reduction is thereafter
recovered from such purchasing Lender or additional costs are incurred, the
purchase shall be rescinded and the purchase price restored to the extent of
such recovery or such additional costs, but without interest unless the Lender
obligated to return such funds is required to pay interest on such funds.
Borrower agrees that any Lender so purchasing a participation from
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another Lender pursuant to this Section 2.12 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such participation.
Section 2.13 Right of Offset, Etc. The Borrower hereby agrees that, in
addition to (and without limitation of) any right of set-off, banker's lien or
counterclaim the Lenders may otherwise have, the Lenders shall be entitled, at
their option, to offset balances held by any of them at any of their offices
against any principal of or interest on the indebtedness described herein which
is not paid when due by reason of a failure by the Borrower to make any payment
when due to such Lender and/or any of the other Lenders, and/or the Swing Line
Lender (regardless whether such balances are then due to the Borrower), in which
case such offsetting Lender shall promptly notify the Borrower, provided that
its failure to give such notice shall not affect the validity thereof. Net of
costs incurred in connection with any such offset, each Lender agrees to share
pro-rata with the other Lenders and the Swing Line Lender, based on the amounts
of the Revolving Credit Loan, Foreign Currency Loan and the Swing Line Loan held
by such Lenders and the Swing Line Lender, any proceeds realized from the
exercise of such offset rights.
Section 2.14 Commitment Fee. Commencing on September 30, 1997 and on the
last day of each Fiscal Quarter thereafter (or if not a Business Day, the next
succeeding Business Day) and on the Maturity Date, the Borrower shall pay to the
Agent for distribution to the Lenders based on their Pro Rata Share, a
commitment fee equal to the Applicable Commitment Fee calculated on the average
unused portion of the Revolving Credit Loan for the preceding Fiscal Quarter (or
portion thereof); provided that the payment made on September 30, 1997 shall be
for a time period from the Closing Date to September 30, 1997. The commitment
fee shall be calculated based on a year of 360 days for the actual number of
days elapsed.
Section 2.15 Usury. The parties to this Agreement intend to conform
strictly to applicable usury laws as presently in effect. Accordingly, if the
transactions contemplated hereby would be usurious under applicable law
(including the laws of the United States of America and the State of Tennessee),
then, in that event, notwithstanding anything to the contrary in any Loan
Document or agreement executed in connection with the indebtedness described
herein, Borrower, Agent, and Lenders agree as follows: (i) the aggregate of all
consideration that constitutes interest under applicable law which is contracted
for, charged, or received under any of the Loan Documents or agreements, or
otherwise in connection with the indebtedness described herein, shall under no
circumstance exceed the maximum lawful rate of interest permitted by applicable
law, and any excess shall be credited on the indebtedness by the holder thereof
(or, if the indebtedness described herein shall have been paid in full, refunded
to Borrower); and (ii) in the event that the maturity of the indebtedness
described herein is accelerated as a result of any Event of Default or
otherwise, or in the event of any required or permitted prepayment, then such
consideration that constitutes interest may never include more than the maximum
amount of interest permitted by applicable law, and excess interest, if any, for
which this Agreement provides, or otherwise, shall be cancelled automatically as
of the date of such acceleration or prepayment and, if previously paid, shall be
credited on the indebtedness described herein (or, if the indebtedness shall
have been paid in full, refunded to Borrower).
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Section 2.16 Interest Rate Not Ascertainable, Etc. In the event that the
Agent shall in good faith have determined that on any date for determining the
LIBOR Rate, by reason of any changes arising after the date of this Agreement
affecting the London interbank market or the Agent's position in such market,
adequate and fair means do not exist for ascertaining the applicable interest
rate on the basis provided for in the definition of LIBOR Rate, then, and in any
such event, the Agent shall forthwith give notice (by telephone confirmed in
writing) to the Borrower of such determination and a summary of the basis for
such determination. At the expiration of any Interest Rate Period then in effect
and until the Agent notifies the Borrower that the circumstances giving rise to
the suspension described herein no longer exist (which notice shall be given
forthwith after such determination is made by the Agent), all Loans shall bear
interest at the Base Rate Option. In the event that the Agent shall in good
faith have determined that on any date for determining a Foreign Currency Rate
Option, by reason of any changes arising after the date of this Agreement
affecting the interbank market for such Foreign Currency or the Agent's position
in such market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of Foreign
Currency Rate Option, then, and in any such event, the Agent shall forthwith
give notice (by telephone confirmed in writing) to the Borrower of such
determination and a summary of the basis for such determination. At the
expiration of any Interest Period then in effect and until the Agent notifies
the Borrower that the circumstances giving rise to the suspension described
herein no longer exist (which notice shall be given forthwith after such
determination is made by the Agent), the Foreign Currency Loans for which a
Foreign Currency Rate Option cannot be established under this Section shall be
converted at the end of the applicable Interest Period to a Revolving Credit
Loan and shall thereafter bear interest at the Base Rate Option.
Section 2.17 Illegality. (a) In the event that the Agent shall have
determined any time that the making or continuance of any Advance bearing
interest at the LIBOR Option or the Foreign Currency Rate Option has become
unlawful by compliance by any Lender (an "Affected Lender") in good faith with
any applicable law, governmental rule, regulation, guideline or order (whether
or not having the force of law and whether or not failure to comply therewith
would be unlawful), then, in any such event, the Agent shall give prompt notice
(by telephone confirmed in writing) to the Borrower of such determination and a
summary of the basis for such determination.
(b) Upon the giving of the notice to the Borrower referred to in Section
2.17(a), the Borrower's right to elect a LIBOR Option or a Foreign Currency Rate
Option shall be immediately suspended, and all outstanding Advances made by the
Affected Lender shall be under the Revolving Credit Loan and shall bear interest
at the Base Rate Option after the current Interest Period has expired. The
Borrower shall have the right and option to replace the Affected Lender pursuant
to Section 12.13 hereof, for so long as the Affected Lender which remains under
the disability described in Section 2.17(a).
Section 2.18 Increased Costs. (a) If by reason of (i) after the date
hereof, the introduction of or any change (including, without limitation, any
change by way of imposition or increase of reserve requirements) in or in the
interpretation of any law or regulation, or (ii) the compliance with any
guideline or request from any central bank or other governmental authority or
quasi-governmental authority exercising control over banks or financial
institutions generally (whether or not having the force of law):
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(A) the Agent or any Lender shall be subject to any tax (including a
foreign withholding tax), duty or other charge with respect to any Advances
bearing interest at the LIBOR Option or at the Foreign Currency Rate Option
(all such Advances being collectively referred to as the "LIBOR/Foreign
Currency Loans") or its obligation to make LIBOR Loans or Foreign Currency
Loans, or the basis of taxation of payments to the Agent or any Lender of
the principal of or interest on its LIBOR/Foreign Currency Loans or its
obligation to make LIBOR/Foreign Currency Loans shall have changed (except
for changes in the tax on the overall net income of the Agent or such
Lender, or similar taxes, pursuant to the laws of jurisdictions with taxing
authority over the Agent or such Lender); or
(B) any reserve (including, without limitation, any reserve imposed by
the Board of Governors of the Federal Reserve System), special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, the Agent or any Lender shall be imposed or deemed
applicable or any other condition affecting its LIBOR/Foreign Currency
Loans or its obligation to make LIBOR/Foreign Currency Loans shall be
imposed on the Agent, any Lender, the London interbank market or the
interbank market for a Foreign Currency;
and as a result thereof there shall be any increase in the cost to the Agent or
such Lender (a "LIBOR/Foreign Currency Affected Lender") of agreeing to make or
making, funding or maintaining LIBOR/Foreign Currency Loans (except to the
extent already included in the determination of the interest rate for
LIBOR/Foreign Currency Loans), or there shall be a reduction in the amount
received or receivable by the Agent or any LIBOR/Foreign Currency Affected
Lender, then the Borrower shall from time to time, upon written notice from and
demand in good faith by the Agent, pay to the Agent for the account of the
Lenders (or any LIBOR/Foreign Currency Affected Lender) within five (5) Business
Days after the date of such notice and demand, additional amounts sufficient to
indemnify the Agent or such LIBOR/Foreign Currency Affected Lender against such
increased cost; provided, however, that nothing in this section shall require
Borrower to indemnify the Agent or any Lender for withholding taxes imposed by
the United States; provided that Borrower shall have the right and option to
replace a LIBOR Affected Lender pursuant to the terms of Section 12.12 hereof.
(b) If the Agent shall in good faith determine that at any time, because of
the circumstances described in Section 2.18(a)(i) or (ii) arising after the date
of this Agreement affecting the Agent or any Lender, the London interbank market
or the interbank market for an applicable Foreign Currency, or the Agent or any
Lender's position in such market, the calculations for the interest rates for
LIBOR Loans or Foreign Currency Loans as determined by the Agent or any Lender
will not adequately and fairly reflect the cost to the Agent or any Lender of
funding such LIBOR Loans or Foreign Currency Loans, the Agent shall forthwith
give notice (by telephone confirmed in writing) to the Borrower of such advice,
and a summary of the basis for such determination, and then, and in any such
event and until Agent notifies the Borrower that such circumstances no longer
exist (which notice shall be given forthwith after such determination is made by
the Agent):
(i) The Borrower's right to request, and the Agent's and any Lender's
obligation to make or permit portions of the indebtedness described herein
to remain outstanding past the
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last day of the then current Interest Rate Period as LIBOR Loans shall be
immediately suspended; and
(ii) After the last day of the then-current Interest Rate Period, all
such indebtedness described in this Section shall be converted to a
Revolving Credit Loan and bear interest at the Base Rate Option.
Section 2.19 Mitigation. Each Lender shall take such commercially
reasonable steps as it may determine are not disadvantageous to it, including
changes in lending offices to the extent feasible, in order to reduce additional
payments by the Borrower pursuant to Section 2.18 and to make the LIBOR Option
and the Foreign Currency Rate Option available under Sections 2.17 and 2.18
hereof.
Section 2.20 Increase in Revolving Credit Loan Commitments.
(a) Borrower may, at any time by written notice to the Lenders, request
that the Revolving Credit Commitments be increased up to an amount not to exceed
$100,000,000 in the aggregate (the "Requested Commitment Amount") on a pro rata
basis based on the Pro Rata Shares of the Lenders. No Lender (or any successor
thereto) shall have any obligation to increase its Revolving Credit Loan
Commitment or its other obligations under this Agreement and the other Loan
Documents, and any decision by a Lender to increase its Revolving Credit Loan
Commitment shall be made in its sole discretion independently from any other
Lender or the Agent. Within fifteen (15) Business Days from each Lender's
receipt of such request from the Borrower, each Lender shall notify the Agent in
writing of whether or not it will agree to increase its Revolving Credit Loan
Commitment and by what amount it will agree to increase its Loan Commitment, up
to its Pro Rata Share of the Requested Commitment Amount. Borrower agrees to
execute and deliver to Agent and Lenders such amendments to documents,
promissory notes, resolutions, certificates, opinions and other documentation
and items as Agent and/or any of the Lenders may request in connection
therewith, all of which must be in form and substance satisfactory to Agent and
Lenders, and Borrower agrees to pay all costs and expenses (including without
limitation legal fees) of Agent and Lenders in connection therewith.
(b) In the event that the aggregate amount to which the Lenders are willing
to increase their Revolving Credit Loan Commitments is less than the Requested
Commitment Amount based on the written notices delivered by the Lenders to the
Agent, the Agent shall first offer to the Lenders who have agreed to increase
their Revolving Credit Loan Commitments the opportunity to further increase
their Revolving Credit Loan Commitments up to an amount equal to the Requested
Commitment Amount. Such Lenders shall promptly respond in writing to the Agent,
whether or not it will agree to further increase its Revolving Credit Loan
Commitment and by what amount it will agree to further increase its Revolving
Credit Loan Commitment. Within five (5) Business Days after receipt of all
responses from such Lenders, the Agent shall inform the Borrower and all Lenders
in writing of the amount by which each Lender will increase its Revolving Credit
Loan Commitment.
(c) In the event that the aggregate amount to which the Lenders are willing
to increase their Revolving Credit Loan Commitments is less than the Requested
Commitment Amount based on the notice from the Agent to the Borrower and all
Lenders, the Borrower shall have the right, within
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sixty (60) days after receipt of such notice from the Agent, to obtain
commitments from new banks or financial institutions in an aggregate amount such
that the existing Revolving Credit Loan Commitments, plus the aggregate
principal amount by which the Lenders are willing to increase their Revolving
Loan Commitments, plus the aggregate principal amount of the new commitments by
the new banks or financial institutions, does not exceed the Requested
Commitment Amount; provided, however, that (1) the new banks or financial
institutions must be acceptable to the Agent in its sole discretion, which
acceptance will not be unreasonably withheld or delayed, and (2) the new banks
or financial institutions must become parties to this Agreement pursuant to the
Assignment and Acceptance in form and substance satisfactory to the Agent,
pursuant to which (x) they shall be granted all of the rights that existing
Lenders have under this Agreement and the other Loan Documents and (y) they
shall assume the same liabilities and obligations that the existing Lenders have
under this Agreement.
Article III. Representations and Warranties.
To induce Lenders to enter this Agreement and extend credit under this
Agreement, the Borrower covenants, represents and warrants to Lenders that as of
the date hereof:
Section 3.01 Corporate Existence. The Borrower and its Subsidiaries are
corporations duly organized, legally existing, and in good standing under the
laws of the states of their incorporation, and are duly qualified as foreign
corporations in all jurisdictions in which the Property owned or the business
transacted by them makes such qualification necessary, except where failure to
so qualify does not have a material adverse effect upon the Borrower, its
Subsidiaries, their business, or their Properties, as a whole on a consolidated
basis.
Section 3.02 Power and Authorization. The Borrower and each of the
Guarantors, as applicable, are duly authorized and empowered to execute,
deliver, and perform under all Loan Documents; the board of directors of the
Borrower (and each Guarantor, as applicable) has authorized the execution and
performance of the Loan Documents; and all other corporate action on Borrower's
(and Guarantors') part required for the due execution, delivery, and performance
of the Loan Documents has been duly and effectively taken.
Section 3.03 Binding Obligations. This Agreement is, and the Loan Documents
when executed and delivered in accordance with this Agreement will be, legal,
valid and binding upon and against the Borrower (and the Guarantors, as
applicable), enforceable in accordance with their terms, subject to no defense,
counterclaim, set-off, or objection of any kind.
Section 3.04 No Legal Bar or Resultant Lien. The Borrower's (and the
Guarantors', as applicable) execution, delivery and performance of the Loan
Documents do not constitute a default under, and will not violate any provisions
of the articles of incorporation (or charter), or bylaws of the Borrower (or the
Guarantors), or any contract, agreement, law, regulation, order, injunction,
judgment, decree, or writ to which the Borrower (or the Guarantors) are subject,
or result in the creation or imposition of any Lien upon any Properties of the
Borrower (or the Guarantors).
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Section 3.05 No Consent. The Borrower's and the Guarantors', as applicable,
execution, delivery, and performance of the Loan Documents do not require the
consent or approval of any other Person.
Section 3.06 Financial Condition. The Financial Statements of Borrower
which have been delivered to Lenders, dated December 31, 1996 and March 31,
1997, have been prepared in accordance with GAAP consistently applied, and the
Financial Statements present fairly the financial condition of Borrower as of
the date or dates and for the period or periods stated therein. No material
adverse change in the financial condition of the Borrower and/or any of its
Subsidiaries has occurred since the date of such Financial Statements.
Section 3.07 Investments, Advances, and Guaranties. Neither the Borrower
nor the Guarantors have made investments in, advances to, or guaranties of the
obligations of any Person, or committed or agreed to undertake any of these
actions or obligations, except as referred to or reflected in the Financial
Statements.
Section 3.08 Liabilities and Litigation. Neither the Borrower nor its
Subsidiaries have material liabilities (individually or in the aggregate) direct
or contingent which would require adjustment to or disclosure in the Financial
Statements, or which could reasonably be expected to have a material adverse
effect on the Borrower or its Subsidiaries, except as referred to or reflected
in the Financial Statements. There is no litigation, legal or administrative
proceeding, investigation, or other action of any nature pending or, to the
knowledge of Borrower threatened against or affecting the Borrower or the
Subsidiaries, that could reasonably be expected to involve any judgment or
liability not fully covered by insurance or Financial Statement reserves, and
that may materially and adversely affect the business or the Properties of the
Borrower or the Subsidiaries, or their ability to carry on their business as now
conducted.
Section 3.09 Taxes; Governmental Charges. The Borrower and its Subsidiaries
have filed or caused to be filed all tax returns and reports required to be
filed and has paid all taxes, assessments, fees, and other governmental charges
levied upon it or upon any of their Properties or income, which are due and
payable. The Borrower and its Subsidiaries have made all required withholding
deposits.
Section 3.10 No Default. Neither the Borrower nor its Subsidiaries is in
default in any respect that may reasonably be expected to have a material and
adverse affect on their business, Properties, operations, or condition,
financial or otherwise, under any indenture, mortgage, deed of trust, credit
agreement, note, agreement, or other instrument to which they are a party or by
which their Properties are bound. Neither the Borrower nor the Subsidiaries are
in violation of their respective Articles of Incorporation (or Charter) or
Bylaws. No Default Conditions hereunder have occurred or are continuing as of
the date hereof.
Section 3.11 Compliance with Laws, Etc. Neither the Borrower nor its
Subsidiaries are in violation of any law, judgment, decree, order, ordinance, or
governmental rule or regulation to which they or any of their Properties is
subject in any respect that may reasonably be expected to have a material and
adverse affect on their business, Properties, or financial condition. Neither
the Borrower nor its Subsidiaries have failed to obtain or maintain any license,
permit, franchise, trademark, patents
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or other intellectual property rights, or other governmental authorization
necessary to the ownership of their Properties or to the conduct of their
business, which if not obtained would have or has a material, adverse effect on
the Borrower and its Subsidiaries, as a whole.
Section 3.12 ERISA. The Borrower and its Subsidiaries are in compliance in
all material respects with the applicable provisions of ERISA. Neither the
Borrower nor its Subsidiaries have incurred any "accumulated funding deficiency"
within the meaning of ERISA which is material, and they have not incurred any
material liability to PBGC in connection with any Plan.
Section 3.13 No Material Misstatements. No information, exhibit, or report
furnished or to be furnished by Borrower (or Guarantors) to Lender in connection
with this Agreement or any document, instrument or agreement executed or
delivered in connection herewith, contains any material misstatement of fact or
fails to state any material fact, the omission of which would render the
statements therein materially false or misleading.
Section 3.14 Regulation U, Etc.. Neither the Borrower nor any of its
Subsidiaries are engaged as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying "margin stock" within
the meaning of Regulation U of the Board of Governors of the Federal Reserve
System. No part of the indebtedness described herein shall be used at any time
to purchase or to carry margin stock within the meaning of Regulation U or to
extend credit to others for the purpose of purchasing or carrying any margin
stock if to do so would cause the Lenders to violate the provisions of
Regulation U. Borrower and each of its Subsidiaries is in full compliance with,
and has not violated or allowed to be violated any provision of, any of
Regulations G, T, U or X, any laws and regulations relating to employee benefit
plans, and/or all applicable environmental laws, rules and regulations.
Section 3.15 Filings. To the date hereof, the Borrower has filed all
reports and statements required to be filed with the Securities and Exchange
Commission. As of their respective dates, the reports and statements referred to
above complied in all material respects with all rules and regulations
promulgated by the Securities and Exchange Commission and did not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Section 3.16 Title, Etc. The Borrower and its Subsidiaries have good title
to their Properties, free and clear of all Liens except those referenced or
reflected in the Financial Statements, and except for any defects in title which
would not have a material adverse effect on the business, Properties, financial
condition or operations of the Borrower and its Subsidiaries (as a whole, on a
consolidated basis) or on the ability of the Borrower to perform its obligations
under this Agreement. Borrower and its Subsidiaries possess all trademarks,
copyrights, trade names, patents, licenses, and rights therein, adequate for the
conduct of their business as now conducted, except for such that would not have
a material adverse effect on the business, Properties, financial condition or
operations of the Borrower (and its Subsidiaries) or on the ability of the
Borrower (as a whole, on a consolidated basis) to perform its obligations under
this Agreement.
Section 3.17 Personal Holding Company; Subchapter S. Neither the Borrower
nor any of its
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Subsidiaries are "personal holding companies" as defined in Section 542 of the
Code, and neither the Borrower nor any of its Subsidiaries are "Subchapter S"
corporations within the meaning of the Code.
Section 3.18 Subsidiaries. As of the Closing Date, Borrower has no
Significant Subsidiaries other than the Significant Subsidiaries set forth under
the definition of "Significant Subsidiary" in Article I of this Agreement. All
Subsidiaries and Significant Subsidiaries of Borrower are identified and
described on Exhibit I to this Agreement.
Section 3.19 No Burdensome Restrictions. Neither Borrower nor any
Subsidiaries are parties to any agreement (including any collective bargaining
agreement) which could reasonably be expected to have a material adverse affect
on the assets or operations of the Borrower and the Subsidiaries as a whole.
Article IV. Conditions Precedent.
Section 4.01 Initial Conditions. Lenders' obligation to extend credit
and/or to issue any Letter of Credit, and Swing Line Lender's obligation to make
any Advance under the Swing Line Loan hereunder is subject to the Conditions
Precedent that Agent shall have received (or agreed in writing to waive or defer
receipt of) all of the following, each duly executed, dated and delivered as of
the date hereof, in form and substance satisfactory to Agent and its counsel:
(a) Notes and Loan Documents. This Agreement, the Revolving Credit
Notes, the Swing Line Note, the Foreign Currency Notes, the Guaranties of
each of the Guarantors, any Letter of Credit Application Agreements, the
Negative Pledge, and other documents executed in connection with this
Agreement (the "Loan Documents").
(b) Resolutions. Certified copies of resolutions of the Board of
Directors of the Borrower, Danek Medical, Inc., Warsaw Orthopaedic, Inc.,
Sofamor SNC, and Sofamor Danek, L.P., authorizing or ratifying the
execution, delivery, and performance, respectively, of the applicable Loan
Documents.
(c) Certificate of Existence. A certificate of existence of the
Borrower and each Guarantor from the state in which the Borrower and such
Guarantor is incorporated or organized, which certificate shall contain no
facts reasonably objectionable to Agent.
(d) Consents, Etc. Certified copies of all documents evidencing any
necessary corporate action, consents, and governmental approvals (if any)
with respect to this Agreement and the Loan Documents.
(e) Officer's Certificate. A certificate of the secretary or any
assistant secretary of the Borrower and each Guarantor certifying: (i) the
names of the officer or officers of the Borrower and the Guarantor
authorized to sign the applicable Loan Documents, together with a sample of
the true signature of such officer(s), and (ii) as to representations and
warranties of, and litigation involving, the Borrower and the Guarantor.
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(f) Charter and By-Laws and Organizational Documents. A copy of the
Borrower's (and each Guarantor's) by-laws and charter or articles of
incorporation (including all amendments thereto) certified by the secretary
or any assistant secretary of the Borrower (and the Guarantor), and in the
case of the charter or articles of incorporation, by the Secretary of State
of the state (or proper office of any foreign jurisdiction) in which the
Borrower (or Guarantor) is incorporated, as being true and complete copies
of the current charter or articles of incorporation and by-laws of the
Borrower (or Guarantor).
(g) Attorneys' Opinion Letter. An opinion letter addressed to Agent
from counsel for the Borrower and the Guarantors favorably opining as to
such matters as reasonably required by Agent.
(h) Payment of Fees, Etc. Payment of all outstanding fees and expenses
to Agent, Swing Line Lender, or any Lender, including all of Agent's
reasonable legal fees.
(i) Outside Indebtedness. A schedule disclosing all Debt of Borrower
and its Subsidiaries to third parties.
(j) Other. Such other documents as Agent may reasonably request.
Section 4.02 All Borrowings. The Lenders' obligation to extend credit
pursuant to this Agreement and to issue any Letter of Credit and Swing Line
Lender's obligation to make an Advance under the Swing Line Loan is subject to
the following additional Conditions Precedent which shall be met each time an
Advance (including the request for the issuance of a Letter of Credit) is
requested:
(a) The representations of the Borrower contained in Article III are
true and correct as of the date of the requested Advance (except the
representations and warranties in Section 3.06 are made only as of the date
of this Agreement and the representations and warranties in Section 3.07
and 3.08 shall take into account transactions and subsequent events
permitted by this Agreement), with the same effect as though made on the
date of such Advance; (b) There has been no material adverse change in the
Borrower's consolidated financial condition (which adverse change would be
reflected in Borrower's consolidated Financial Statements under GAAP) since
the date of the last borrowing hereunder; (c) No Default Condition or Event
of Default has occurred and continues to exist; (d) No material litigation
(including, without limitation, derivative actions), arbitration
proceedings or governmental proceedings not disclosed in writing by the
Borrower to the Agent prior to the date of the execution and delivery of
this Agreement is pending or known to be threatened against the Borrower
(and/or the Guarantors) and no material development not so disclosed has
occurred in any litigation, arbitration proceedings or governmental
proceedings so disclosed, which could reasonably be expected to materially
and adversely affect the financial position or business of the Borrower
(and/or the Guarantors) as a whole or impair the ability of the Borrower
(and/or the Guarantors) to perform its obligations under this Agreement or
any other Loan Documents, as applicable.
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Article V. Affirmative Covenants.
The Borrower covenants that, during the term of this Agreement (including
any extensions hereof) and until all indebtedness described herein shall have
been finally paid in full, unless Agent shall otherwise first consent in
writing, the Borrower shall:
Section 5.01 Financial Statements and Reports. Promptly furnish to Agent
and to each Lender:
(a) Annual Reports. As soon as available, and in any event within
ninety (90) days after the close of each Fiscal Year of the Borrower, the
audited consolidated Financial Statements of the Borrower setting forth the
audited consolidated balance sheets of the Borrower as at the end of such
year, and the audited consolidated statements of income, statements of cash
flows, and statements of stockholders' equity of the Borrower for such
year, setting forth in each case in comparative form (beginning when
comparative data are available) the corresponding figures for the preceding
Fiscal Year accompanied by the report of the Borrower's certified public
accountants. The audit opinion in respect of the Financial Statements of
the Borrower shall be the opinion of a firm of independent certified public
accountants among the "Big Six" accounting firms. If requested by Lender,
the financial information shall also be presented on an unaudited
consolidating basis;
(b) Quarterly and Year-to-Date Reports. As soon as available and in
any event within forty-five (45) days after the end of each Fiscal Quarter
that is not the end of the Fiscal Year, the consolidated and consolidating
unaudited balance sheets of the Borrower as of the end of such Fiscal
Quarter, and the consolidated unaudited statements of income and cash flow
of the Borrower for such quarter and for a period from the beginning of the
Fiscal Year to the close of such Fiscal Quarter;
(c) Compliance Reports. As soon as available and in any event within
ninety (90) days after the close of the Fiscal Year and within forty-five
(45) days after the end of each Fiscal Quarter (other than the fourth
Fiscal Quarter of each Fiscal Year), the calculations by Borrower of the
financial covenants contained in Article VII herein, along with a
certificate of compliance (in substantially the form as Exhibit G),
certified by the chief financial officer or treasurer of the Borrower,
stating that the Financial Statements were prepared in accordance with
GAAP, that the Financial Statements are true and correct, that the
financial covenants have been met (with supporting details of financial
covenant calculations) and that such officer has no knowledge of any Event
of Default or Default Condition, or if such officer has obtained such
knowledge, disclosing the nature, details, and period of existence of such
event;
(d) SEC Filings and Public Information. At the same time as they are
filed with the Securities and Exchange Commission, copies of the Borrower's
10-Q and 10-K reports, proxy statements and any other filings; and
(e) Other Information. Promptly upon its becoming available, such
other material information about Borrower, the Guarantors or the
indebtedness described herein as Agent may reasonably request from time to
time, including without limitation notice of the existence
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of any Default Condition or Event of Default, citations for material
violations of environmental laws or regulations, matters relating to
funding of employee benefit plans, and other information as any Lender,
through Agent, may reasonably request.
All such balance sheets and other Financial Statements referred to in Sections
5.01(a) and (b) hereof shall conform to GAAP on a basis consistent with those of
previous Financial Statements.
Section 5.02 Annual Certificates of Compliance. Concurrently with the
furnishing of the annual Financial Statements pursuant to Section 5.01(a)
hereof, furnish or cause to be furnished to Agent and each Lender a certificate
of compliance in a form substantially similar to Exhibit G hereto, or otherwise
reasonably satisfactory to Agent prepared by independent certified public
accountants acceptable to Agent, stating that in making the examination
necessary for their audit they have obtained no knowledge of any Default
Condition or Event of Default, or event which, after notice or lapse of time (or
both), would constitute a Default Condition or Event of Default or, if they have
obtained such knowledge, disclosing the nature, details, and period of existence
of such event.
Section 5.03 Taxes and Other Liens. Pay and discharge promptly all taxes,
assessments, and governmental charges or levies imposed upon the Borrower or its
Subsidiaries, or upon any of their income or Property as well as all claims of
any kind (including claims for labor, materials, supplies, and rent) which, if
unpaid, might become a Lien upon any or all of their Property; provided,
however, that neither the Borrower nor any Subsidiary shall be required to pay
any such tax, assessment, charge, levy, or claim if the amount, applicability,
or validity thereof shall currently be contested in good faith by appropriate
proceedings diligently conducted and if the Borrower (or the Subsidiary, as
applicable) shall establish reserves therefor adequate under GAAP.
Section 5.04 Maintenance.
(a) Maintain its and its Guarantors' corporate existence, name,
rights, and franchises subject to the terms of Section 6.07 hereof;
(b) observe and comply (to the extent necessary so that any failure
will not materially and adversely affect the business or Property of the
Borrower or the Guarantors) with all applicable laws, statutes, codes,
acts, ordinances, orders, judgments, decrees, injunctions, rules,
regulations, certificates, franchises, permits, licenses, authorizations,
and requirements of all federal, state, county, municipal, and other
governments; and
(c) maintain its Property and the Property of its Guarantors (and any
Property leased by or consigned to them or held under title retention or
conditional sales contracts) in good and workable condition at all times
and make all repairs, replacements, additions, and improvements to their
Property reasonably necessary and proper to ensure that the business
carried on in connection with their Property may be conducted properly and
efficiently at all times.
Section 5.05 Further Assurances. Promptly cure any defects in the creation,
issuance, and delivery of the Loan Documents. Borrower at its expense promptly
will execute and deliver to Agent upon request all such other and further
documents, agreements, and instruments in compliance with or accomplishment of
the covenants and agreements of Borrower in the Loan Documents, or to correct
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any omissions in the Loan Documents, all as may be reasonably necessary or
appropriate in connection therewith.
Section 5.06 Performance of Obligations.
(a) Pay the indebtedness described herein according to the terms of
the Loan Documents; and
(b) do and perform (and cause each Guarantor to perform), and cause to
be done and to be performed, every act and discharge all of the obligations
provided to be performed and discharged by Borrower (or Guarantor) under
the Loan Documents, at the time or times and in the manner specified.
Section 5.07 Insurance. Maintain and continue to maintain, and cause each
Subsidiary to maintain and continue to maintain, with financially sound and
reputable insurers, insurance satisfactory in type, coverage and amount to Agent
against such liabilities, casualties, risks, and contingencies and in such types
and amounts as is customary in the case of corporations engaged in the same or
similar businesses and similarly situated. Upon request of Agent, Borrower will
furnish or cause to be furnished to Agent from time to time a summary of the
insurance coverage of Borrower (or its Subsidiaries) in form and substance
satisfactory to Agent and if requested will furnish Agent copies of the
applicable policies.
Section 5.08 Accounts and Records. Keep books of record and account, in
which full, true, and correct entries will be made of all dealings or
transactions in accordance with GAAP, except only for changes in accounting
principles or practices with which Borrower's certified public accountants
concur.
Section 5.09 Right of Inspection. Permit any officer, employee, or agent of
Agent or any Lender as may be designated by Agent to visit and inspect any of
the Properties of the Borrower and the Guarantors, to examine Borrower's (or
Guarantors') financial record and accounts, to take copies and extracts from
such financial record and financial accounts, and to discuss the affairs,
finances, and accounts of Borrower (or of the Guarantors) with the respective
officers, accountants, and auditors of Borrower (or of the Guarantors), all at
such reasonable times and as often as Agent may reasonably desire.
Section 5.10 Notice of Certain Events. Promptly, but in any case within
fifteen (15) Business Days, notify Agent if the Borrower learns of the
occurrence of (i) any event that constitutes a Default Condition or Event of
Default together with a detailed statement by a responsible officer of the steps
being taken as a result thereof; or (ii) the receipt of any notice from, or the
taking of any other action by, the holder of any promissory note, debenture, or
other evidence of material Debt of the Borrower (or a Guarantor) with respect to
a claimed default, together with a detailed statement by a responsible officer
of the Borrower specifying the notice given or other action taken by such holder
and the nature of the claimed default and what action the Borrower is taking or
proposes to take with respect thereto; or (iii) any legal, judicial, or
regulatory proceedings affecting Borrower (or a Guarantor) in which the amount
involved is material and is not covered by insurance or which, if adversely
determined, would have a material and adverse effect on the business or the
financial condition of the Borrower and the Guarantors as a whole; or (iv) any
dispute between the Borrower (or a Guarantor) and any
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governmental or regulatory authority or any other Person, entity, or agency
which, if adversely determined, would materially interfere with the consolidated
business operations of the Borrower and Guarantors as a whole; or (v) any
material adverse changes, either individually or in the aggregate, in the
assets, liabilities, financial condition, business, operations, affairs, or
circumstances of the Borrower from those reflected in the Financial Statements
or from the facts warranted or represented in any Loan Document.
Section 5.11 ERISA Information and Compliance. Comply with ERISA and all
other applicable laws governing any pension or profit sharing plan or
arrangement to which the Borrower or any Subsidiary is a party. The Borrower
shall provide Agent with notice of any "reportable event" or "prohibited
transaction" or the imposition of a "withdrawal liability" within the meaning of
ERISA.
Section 5.12 Additional Guaranties. Within thirty (30) days after a
Subsidiary becomes a Significant Subsidiary or the Borrower acquires or creates
a Significant Subsidiary, the Borrower shall cause the Significant Subsidiary to
execute a Guaranty, in substantially the form and substance set forth in Exhibit
F, guaranteeing the indebtedness as set forth in this Agreement and the Loan
Documents. Borrower shall pay the costs and expenses, including without
limitation Agent's legal fees and expenses, in connection with the preparation,
execution and review of such Guaranty.
Article VI. Negative Covenants.
The Borrower covenants and agrees that, during the term of this Agreement
and any extensions hereof and until the indebtedness described herein has been
paid and satisfied in full, unless Agent shall otherwise first consent in
writing, the Borrower (on a consolidated basis, taking into account all its
Subsidiaries) will not, either directly or indirectly:
Section 6.01 Debts, Guaranties, and Other Obligations. Incur, create,
assume, suffer to exist or in any manner become or be liable with respect to any
Debt; provided that subject to all other provisions of this Article, the
foregoing prohibitions shall not apply to: (a) any Debt (and refinancings
thereof) reflected on Borrower's Financial Statements for the periods ending
December 31, 1996 and March 31, 1997; (b) indebtedness incurred under this
Agreement; (c) trade indebtedness incurred in the ordinary course of business
not to exceed amounts historically and customarily incurred by Borrower (or its
Significant Subsidiaries, as applicable); (d) any subordinate indebtedness in
form, amount and substance reasonably approved in advance in writing by the
Lenders (which approval shall not be unreasonably withheld) and subordinated by
subordination agreements reasonably satisfactory to the Lenders; (e) Debt of a
corporation acquired by the Borrower or a Significant Subsidiary subsequent to
the date of this Agreement, which Debt was incurred prior to such acquisition
and is outstanding on the date of such acquisition; (f) intercompany Debt
arising solely among Borrower and its Subsidiaries that is not otherwise
prohibited under Section 6.03 of this Agreement; and (g) other Debt (including
final judgments not covered by insurance and capital expenditures of Borrower
and its Significant Subsidiaries) not to exceed $20,000,000.00 in the aggregate
for Borrower and its Subsidiaries. Notwithstanding the foregoing, Debt for
purposes of subsection (g) of this Section, shall not include the liability
represented by the remaining purchase price incurred with respect to the
Borrower's acquisition of Genetics Institute, Inc.
Section 6.02 Liens. Grant any Lien in, or otherwise encumber, any of its
Properties or assets
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or permit any of the Significant Subsidiaries to grant any Lien in, or otherwise
encumber, any of such Significant Subsidiary's Properties or assets, except for
(i) Liens now existing as of the Closing Date which are disclosed in the
Financial Statements; (ii) Liens existing on the date of acquisition of any
corporation subsequently acquired by Borrower as a Significant Subsidiary in
accordance with this Agreement; (iii) liens for taxes not yet due and payable or
which are being actively contested in good faith by appropriate proceedings;
(iv) Liens arising in favor of the Lenders pursuant to this Agreement; (v) Liens
incurred or pledges and deposits made in connection with worker's compensation,
unemployment insurance, old age pensions, social security and public liability
laws and similar legislation; (vi) statutory liens of landlords and other liens
imposed by law, such as carriers', warehousemen's, mechanics', materialmen's and
vendor's liens, incurred in the ordinary course of business; (vii) zoning
restrictions, easements, licenses, reservations, restrictions on the use or
transfer of real property which do not in the aggregate materially detract from
the value of the Property or assets of the Borrower and its Significant
Subsidiaries taken as a whole, or materially impair the use of such property or
assets in the operations of the business of the Borrower or any Significant
Subsidiary; (viii) attachment, judgment or similar Liens so long as the finality
of any judgments related thereto in excess of $250,000.00 in the aggregate is
being contested in good faith, and for which adequate reserves have been
provided in the financial statements of the Borrower; (ix) Liens securing the
deferred purchase price for any Property; (x) Permitted Encumbrances; and (xi)
renewals and extensions of liens described in subsections (i) through (x) above.
Section 6.03 Loans and Advances. Make or permit to remain outstanding any
loans or advances to any Person, except that, subject to all other provisions of
this Article, the foregoing restriction shall not apply to:
(a) endorsements of negotiable instruments in the ordinary course of
business;
(b) loan or advances reflected in the Financial Statements of Borrower
for the periods ending December 31, 1996 and March 31, 1997 (and
refinancings of such loans without increasing the principal amounts
thereof);
(c) loans or advances to Significant Subsidiaries or to any Affiliate
of Borrower which executes a guaranty in favor of Agent and Lenders in
substantially the same form as that executed by Guarantors;
(d) loans made to any Person (not otherwise referred to in this
Section), not to exceed $3,000,000 in principal amount outstanding at any
time.
Section 6.04 Investments. Subject to any limitations otherwise provided in
this Agreement but excepting transactions allowed under Section 6.08 hereof,
make investments in any Person, except that, the foregoing restriction shall not
apply to: (a) investments in direct obligations of the United States of America
or any agency thereof; (b) investments in certificates of deposit having
maturities of less than one year, or repurchase agreements issued by commercial
banks in the United States of America having capital and surplus in excess of
$250,000,000, or commercial paper of the highest quality; (c) investments in
money market funds so long as the entire investment therein is fully insured or
so long as the fund is a fund operated by a commercial bank of the type
specified in (b) above; and (d) investments made pursuant to the Investment
Policy of Borrower dated August of 1994 which is attached hereto as Exhibit J.
The Borrower may not materially amend such investment policy without
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the consent of Agent on behalf of the Majority Lenders.
Section 6.05 Sales and Leasebacks. Enter into any arrangement, directly or
indirectly, with any Person by which the Borrower (or a Guarantor) shall sell or
transfer any Property, whether now owned or hereafter acquired, and by which the
Borrower (or a Guarantor) shall then or thereafter rent or lease as lessee such
Property or any part thereof or other Property that Borrower (or a Guarantor)
intends to use for substantially the same purpose or purposes as the Property
sold or transferred.
Section 6.06 Nature of Business. Suffer or permit any material change to be
made in the character of the business of the Borrower or the Guarantors as a
whole, as carried on as of the date hereof.
Section 6.07 Mergers, Consolidations, Etc. Merge, consolidate or reorganize
with or into, or sell, assign, lease, or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
Property (whether now owned or hereafter acquired) to, or become an Affiliate
of, any Person; provided, however, that if no Event of Default or Default
Condition has occurred and is continuing, Borrower (or Guarantor) may merge,
reorganize or consolidate with any Person as long as, immediately after and
giving effect to any such merger, reorganization or consolidation no event shall
occur or would reasonably be expected to occur which constitutes a Default
Condition or an Event of Default and, in the case of any such merger,
reorganization or consolidation to which Borrower (or Guarantor) is a party, the
Borrower (or Guarantor if the Borrower is not a party to such reorganization) is
the surviving corporation and has a consolidated net worth equal to or greater
than Borrower (or Guarantor, as applicable) prior to such merger, reorganization
or consolidation.
Section 6.08 Acquisitions. Without the written approval of Agent on behalf
of the Majority Lenders, acquire the assets of or the shares of an unrelated
entity or form a joint venture (or partnership) with an unrelated entity, during
the term hereof, provided, that the foregoing shall not apply to acquisitions
(or joint ventures) in a business related to Borrower's current activities with
an aggregate purchase price (or capital contribution) for all acquisitions and
joint ventures aggregating $10,000,000 or less in any rolling twelve-month
period. In the event Borrower shall request Lenders to approve an acquisition or
joint venture under this Section, Borrower shall supply to Agent at least thirty
(30) days prior to such proposed acquisition or capital contribution, historical
audited (if prepared) financial statements of the entity to be acquired (or the
entity to be a joint venturer) for the two prior fiscal years, the most recent
unaudited report of the entity to be acquired (or the entity to be a joint
venturer), and revised internal projections of Borrower (on a consolidated
basis) including the entity to be acquired (or joint venture) such other
financial information reasonably requested by Agent or any Lender.
Section 6.09 Inconsistent Agreements. Enter into any agreement containing
any provision which would be violated or breached by the performance by Borrower
of its obligations.
Section 6.10 Fiscal Year. Change its Fiscal Year without the written
consent of the Majority Lenders.
Section 6.11 Transactions with Affiliates. Enter into any transaction with
its Subsidiaries or any Affiliates except on an arms-length basis.
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Section 6.12 Negative Pledge to Other Persons. Give or allow any Subsidiary
to give any negative pledge agreement to any Person other than Lenders and Swing
Line Lender, and/or otherwise agree with any Person not to grant liens on or
encumber the assets of Borrower or any of its Subsidiaries.
Article VII. Financial Covenants. The Borrower covenants and agrees that,
during the term of this Agreement and any extensions hereof and until the
indebtedness described herein has been paid and satisfied in full, the Borrower
and its consolidated Subsidiaries, calculated on a consolidated basis, will not:
Section 7.01 Financial Covenants.
(a) Maximum Funded Debt to EBITDA. Permit Borrower's ratio of Total Funded
Debt to EBITDA to be greater than 1.5 to 1.0 as of the end of each Fiscal
Quarter, measured on a trailing four (4) Fiscal Quarter basis.
(b) Maximum Funded Debt to Total Capitalization. Permit the Borrower's
ratio of Funded Debt to Total Capitalization to exceed .50 to 1.0 at any time.
(c) Minimum Tangible Net Worth. Permit Borrower's Tangible Net Worth to be
less at any time than the following amounts for the periods indicated below:
<TABLE>
<CAPTION>
Time Periods Minimum Tangible Net Worth
------------ --------------------------
<S> <C>
From the Closing Date
through September 29, 1997 $65,000,000, plus 50% of cumulative net income for
the Fiscal Quarter ended June 30, 1997, plus 75% of
net cash proceeds of capital stock of Borrower
during such period ("3Q 97 Required Worth").
From September 30, 1997
through December 30, 1997 3Q 97 Required Worth, plus 50% of cumulative net income for the
Fiscal Quarter ended September 30, 1997, plus 75% of net
cash proceeds of capital stock of Borrower during such
period ("4Q 97 Required Worth").
From December 31, 1997
through March 30, 1998 4Q 97 Required Worth, plus 50% of cumulative net income for the
Fiscal Quarter ended December 31, 1997, plus 75% of net cash
proceeds of capital stock of Borrower during such period
("1Q 98 Required Worth").
</TABLE>
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<PAGE> 44
<TABLE>
<S> <C>
From March 31, 1998
through June 29, 1998 1Q 98 Required Worth, plus 50% of cumulative net income for the
Fiscal Quarter ended March 31, 1998, plus 75% of net cash
proceeds of capital stock of Borrower during such period
("2Q 98 Required Worth").
From June 30, 1998
through September 29, 1998 2Q 98 Required Worth, plus 50% of cumulative net income for the
Fiscal Quarter ended June 30, 1998, plus 75% of net cash
proceeds of capital stock of Borrower during such period
("3Q 98 Required Worth").
From September 30, 1998
through December 30, 1998 3Q 98 Required Worth, plus 50% of cumulative net income for the
Fiscal Quarter ended September 30, 1998, plus 75% of net
cash proceeds of capital stock of Borrower during such
period ("4Q 98 Required Worth").
From December 31, 1998
through March 30, 1999 4Q 98 Required Worth, plus 50% of cumulative net income for the
Fiscal Quarter ended December 31, 1998, plus 75% of net cash
proceeds of capital stock of Borrower during such period
("1Q 99 Required Worth").
From March 31, 1999
through June 29, 1999 1Q 99 Required Worth, plus 50% of cumulative net income for the
Fiscal Quarter ended March 31, 1999, plus 75% of net cash
proceeds of capital stock of Borrower during such period
("2Q 99 Required Worth").
From June 30, 1999
through September 29, 1999 2Q 99 Required Worth, plus 50% of cumulative net income for the
Fiscal Quarter ended June 30, 1999, plus 75% of net cash
proceeds of capital stock of Borrower during such period
("3Q 99 Required Worth").
From September 30, 1999
through December 30, 1999 3Q 99 Required Worth, plus 50% of cumulative net income for the
Fiscal Quarter ended September 30, 1999, plus 75% of net
cash proceeds of capital stock of Borrower during such
period ("4Q 99 Required Worth").
</TABLE>
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<PAGE> 45
<TABLE>
<S> <C>
From December 31, 1999
through March 30, 2000 4Q 99 Required Worth, plus 50% of cumulative net income for the
Fiscal Quarter ended December 31, 1999, plus 75% of net cash
proceeds of capital stock of Borrower during such period
("1Q 2000 Required Worth").
From March 31, 2000
through Maturity 1Q 2000 Required Worth, plus 50% of cumulative net income for the
Fiscal Quarter ended March 31, 2000, plus 75% of net cash
proceeds of capital stock of Borrower during such period.
</TABLE>
(d) Earnings. Fail to have positive earnings (pre-tax), measured on a
Trailing Four Quarter Basis, and calculated on the last day of each Fiscal
Quarter.
Article VIII. Events of Default.
Section 8.01 Events of Default. Any of the following events shall be
considered an Event of Default as those terms are used in this Agreement:
(a) Principal and Interest Payments. The Borrower fails to make
payment by 11:00 a.m. (Nashville, Tennessee time) within five (5) days when
due of any installment of interest on the Revolving Credit Notes, the
Foreign Currency Notes, or the Swing Line Note, or the Borrower fails to
make payment by 11:00 a.m. (Nashville, Tennessee time) on the due date, of
any principal due under the Revolving Credit Notes, the Foreign Currency
Notes or Swing Line Note, or the Borrower fails to pay within fifteen (15)
days when due any other payment due hereunder or under any of the Loan
Documents; or
(b) Representations and Warranties. Any representation or warranty
made by the Borrower or any Guarantor in any Loan Document is incorrect in
any material respect as of the date thereof; or any representation,
statement (including financial statements), certificate, or data furnished
or made by Borrower in any Loan Document with respect to any indebtedness
is untrue in any material respect, as of the date as of which the facts
therein set forth were stated or certified; or
(c) Borrower fails to perform any term, obligation or covenant under
Section 5.10 or Article VII.
(d) Other Obligations. Borrower (or Guarantor, as applicable) fails to
perform any of its other obligations as required by and contained in this
Agreement or any Loan Document, and such failure to perform is not cured
within thirty (30) days following the earlier of (i) the Borrower or a
Subsidiary obtains knowledge thereof, or (ii) receipt of written notice
thereof is sent to the Borrower or a Subsidiary; or
(e) Involuntary Bankruptcy or Receivership Proceedings. A receiver,
custodian,
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<PAGE> 46
liquidator, or trustee of the Borrower or any Guarantor, or of any of their
Properties, is appointed by the order or decree of any court or agency or
supervisory authority having jurisdiction; or the Borrower or any Guarantor
is adjudicated bankrupt or insolvent; or any of the Property of the
Borrower or any Guarantor is sequestered by court order or a petition is
filed against the Borrower or any Guarantor under any state or federal
bankruptcy, reorganization, debt arrangement, insolvency, readjustment of
debt, dissolution, liquidation, or receivership law of any jurisdiction,
whether now or hereafter in effect, and is not dismissed within 60 days of
the filing thereof; or
(f) Voluntary Petitions. The Borrower or any Guarantor files a
petition in voluntary bankruptcy to seek relief under any provision of any
bankruptcy, reorganization, debt arrangement, insolvency, readjustment of
debt, dissolution, or liquidation law of any jurisdiction, whether now or
hereafter in effect, or consents to the filing of any petition against it
under any such law; or
(g) Assignments for Benefit of Creditors, Etc. The Borrower or any
Guarantor makes an assignment for the benefit of its creditors, or admits
in writing its inability to pay its debts generally as they become due, or
consents to the appointment of a receiver, trustee, or liquidator of the
Borrower or any Guarantor or of all or any part of their Properties; or
(h) Discontinuance of Business, Etc. The Borrower or a Guarantor
discontinues its principal business; or
(i) Undischarged Judgments. A final judgment which, with other
outstanding final judgments against the Borrower and its Subsidiaries,
exceeds an aggregate of $1,000,000, or otherwise has a material adverse
effect, shall be rendered against the Borrower or any of its Subsidiaries,
if, (i) within 60 days after entry thereof, such judgment shall not have
been discharged or execution thereof stayed pending appeal or (ii)
immediately after the expiration of any such stay, such judgment shall not
have been discharged; or
(j) Violation of Laws, Etc. The Borrower or any Subsidiary violates or
otherwise fails to comply with any law, rule, regulation, decree, order, or
judgment under the laws of the United States of America, or of any state or
jurisdiction thereof the effect of which has a material and adverse impact
on the Borrower and its Subsidiaries as a whole; or the Borrower or any
Subsidiary fails or refuses at any and all times to remain current in its
or their financial reporting requirements pursuant to such laws, rules, and
regulations or pursuant to the rules and regulations of any exchange upon
which the shares of the Borrower are traded; or
(k) Default on Other Debt. A default by Borrower (or any Subsidiary)
on any other indebtedness which individually or in the aggregate exceeds
$1,000,000, or breach of any covenant or agreement contained in any
agreement relating to such indebtedness, causing or permitting the
acceleration of such indebtedness; or
(l) Change of Control. Any Person (or related group of Persons) which
does not presently own 5% or more of the outstanding shares of Borrower,
obtains beneficial ownership of more than 25% of the Voting Shares of
Borrower; or
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<PAGE> 47
(m) Default under Guaranty. There exists a default under any Guaranty
subject to any cure or grace periods therein; or
(n) Dissolution Proceedings. Borrower commences dissolution
proceedings under applicable law; or
(o) Employee Benefit Plan Liability. Borrower or any Subsidiary incurs
any liability or potential liability under any employee benefit plan that
would have a material adverse effect on the Borrower and/or any of its
Subsidiaries as a whole.
Section 8.02 Remedies. Upon the happening of any Event of Default set forth
above, with the exception of those events set forth in Section 8.01(e) and
8.01(f): (i) Agent, acting pursuant to Lenders' direction as set forth in
Article XII, may declare the entire principal amount of all indebtedness under
this Agreement then outstanding, including interest accrued thereon, to be
immediately due and payable without presentment, demand, protest, notice of
protest, or dishonor or other notice of default of any kind, all of which
Borrower hereby expressly waives, (ii) at Lenders' sole discretion and option,
all obligations of any of the Lenders under this Agreement shall immediately
cease and terminate unless and until each of the Lenders shall reinstate such
obligations in writing; and/or (iii) Lenders may bring an action to protect or
enforce their rights under the Loan Documents or seek to collect the
indebtedness described herein by any lawful means.
Upon the happening of any event specified in Section 8.01(e) and Section
8.01(f) above: (i) all indebtedness described herein, including all principal,
accrued interest, and other charges or monies due in connection therewith shall
be immediately and automatically due and payable in full, without presentment,
demand, protest, or dishonor or other notice of any kind, all of which Borrower
hereby expressly waives, (ii) all obligations of Lenders under this Agreement
shall immediately cease and terminate unless and until each of the Lenders shall
reinstate such obligations in writing; or (iii) Lenders may bring an action to
protect or enforce their rights under the Loan Documents or seek to collect the
indebtedness described herein and/or enforce the obligations evidenced herein by
any lawful means.
Section 8.03 Default Conditions. Any of the following events shall be
considered a Default Condition:
(a) The Borrower suffers a material adverse change in its financial
condition, which adverse change would be reflected in Borrower's
consolidated Financial Statements under GAAP; and
(b) Should any event occur that except for the giving of notice and/or
the passage of time would be an Event of Default.
Upon the occurrence of a Default Condition or at any time thereafter until
such Default Condition no longer exists, the Borrower agrees that the Lenders,
in their sole discretion, and without notice to Borrower, may immediately cease
making any Advances, all without liability whatsoever to Borrower or any other
Person whomsoever, all of which is expressly waived hereby. Borrower releases
the Lenders and the Agent from any and all liability whatsoever, whether direct,
indirect, or consequential, and whether seen or unforeseen, resulting from or
arising out of or in connection with
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<PAGE> 48
Lenders' determination to cease making Advances pursuant to this Section.
Article IX. General Provisions.
Section 9.01 Notices. All communications under or in connection with this
Agreement or any of the other Loan Documents shall be in writing and shall be
mailed by first class certified mail, postage prepaid, or otherwise sent by
telex, telegram, telecopy, or other similar form of rapid transmission confirmed
by mailing (in the manner stated above) a written confirmation at substantially
the same time as such rapid transmission, or personally delivered to an officer
of the receiving party. All such communications shall be mailed, sent, or
delivered as follows:
(a) if to Borrower, to its address shown below, or to such other
address as Borrower may have furnished to Agent in writing:
Sofamor Danek Group, Inc.
1800 Pyramid Place
Memphis, TN 38132
Attn: Mr. Jack B. Pearson, Jr.
With a copy to Mr. J. Mark Merrill
Mr. Richard E. Duerr, Jr., Esq.
(b) if to Agent, to its address shown below, or to such other address
or to such individual's or department's attention as it may have furnished
Borrower in writing:
SunTrust Bank, N.A.
6410 Poplar Avenue, Suite 320
Memphis, Tennessee 38119
Attn: Bryan W. Ford
(c) if to Lenders, to the address of each of the Lenders as shown
beside the respective signature of each of the Lenders.
Any communication so addressed and mailed by certified mail shall be deemed to
be given when so mailed.
Section 9.02 Invalidity. In the event that any one or more of the
provisions contained in any Loan Document for any reason shall be held invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision of any Loan Document.
Section 9.03 Survival of Agreements. All representations and warranties of
Borrower in this Agreement and all covenants and agreements in this Agreement
not fully performed before the Closing Date of this Agreement shall survive the
Closing Date.
Section 9.04 Successors and Assigns. The Borrower may not assign its rights
or delegate duties under this Agreement or any other Loan Document. All
covenants and agreements contained by
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<PAGE> 49
or on behalf of the Borrower in any Loan Document shall bind the Borrower's
successors and assigns and shall inure to the benefit of the Agent, each Lender,
the Swing Line Lender, and their respective successors and assigns.
Section 9.05 Waivers. Pursuant to T.C.A. Section 47-50-112, no action or
course of dealing on the part of Agent, the Swing Line Lender, or any Lender,
its officers, employees, consultants, or agents, nor any failure or delay by
Agent, Swing Line Lender, or any Lender with respect to exercising any right,
power, or privilege of Agent, Swing Line Lender, or any Lender under any of the
Loan Documents shall operate as a waiver thereof, except as otherwise provided
in this Agreement. Acting pursuant to the requirements of Article XII herein,
Agent may from time to time waive any requirement hereof, including any of the
Conditions Precedent; however no waiver shall be effective unless in writing and
signed by the Agent. The execution by Agent of any waiver shall not obligate
Agent, Swing Line Lender, or any Lender to grant any further, similar, or other
waivers.
Section 9.06 Cumulative Rights. The rights and remedies of Agent, Swing
Line Lender, or any Lender under each Loan Document shall be cumulative, and the
exercise or partial exercise of any such right or remedy shall not preclude the
exercise of any other right or remedy.
Section 9.07 Construction. This Agreement and the other Loan Documents
constitute a contract made under and shall be construed in accordance with and
governed by the laws of the State of Tennessee.
Section 9.08 Time of Essence. Time is of the essence with regard to each
and every provision of this Agreement.
Section 9.09 Costs, Expenses, and Indemnification. Borrower agrees to: (a)
pay all reasonable out-of-pocket costs and expenses of (i) the Agent in
connection with the negotiation, preparation, execution and delivery of this
Agreement and the other Loan Documents; (ii) the Agent and the Lenders in
connection with enforcement of the Loan Documents, including, without
limitation, in connection with any such enforcement, the reasonable fees and
disbursements of counsel (including allocation of cost of in-house counsel) for
the Agent and each of the Lenders; and (b) indemnify the Agent and each Lender,
its officers, directors, employees, representatives and agents from and hold
each of them harmless against any and all losses, liabilities, claims, damages
or expenses (but excluding any such losses, liabilities, claims, damages or
expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified) incurred by any of them
as a result of, or arising out of, or related to, or by reason of, any
litigation or other proceeding related to the entering into and/or performance
of any Loan Document or the use of proceeds of any Loans hereunder or the
consummation of any other transactions contemplated in the Loan Documents.
Section 9.10 Entire Agreement; No Oral Representations Limiting
Enforcement. This Agreement represents the entire agreement between the parties
hereto except for such other agreements set forth in the Loan Documents, and any
and all oral statements heretofore made regarding the matters set forth herein
are merged herein.
Section 9.11 Amendments. The parties hereto agree that this Agreement may
not be modified or amended except in writing signed by the parties hereto.
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Section 9.12 Confidentiality. The Agent and the Lenders covenant and agree
to keep all information provided to them confidential in accordance with the
obligations of Agent and the Lenders under applicable law and regulations.
Notwithstanding the foregoing, the Agent and Lenders shall have the right: (i)
to disseminate financial information to their affiliates or to any participant
or assignee (or a prospective participant or assignee) of this Agreement; and
(ii) to disseminate any information previously made public by Borrower.
Section 9.13 Distribution of Information. The Borrower hereby authorizes
the Agent, the Swing Line Lender, and each Lender, as the Agent, the Swing Line
Lender, and each Lender may elect in its sole discretion, to discuss with and
furnish to any Affiliate, to any government or self-regulatory agency with
jurisdiction over the Agent, the Swing Line Lender, and each Lender, or, subject
to the terms of Section 12.12(e) hereof, to any participant or prospective
participant, all financial statements, audit reports and other information
pertaining to the Borrower (or any Subsidiary) whether such information was
provided by Borrower or prepared or obtained by the Agent or third parties.
Neither the Agent nor any of its employees, officers, directors or agents make
any representation or warranty regarding any audit reports or other analyses of
Borrower which the Agent may elect to distribute, whether such information was
provided by Borrower or prepared or obtained by the Agent or third parties, nor
shall the Agent or any of its employees, officers, directors or agents be liable
to any Person receiving a copy of such reports or analyses for any inaccuracy or
omission contained in such reports or analyses or relating thereto.
Section 9.14 Counterparts; Facsimile Signatures. This Agreement may be
executed in one or more counterparts, all which shall, taken together,
constitute one original. The parties agree that facsimile signatures of the
parties hereto shall be deemed to be and treated as original signatures of such
parties.
Article X. Jury Waiver.
Section 10.01 Jury Waiver. IF ANY ACTION OR PROCEEDING INVOLVING THIS LOAN
AGREEMENT OR ANY LOAN DOCUMENT IS COMMENCED IN ANY COURT OF COMPETENT
JURISDICTION, BORROWER, AGENT, SWING LINE LENDER, AND EACH LENDER HEREBY WAIVE
THEIR RIGHTS TO DEMAND A JURY TRIAL.
Article XI. Hazardous Substances.
Section 11.01 Representation and Indemnity Regarding Hazardous Substances.
(a) Borrower has no knowledge of any spills, releases, discharges, or
disposal of Hazardous Substances that have occurred or are presently
occurring on or onto any of its Property (or the Property of any
Subsidiary); or of any spills or disposal of Hazardous Substances that have
occurred or are occurring off any of its Property as a result of any
construction on or operation and use of such Property; in each case under
this paragraph (a) so as to violate any Environmental Law in a manner that
would have a material adverse effect on the business, Properties or
financial condition of the Borrower (or a Subsidiary) or on the ability of
the Borrower (or a Subsidiary) to perform its obligations under this
Agreement or any of the other Loan Documents.
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<PAGE> 51
(b) The Borrower represents that its Property and any current
operation concerning its Property (and the Property of any Subsidiary) and
its business operations are not in material violation of any applicable
Environmental Law, and the Borrower has no actual knowledge or any notice
from any governmental body claiming that such Property or such business
operations or operations or uses of the Property have or may result in any
violation of any Environmental Law or requiring or calling attention to the
need for any work, repairs, corrective actions, construction alterations or
installation on or in connection with such Property or the Borrower's
business in order to comply with any Environmental Law with which Borrower
has not complied, in each case under this paragraph (b) wherein such
violation would have a material adverse effect on the business, Properties,
or financial condition of the Borrower. If there are any such notices which
would have such effect with which Borrower has not complied, Borrower shall
provide Agent with copies thereof. If Borrower receives any such notice
which would have such effect, Borrower will immediately provide a copy to
Agent.
(c) Borrower agrees to indemnify and hold Agent, Swing Line Lender,
and Lenders harmless from and against any and all claims, demands, damages,
losses, liens, liabilities, penalties, fines, lawsuits, and other
proceedings, costs and expenses (including, without limitation, reasonable
attorneys' fees), arising directly or indirectly from or out of, or in any
way connected with (i) the presence of any Hazardous Substances on any of
its Property (or the Property of a Subsidiary) in violation of any
Environmental Law; (ii) any violation or alleged violation of any
Environmental Law relating to Hazardous Substances on any of its Property
(or the Property of a Subsidiary), whether attributable to events occurring
before or after acquisition of any of such Property; (iii) any violation of
any Environmental Law by the Borrower (or a Subsidiary) resulting from the
conduct of its business, use of its Property, or otherwise; or (iv) any
inaccuracy in the certifications contained in Section 11.01(a).
Article XII. The Agent.
Section 12.01 Appointment of Agent. Each Lender hereby designates STB as
Agent to administer all matters concerning the Loans and to act as herein
specified. Each Lender hereby irrevocably authorizes, and each holder of any
Revolving Credit Note or Foreign Currency Note by the acceptance of a Revolving
Credit Note or a Foreign Currency Note, shall be deemed irrevocably to
authorize, the Agent to take such actions on its behalf under the provisions of
this Agreement, the other Loan Documents and all other instruments and
agreements referred to herein or therein, and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Agent by the terms hereof and thereof and such other powers as
are reasonably incidental thereto. The Agent may perform any of its duties
hereunder by or through its agents or employees. The Lenders agree that neither
the Agent nor any of its directors, officers, employees or agents shall be
liable for any action taken or omitted to be taken by it or them hereunder or in
connection herewith, except for its or their own gross negligence or willful
misconduct. The Lenders agree that the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any of the Lenders, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise be imposed upon or exist against the Agent.
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<PAGE> 52
Section 12.02 Authorization of Agent with Respect to the Loan Documents.
(a) Each Lender hereby authorizes the Agent to enter into each of the Loan
Documents and to take all action contemplated thereby, all in its capacity as
Agent for the ratable benefit of the Lenders. All rights and remedies under the
Loan Documents may be exercised by the Agent for the benefit of the Agent and
the Lenders upon the terms thereof. The Lenders further agree that the Agent may
assign its rights and obligations under any of the Loan Documents to any
Affiliate of the Agent, if necessary or appropriate under applicable law, which
assignee in each such case shall (subject to compliance with any requirements of
applicable law governing the assignment of such Loan Documents) be entitled to
all the rights of the Agent under and with respect to the applicable Loan
Document.
(b) The Agent shall administer the Loans described herein and the Loan
Documents on behalf of and for the benefit of the Lenders in all respects as if
the Agent were the sole Lender under the Loan Documents, except that:
(i) The Agent shall administer the Loans and the Loan Documents with a
degree of care at least equal to that customarily employed by the Agent in
the administration of similar credit facilities for its own account.
(ii) The Agent shall not, without the consent of the Majority Lenders,
take any of the following actions:
(A) agree to a waiver of any material requirements, covenants, or
obligations of the Borrower contained herein;
(B) agree to any amendment to or modification of any of the terms
of any of the Loan Documents;
(C) waive any Event of Default or Default Condition as set forth
in the Credit Agreement;
(D) accelerate the indebtedness described in the Credit Agreement
following an Event of Default;
(E) initiate litigation or pursue other remedies to enforce the
obligations contained in any Loan Document or to collect the
indebtedness described herein.
(iii) The Agent shall not, without the consent of all of the Lenders,
take any of the following actions:
(A) extend the maturity of any payment of principal of or
interest on the indebtedness described herein;
(B) reduce any fees paid to or for the benefit of Lenders under
this Credit Agreement;
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(C) reduce the rate of interest charged on the indebtedness
described herein;
(D) release any Guaranty;
(E) waive, amend, modify or change the Conditions Precedent;
(F) postpone any date fixed for the payment in respect of
principal of, or interest on the indebtedness described herein, or any
fees hereunder;
(G) modify the definition of Majority Lenders; or
(H) modify this Section 12.02(b)(ii) or (iii).
(c) The Agent, upon its receipt of actual notice thereof, shall notify
the Lenders of: (i) each proposed action that would require the consent of
the Lenders as set forth herein, or (ii) any action proposed to be taken by
the Agent in the administration of the Loans and Loan Documents not in the
ordinary course of business; provided that any failure of the Agent to give
the Lenders any such notice shall not alone be the basis for any liability
of the Agent to the Lenders except for the Agent's gross negligence or
willful misconduct.
(d) The Lenders agree that the Agent shall incur no liability under or
in respect of this Agreement with respect to anything which it may do or
refrain from doing in the reasonable exercise of its judgment or which may
seem to it to be necessary or desirable in the circumstances, except for
its gross negligence or willful misconduct.
(e) The Agent shall not be liable to the Lenders or to any Lender in
acting or refraining from acting under this Agreement or any other Loan
Document in accordance with the instructions of the Majority Lenders or all
of the Lenders, where expressly required by this Agreement, and any action
taken or failure to act pursuant to such instructions shall be binding on
all Lenders. In each circumstance where any consent of or direction from
the Majority Lenders or all of the Lenders is required or requested by
Agent, the Agent shall send to the Lenders a notice setting forth a
description in reasonable detail of the matter as to which consent or
direction is requested and the Agent's proposed course of action with
respect thereto. In the event the Agent shall not have received a response
from any Lender within five (5) Business Days after Agent sends such
notice, such Lender shall be deemed not to have agreed to the course of
action proposed by the Agent.
Section 12.03 Agent's Duties Limited; No Fiduciary Duty. The Lenders agree
that the Agent shall have no duties or responsibilities except those expressly
set forth in this Agreement and the other Loan Documents. The Lenders agree that
none of the Agent nor any of its respective officers, directors, employees or
agents shall be liable for any action taken or omitted by it as such hereunder
or in connection herewith, unless caused by its or their gross negligence or
willful misconduct. The Agent shall not have by reason of this Agreement a
fiduciary relationship to or in respect of any Lender, and nothing in this
Agreement, express or implied, is intended to or shall be so construed as to
impose upon the Agent any obligations in respect of this Agreement or the other
Loan Documents except as expressly set forth herein.
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Section 12.04 No Reliance on the Agent. (A) EACH LENDER REPRESENTS AND
WARRANTS TO THE AGENT AND THE OTHER LENDERS THAT INDEPENDENTLY AND WITHOUT
RELIANCE UPON THE AGENT, EACH LENDER, TO THE EXTENT IT DEEMS APPROPRIATE, HAS
MADE AND SHALL CONTINUE TO MAKE (I) ITS OWN INDEPENDENT INVESTIGATION OF THE
FINANCIAL CONDITION AND AFFAIRS OF THE BORROWER, THE GUARANTORS AND ANY
SUBSIDIARY IN CONNECTION WITH THE TAKING OR NOT TAKING OF ANY ACTION IN
CONNECTION HEREWITH, AND (II) ITS OWN APPRAISAL OF THE CREDITWORTHINESS OF THE
BORROWER, THE GUARANTORS AND ANY SUBSIDIARY, AND, EACH LENDER FURTHER AGREES
THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE AGENT SHALL HAVE NO
DUTY OR RESPONSIBILITY, EITHER INITIALLY OR ON A CONTINUING BASIS, TO PROVIDE
ANY LENDER WITH ANY CREDIT OR OTHER INFORMATION WITH RESPECT THERETO, WHETHER
COMING INTO ITS POSSESSION BEFORE THE MAKING OF THE LOANS OR AT ANY TIME OR
TIMES THEREAFTER. AS LONG AS ANY OF THE LOANS ARE OUTSTANDING AND/OR ANY AMOUNT
IS AVAILABLE TO BE REQUESTED OR BORROWED HEREUNDER, OR THIS AGREEMENT AND THE
LOAN DOCUMENTS HAVE NOT BEEN CANCELLED AND TERMINATED, EACH LENDER SHALL
CONTINUE TO MAKE ITS OWN INDEPENDENT EVALUATION OF THE FINANCIAL CONDITION AND
AFFAIRS OF THE BORROWER, THE GUARANTORS AND THE SUBSIDIARIES.
(b) The Agent shall not be responsible to any Lender for any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith or for
the execution, effectiveness, genuineness, validity, enforceability,
collectability, priority or sufficiency of this Agreement, the Revolving Credit
Notes, the Swing Line Note, the Foreign Currency Notes, the Guaranties, the
Negative Pledge, the other Loan Documents, or any other documents contemplated
hereby or thereby, or the financial condition of the Borrower, the Guarantors
and any Subsidiary, or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of this
Agreement, the Revolving Credit Notes, the Foreign Currency Notes, the Swing
Line Note, the Guaranties, the other Loan Documents or the other documents
contemplated hereby or thereby, or the financial condition of the Borrower, the
Guarantors and any Subsidiary, or the existence or possible existence of any
Default Condition or Event of Default.
Section 12.05 Certain Rights of Agent. The Lenders agree that if the Agent
shall request instructions from the Majority Lenders (or all of the Lenders
where unanimity is expressly required under the terms of this Agreement) with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Agent shall be entitled to refrain from such act or
taking such act, unless and until the Agent shall have received instructions
from the Majority Lenders (or all of the Lenders where unanimity is expressly
required under the terms of this Agreement); and the Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the Agent
as a result of the Agent acting or refraining from acting hereunder in
accordance with the instructions of the Majority Lenders (or, with regard to
acts for which the consent of all of the Lenders is expressly required under the
terms of this Agreement, in accordance with the instructions of all of the
Lenders).
Section 12.06 Reliance by Agent. The Lenders agree that the Agent shall be
entitled to rely,
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and shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, telex, teletype or telecopier message,
cablegram, radiogram, order or other documentary, teletransmission or telephone
message reasonably believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person. The Lenders agree that the Agent may
consult with legal counsel (including counsel for any Lender), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the advice of such counsel, accountants or experts.
Section 12.07 Indemnification of Agent. To the extent the Agent is not
reimbursed and indemnified by the Borrower, each Lender will reimburse and
indemnify the Agent, ratably according to their respective Pro Rata Share, for,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including fees of
experts, consultants and counsel and disbursements) or disbursements of any kind
or nature whatsoever that may be imposed on, incurred by or asserted against the
Agent in performing its duties hereunder, in any way relating to or arising out
of this Agreement or the other Loan Documents; provided that no Lender shall be
liable to the Agent for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or willful misconduct. The
obligations and indemnifications arising under this Section 12.07 shall survive
termination of this Agreement, repayment of the Loans and indebtedness arising
in connection with the Letters of Credit and expiration of the Letters of
Credit.
Section 12.08 The Agent in its Individual Capacity. With respect to its
obligation to lend under this Agreement, the Loan made by it and the Revolving
Credit Note issued to it, the Agent shall have the same rights and powers
hereunder as any other Lender or holder of a Revolving Credit Note and may
exercise the same as though it were not performing the duties of Agent specified
herein; and the terms "Lenders," "Majority Lenders," "holders of Revolving
Credit Notes," "holders of Foreign Currency Notes," or any similar terms shall,
unless the context clearly otherwise indicates, include the Agent in its
individual capacity. The Agent also may exercise the rights and remedies of the
Swing Line Lender. The Agent and its Affiliates may accept deposits from, lend
money to, and generally engage in any kind of banking, trust, financial advisory
or other business with the Borrower or any Subsidiary of the Borrower as if it
were not performing the duties specified herein as Agent, and may accept fees
and other consideration from the Borrower for services in connection with this
Agreement and otherwise without having to account for the same to the Lenders.
Section 12.09 Holders of Notes. The Agent and the Borrower may deem and
treat the payee of any Revolving Credit Notes and any Foreign Currency Notes as
the owner thereof for all purposes hereof unless and until a written notice of
the assignment or transfer thereof shall have been filed with the Agent and the
Borrower. Any request, authority or consent of any Person who, at the time of
making such request or giving such authority or consent, is the holder of any
Revolving Credit Note shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Revolving Credit Note.
Section 12.10 Successor Agent. (a) The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower and may be removed
at any time with cause by the Majority Lenders; provided, however, the Agent may
not resign or be removed until (i) a successor Agent has been appointed and
shall have accepted such appointment, (ii) the successor Agent has assumed all
responsibility for issuance of the Letters of Credit and the successor Agent has
assumed in the place
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and stead of the Agent all existing liability under outstanding Letters of
Credit, and (iii) the successor Agent has assumed in the place and stead of the
Agent all liability and responsibility of the Swing Line Lender, including the
purchase by the successor Agent from the Agent of the Swing Line Lender's
position in the Swing Line Note. The transactions described in the immediately
preceding sentence shall be accomplished pursuant to written agreements
reasonably satisfactory to the Agent and the successor Agent. Upon any such
resignation or removal, the Majority Lenders shall have the right to appoint a
successor Agent with the consent of Borrower, which shall not be unreasonably
withheld. If no successor Agent shall have been so appointed by the Majority
Lenders, and shall have accepted such appointment, within thirty (30) days after
the retiring Agent's giving of notice of resignation or the Majority Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent (with the consent of Borrower, which will not
be unreasonably withheld), which shall be a bank that maintains an office in the
United States, or a commercial bank organized under the laws of the United
States of America or any State thereof, or any Affiliate of such bank, having a
combined capital and surplus of at least $100,000,000.
(b) Upon the acceptance of any appointment as the Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article XII shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was an Agent under this
Agreement.
Section 12.11 Notice of Default or Event of Default. In the event that the
Agent or any Lender shall acquire actual knowledge, or shall have been notified,
of any Default Condition or Event of Default (other than through a notice by one
party hereto to all other parties), the Agent or such Lender shall promptly
notify the Agent, and the Agent shall take such action and assert such rights
under this Agreement as the Majority Lenders shall request in writing, and the
Agent shall not be subject to any liability by reason of its acting pursuant to
any such request. If, following notification by Agent to Lenders, the Majority
Lenders (or all of the Lenders if required hereunder) shall fail to request the
Agent to take action or to assert rights under this Agreement in respect of any
Default Condition or Event of Default within five (5) Business Days after their
receipt of the notice of any Default Condition or Event of Default from the
Agent or any Lender, or shall request inconsistent action with respect to such
Default Condition or Event of Default, the Agent may, but shall not be required
to, take such action and assert such rights (other than rights under Article
VIII hereof) as it deems in its discretion to be advisable for the protection of
the Lenders.
Section 12.12 Benefit of Agreement.
(a) Any Lender may make, carry or transfer Loans at, to or for the account
of, any of its branch offices or the office of an Affiliate of such Lender,
provided that no such action shall increase the cost of the Loans to the
Borrower.
(b) Each Lender may assign a pro rata portion of its interests, rights and
obligations under this Agreement, including all or a portion of any of its
Revolving Credit Loan Commitment (including without limitation its commitment to
participate in Letters of Credit) and its Foreign Currency Commitment, to any
Eligible Assignee; provided, however, that (i) the amount of the Revolving
Credit Loan Commitment of the assigning Lender subject to each assignment
(determined as of the date the assignment and acceptance with respect to such
assignment is delivered to the Agent) shall not
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be less than an amount equal to $10,000,000 or greater integral multiples
thereof; (ii) the assignment of the Revolving Credit Loan Commitment shall also
assign Lender's same pro rata interest in the Foreign Currency Commitment; and
(iii) the parties to each such assignment shall execute and deliver to the Agent
and the Borrower an Assignment and Acceptance, together with a Revolving Credit
Note(s) and a Foreign Currency Note(s), subject to such assignment and, unless
such assignment is to an Affiliate of such Lender, a processing and recordation
fee payable to Agent of $3,000. Borrower shall not be responsible for such
processing and recordation fee or any costs or expenses incurred by any Lender
or the Agent in connection with such assignment. From and after the effective
date specified in each Assignment and Acceptance, which effective date shall be
at least five (5) Business Days after the execution thereof, the assignee
thereunder shall be a party hereto and to the extent of the interest assigned by
such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement. Notwithstanding the foregoing, the assigning Lender must
retain after the consummation of such Assignment and Acceptance, a minimum
aggregate amount of Revolving Credit Loan Commitment of $10,000,000; provided,
however, no such minimum amount shall be required with respect to any such
assignment made at any time there exists an Event of Default hereunder, and no
such minimum amount shall be required in the case of an assignment by an
assigning Lender to an affiliate bank of such assigning Lender (provided that
such affiliate bank is a United States national bank or a state banking
institution of any state in the United States). Within five (5) Business Days
after receipt of the notice and the Assignment and Acceptance, Borrower, at
their own expense, shall execute and deliver to the Agent, in exchange for the
surrendered Revolving Credit Note(s) and Foreign Currency Note(s), new Revolving
Credit Note(s) and Foreign Currency Note(s) to the order of the Eligible
Assignee in a principal amount equal to the applicable Revolving Credit Loan
Commitment and Foreign Currency Commitment assumed by it pursuant to such
Assignment and Acceptance, as well as a new Revolving Credit Note(s) (or Foreign
Currency Note(s) to the assigning Lender in the amount of its retained Revolving
Credit Loan Commitment and Foreign Currency Commitment. Such new Revolving
Credit Note(s) and Foreign Currency Note(s) to the Eligible Assignee and to the
assigning Lender shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Revolving Credit Note(s) and
Foreign Currency Note(s), shall be dated the date of the surrendered Revolving
Credit Note(s) and Foreign Currency Note(s) that they replace, and shall
otherwise be in substantially the form attached hereto as respective Exhibits A
and B, as applicable.
(c) No assignment of all or any portion of this Agreement by any Lender
shall be permitted without compliance with the provisions of Section 12.12(b)
hereof, or if such assignment would violate any applicable securities law. In
connection with its execution and delivery hereof each Lender represents that it
is acquiring its interest herein for its own account for investment purposes and
not with a view to further distribution thereof, and shall require any proposed
assignee to furnish similar representations to the Agent and the Borrower.
(d) Each Lender may, without the consent of Borrower or the Agent but
subject to the provisions of Section 2.07, sell participations in its respective
Revolving Credit Loan Commitment (including the Letter of Credit) and Foreign
Currency Commitment to such Lender's Affiliate(s), but sales of participations
to Persons other than such Lender's Affiliates shall be made only with the prior
written consent of the Borrower (which consent shall not be unreasonably
withheld or delayed) and in all events subject to said Section. Provided,
however, that (i) no Lender may sell a participation in its aggregate Revolving
Credit Loan Commitment (including the Letter of Credit) and Foreign Currency
Commitment (after giving effect to any permitted assignment hereof) unless it
retains an aggregate
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exposure of at least fifty percent (50%) of such commitments (except that no
such limitation shall be applicable to any such participation sold at any time
there exists an Event of Default hereunder), (ii) such Lender's obligations
under this Agreement shall remain unchanged, (iii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, and (iv) Borrower and the Agent and other Lenders shall continue to
deal solely and directly with each Lender in connection with such Lender's
rights and obligations as provided in this Agreement and the other Loan
Documents. Each Lender shall promptly notify in writing the Agent of any sale of
a participation hereunder.
(e) Any Lender or participant may, in connection with the assignment or
participation or proposed assignment or participation, pursuant to this Section
12.12, disclose to the assignee or participant or proposed assignee or
participant any information relating to Borrower or any Subsidiary, furnished to
such Lender by or on behalf of Borrower. With respect to any disclosure of
confidential, non-public, proprietary information, such proposed assignee or
participant shall agree to use the information only for the purpose of making
any necessary credit judgments with respect to this credit facility and not to
use the information in any manner prohibited by any law, including without
limitation, the securities laws of the United States. The proposed participant
or assignee shall agree in writing not to disclose any of such information
except (i) to directors, employees, auditors or counsel to whom it is necessary
to show such information, each of whom shall be informed of the confidential
nature of the information and agree to maintain the confidentiality thereof as
described herein, (ii) in any statement or testimony pursuant to a subpoena or
order by any court, governmental body or other agency asserting jurisdiction
over such entity, or as otherwise required by law (provided prior notice is
given to Borrower and the Agent unless otherwise prohibited by the subpoena,
order or law), and (iii) upon the request or demand of any regulatory agency or
authority with proper jurisdiction. The proposed participant or assignee, and
such representatives, shall further agree to return to Borrower all documents or
other written material and copies thereof received from any Lender, the Agent or
Borrower relating to such confidential information.
(f) Any Lender may at any time assign all or any portion of its rights in
this Agreement, the Revolving Credit Notes, the Foreign Currency Notes and other
instruments described herein issued to it to a Federal Reserve Bank; provided
that no such assignment shall release the assigning Lender from any of its
obligations hereunder.
Section 12.13 Removal of Lender. In the event that any Lender (the
"Specified Lender") (a) fails to perform its obligation to fund any portion of
the Loan when required to do so by the terms
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of this Agreement or excused only by Section 2.17, (b) demands payment in
respect of increased costs pursuant to Section 2.18 in an amount the Borrower
reasonably deems materially in excess of the amounts in respect thereof demanded
by the other Lenders, or (c) refuses to consent to a proposed amendment,
modification, consent or other action requiring unanimity among the Lenders
under the terms of this Agreement, as to which the Majority Lenders have given
such consent, then, so long as no Event of Default or Default Condition exists,
the Borrower shall have the right to seek a replacement Lender which is
reasonably satisfactory to the Agent (a "Replacement Lender"). The Replacement
Lender shall purchase the interest of the Specified Lender in the Loan and shall
assume the obligations of the Specified Lender hereunder upon execution by the
Replacement Lender of an Assignment and Acceptance and the tender by it to the
Specified Lender of a purchase price agreed by it and the Specified Lender (or,
if they are unable to agree, a purchase price equal to the amount of the
Specified Lender's Pro Rata Share of the Loan and all other amounts then owed by
the Borrower to the Specified Lender). Upon consummation of such assignment, the
Replacement Lender shall become a party to this Agreement as a signatory hereto
and shall have all of the rights and obligations of the Specified Lender under
this Agreement and under the other Loan Documents, and no further consent or
action by any party shall be required. Upon the consummation of such assignment,
the Borrower, the Agent and the Specified Lender shall make appropriate
arrangements so that a new Revolving Credit Note is issued to the Replacement
Lender. The Borrower and the Guarantors shall sign such documents and take such
other actions reasonably requested by the Replacement Lender or the Agent to
enable the Replacement Lender to share in the rights created by this Agreement
and the other Loan Documents. Until the consummation of an assignment in
accordance with the foregoing provisions of this Section 12.13, the Company
shall continue to pay to or for the benefit of the Specified Lender all amounts
which it is required to pay pursuant to this Agreement and the other Loan
Documents, as they become due and payable.
Article XIII. Guarantors.
Section 13.01 Guarantors. The obligations of the Borrower under the Loan
Documents shall be guaranteed jointly and severally by each of the Guarantors
pursuant to the Guaranties.
ENTERED INTO the date first above written.
BORROWER:
SOFAMOR DANEK GROUP, INC.
By: /s/ J. Mark Merrill
------------------------------------
Title: Vice President and Treasurer
---------------------------------
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AGENT:
SUNTRUST BANK, NASHVILLE, N.A., Agent
By: /s/ Bryan W. Ford
-----------------------------------
Title: Vice President
-------------------------------
LENDERS:
SUNTRUST BANK, NASHVILLE, N.A.
By: /s/ Bryan W. Ford
------------------------------------
Title: Vice President
-------------------------------
Address: P.O. Box 305110
201 Fourth Avenue North
Nashville, Tennessee 37219
Pro Rata Share: 100%
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EXHIBIT A
Form of Revolving Credit Note
REVOLVING CREDIT NOTE
Nashville, Tennessee $80,000,000.00
July ____, 1997
FOR VALUE RECEIVED, SOFAMOR DANEK GROUP, INC., an Indiana corporation (the
"Borrower") promises and agrees to pay to the order of SUNTRUST BANK, NASHVILLE,
N.A. ("Lender") at the offices of SunTrust Bank, Nashville, N.A., as agent (the
"Agent"), in Nashville, Tennessee, or at such other place as may be designated
in writing by the holder, in lawful money of the United States of America, the
principal sum of Eighty Million and no/100 Dollars ($80,000,000.00), or so much
thereof as may be advanced from time to time by Lender, together with interest
on the principal balance outstanding from time to time hereon, from the date of
each Advance through the Maturity Date. Interest for each year shall be computed
in accordance with the Credit Agreement (as defined below).
This Note is issued pursuant to, and is one of the Revolving Credit Notes
referred to in, that certain Credit Agreement of even date herewith among
Borrower, the Agent, the Lender, and the other lenders from time to time parties
thereto (such credit agreement, as it may be amended, modified, extended and/or
renewed from time to time, including without limitation all restatements
thereof, replacements therefor and changes in form thereto, being collectively
referred to herein as the "Credit Agreement"). Any term not otherwise defined in
this Note shall have the same meaning as in the Credit Agreement. Reference is
made to the Credit Agreement, which, among other things, provides for the
acceleration of the maturity hereof upon the occurrence of certain events in
certain circumstances and upon certain terms and conditions.
Interest shall accrue on all amounts outstanding under this Note at the
Applicable Rate(s) elected by Borrower in accordance with the Credit Agreement.
Borrower promises to pay interest on the outstanding principal amount of each
Advance hereunder, at such interest rates, payable at such times, and computed
in such manner, as in accordance with the terms of the Credit Agreement and the
terms hereof.
As long as no Default Condition or Event of Default has occurred, Borrower
may borrow, repay, reborrow and repay hereunder until the Maturity Date;
provided, however, that at no time shall the principal amount outstanding
hereunder exceed the applicable Maximum Total Amount under the Credit Agreement.
If any such excess occurs, Borrower shall immediately pay to Agent for the
benefit of the Lender or the Lenders, as the case may be, all principal
outstanding hereunder in excess of the applicable Maximum Total Amount plus all
accrued interest, fees and charges as required by the Credit Agreement.
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The terms and conditions of any prepayment of this Note shall be governed
by the Credit Agreement.
The terms and conditions in connection with requesting an Advance by
Borrower and for making any Advances by Lender hereunder shall be governed by
the applicable provisions of the Credit Agreement.
This Note shall be repaid as follows:
(a) From the date hereof through the Maturity Date, Borrower shall pay
to Lender accrued interest under this Note, as follows:
(i) interest on all Advances bearing interest at the Base Rate
Option, shall be paid in arrears by Borrower to Lender on the first
Business Day of each calendar month;
(ii) interest on all Advances bearing interest at the LIBOR
Option with a one-month Interest Period shall be paid at the end of
the applicable Interest Period;
(iii) interest on all Advances bearing interest at the LIBOR
Option with a two-month Interest Period shall be paid by Borrower to
Lender at the end of the applicable Interest Period;
(iv) interest on all Advances bearing interest at the LIBOR
Option with a three-month Interest Period shall be paid by Borrower to
Lender at the end of the applicable Interest Period; and
(v) interest on all Advances bearing interest at the LIBOR Option
with a six-month Interest Period shall be paid by Borrower to Lender
ninety (90) days after such Advance and at the end of the applicable
Interest Period.
(b) This Note shall mature on July ___, 2000 (the "Maturity Date"), at
which time all outstanding principal, accrued interest, and all unpaid fees
or charges hereunder (if any) will be immediately due and payable.
(c) Any other fees or other charges due under the Credit Agreement
shall be payable as set forth therein, and if no payment date is specified
in the Credit Agreement, such fees and/or charges shall be payable on
demand.
Notwithstanding any provision to the contrary, it is the intent of Lender,
Borrower and all parties liable on this Note, that neither Lender nor any
subsequent holder shall be entitled to receive, collect, reserve or apply, as
interest, any amount in excess of the maximum lawful rate of interest permitted
to be charged by applicable law or regulations, as amended or enacted from time
to time. In the event the Note calls for an interest payment that exceeds the
maximum lawful rate of interest then applicable, such interest shall not be
received, collected, charged or reserved until such time as that
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interest, together with all other interest then payable, falls within the then
applicable maximum lawful rate of interest. In the event Lender, or any
subsequent holder, receives any such interest in excess of the then maximum
lawful rate of interest, such amount which would be excessive interest shall be
deemed a partial prepayment of principal and treated hereunder as such, or, if
the principal indebtedness evidenced hereby is paid in full, any remaining
excess funds shall immediately be paid to Borrower. In determining whether or
not the interest paid or payable, under any specific contingency, exceeds the
maximum lawful rate of interest, Borrower and Lender shall, to the maximum
extent permitted under applicable law, (a) exclude voluntary prepayments and the
effects thereof, and (b) amortize, prorate, allocate and spread, in equal parts,
the total amount of interest throughout the entire term of the indebtedness;
provided that if the indebtedness is paid in full prior to the end of the full
contemplated term hereof, and if the interest received for the actual period of
existence hereof exceeds the maximum lawful rate of interest, the holder of the
Note shall refund to Borrower the amount of such excess or credit the amount of
such excess against the principal portion of the indebtedness as of the date it
was received, and, in such event, Lender shall not be subject to any penalties
provided by any laws for contracting for, charging, reserving, collecting or
receiving interest in excess of the maximum lawful rate of interest.
In the event that there occurs any Event of Default under the Credit
Agreement (any such event constituting an Event of Default under this Note),
then, in such event, at the option of the Majority Lenders or automatically in
the case of Events of Default under Sections 8.01(e) and 8.01(f) of the Credit
Agreement, as evidenced by notice from the Agent, the entire indebtedness hereby
evidenced shall become due, payable and collectible then or thereafter, without
further notice, as the holder may elect regardless of the date of maturity. The
Majority Lenders, evidenced by notice from the Agent, may waive any Event of
Default before or after the same has been declared and restore this Note to full
force and effect without impairing any rights hereunder, such right of waiver
being a continuing one.
Following the occurrence of an Event of Default, principal and unpaid
interest bear interest at the Default Rate, until paid. The undersigned will pay
all costs and expenses in connection with the collection, enforcement,
protection and/or litigation with regard to this Note and/or any of Lender's
rights hereunder, including without limitation reasonable attorneys' fees.
The makers, endorsers, guarantors and all parties to this Note and all who
may become liable for same, jointly and severally waive presentment for payment,
protest, notice of protest, notice of nonpayment of this Note, demand and all
legal diligence in enforcing collection, and hereby expressly agree that the
lawful owner or holder of this Note may defer or postpone collection of the
whole or any part thereof, either principal and/or interest, or may extend or
renew the whole or any part thereof, either principal and/or interest, or may
accept additional collateral or security for the payment of this Note, or may
release the whole or any part of any collateral security and/or liens given to
secure the payment of this Note, or may release from liability on account of
this Note any one or more of the makers, endorsers, guarantors and/or other
parties thereto, all without notice to them or any of them; and such deferment,
postponement, renewal, extension, acceptance of additional collateral or
security and/or release shall not in any way affect or change the obligation of
any such maker, endorser, guarantor or other party to this Note, or of any who
may become liable for the payment thereof.
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This Note has been executed and delivered in, and shall be governed by and
construed according to the laws of the State of Tennessee except to the extent
pre-empted by applicable laws of the United States of America.
IN WITNESS WHEREOF, the undersigned, a duly authorized officer of Borrower,
has executed this Revolving Credit Note as of the day and date first set forth
above.
SOFAMOR DANEK GROUP, INC.
By:
------------------------------------
Title:
---------------------------------
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EXHIBIT B
Form of Foreign Currency Note
FOREIGN CURRENCY NOTE
Nashville, Tennessee $15,000,000.00
July ____, 1997
FOR VALUE RECEIVED, SOFAMOR DANEK GROUP, INC., an Indiana corporation (the
"Borrower") promises and agrees to pay to the order of SUNTRUST BANK, NASHVILLE,
N.A. ("Lender") at the offices of SunTrust Bank, Nashville, N.A., as agent (the
"Agent"), in Nashville, Tennessee, or at such other place as may be designated
in writing by the holder, in Foreign Currencies, the U.S. Dollar Equivalent
equal to the principal sum of Fifteen Million and no/100 Dollars
($15,000,000.00), or so much thereof as may be advanced from time to time by
Lender, together with interest at the Foreign Currency Rate on the principal
balance outstanding from time to time hereon, from the date of each Advance
through the Maturity Date. Interest for each year shall be computed based upon a
360-day year for the actual number of days elapsed.
This Note is issued pursuant to, and is one of the Foreign Currency Notes
referred to in, that certain Credit Agreement of even date herewith among
Borrower, the Agent, the Lender, and the other lenders from time to time parties
thereto (such credit agreement, as it may be amended, modified, extended and/or
renewed from time to time, including without limitation all restatements
thereof, replacements therefor and changes in form thereto, being collectively
referred to herein as the "Credit Agreement"). Any term not otherwise defined in
this Note shall have the same meaning as in the Credit Agreement. Reference is
made to the Credit Agreement, which, among other things, provides for the
acceleration of the maturity hereof upon the occurrence of certain events in
certain circumstances and upon certain terms and conditions.
Interest shall accrue on all amounts outstanding under this Note at the
applicable Foreign Currency Rates of interest elected by Borrower in accordance
with the Credit Agreement. Borrower promises to pay interest on the outstanding
principal amount of each Advance hereunder, at such interest rates, payable at
such times, and computed in such manner, as in accordance with the terms of the
Credit Agreement and the terms hereof.
As long as no Default Condition or Event of Default has occurred, Borrower
may borrow, repay, reborrow and repay hereunder until the Maturity Date;
provided, however, that at no time shall the U.S. Dollar Equivalent outstanding
hereunder exceed the Maximum Total Amount. If any such excess occurs, Borrower
shall immediately pay to Agent for the benefit of the Lender or the Lenders, as
the case may be, all principal outstanding hereunder in excess of the applicable
Maximum Total Amount, plus all accrued interest, fees and charges as required by
the Credit Agreement.
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The terms and conditions of any prepayment of this Note shall be governed
by the Credit Agreement.
The terms and conditions in connection with requesting an Advance by
Borrower and for making any Advances by Lender hereunder shall be governed by
the applicable provisions of the Credit Agreement.
From the date hereof through the Maturity Date, Borrower shall pay to
Lender accrued interest under this Note at the end of each applicable Interest
Period. Any other fees or charges due under the Credit Agreement shall be
payable as set forth therein, and if no payment date is specified in the Credit
Agreement, such fees and/or charges shall be payable on demand.
This Note shall mature on July ___, 2000 (the "Maturity Date"), at which
time all outstanding principal, accrued interest, and all unpaid fees or charges
hereunder (if any) will be immediately due and payable.
Notwithstanding any provision to the contrary, it is the intent of Lender,
Borrower and all parties liable on this Note, that neither Lender nor any
subsequent holder shall be entitled to receive, collect, reserve or apply, as
interest, any amount in excess of the maximum lawful rate of interest permitted
to be charged by applicable law or regulations, as amended or enacted from time
to time. In the event the Note calls for an interest payment that exceeds the
maximum lawful rate of interest then applicable, such interest shall not be
received, collected, charged or reserved until such time as that interest,
together with all other interest then payable, falls within the then applicable
maximum lawful rate of interest. In the event Lender, or any subsequent holder,
receives any such interest in excess of the then maximum lawful rate of
interest, such amount which would be excessive interest shall be deemed a
partial prepayment of principal and treated hereunder as such, or, if the
principal indebtedness evidenced hereby is paid in full, any remaining excess
funds shall immediately be paid to Borrower. In determining whether or not the
interest paid or payable, under any specific contingency, exceeds the maximum
lawful rate of interest, Borrower and Lender shall, to the maximum extent
permitted under applicable law, (a) exclude voluntary prepayments and the
effects thereof, and (b) amortize, prorate, allocate and spread, in equal parts,
the total amount of interest throughout the entire term of the indebtedness;
provided that if the indebtedness is paid in full prior to the end of the full
contemplated term hereof, and if the interest received for the actual period of
existence hereof exceeds the maximum lawful rate of interest, the holder of the
Note shall refund to Borrower the amount of such excess or credit the amount of
such excess against the principal portion of the indebtedness as of the date it
was received, and, in such event, Lender shall not be subject to any penalties
provided by any laws for contracting for, charging, reserving, collecting or
receiving interest in excess of the maximum lawful rate of interest.
In the event that there occurs any Event of Default under the Credit
Agreement (any such event constituting an Event of Default under this Note),
then, in such event, at the option of the Majority Lenders or automatically in
the case of Events of Default under Sections 8.01(e) and 8.01(f) of the Credit
Agreement, as evidenced by notice from the Agent, the entire indebtedness hereby
evidenced shall become due, payable and collectible then or thereafter, without
further notice, as the holder may elect regardless of the date of maturity. The
Majority Lenders, evidenced by notice from the Agent, may waive any Event of
Default before or after the same has been declared and restore this
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Note to full force and effect without impairing any rights hereunder, such right
of waiver being a continuing one.
Following the occurrence of an Event of Default, principal and unpaid
interest bear interest at the Default Rate, until paid. The undersigned will pay
all costs and expenses in connection with the collection, enforcement,
protection and/or litigation with regard to this Note and/or any of Lender's
rights hereunder, including without limitation reasonable attorneys' fees.
The makers, endorsers, guarantors and all parties to this Note and all who
may become liable for same, jointly and severally waive presentment for payment,
protest, notice of protest, notice of nonpayment of this Note, demand and all
legal diligence in enforcing collection, and hereby expressly agree that the
lawful owner or holder of this Note may defer or postpone collection of the
whole or any part thereof, either principal and/or interest, or may extend or
renew the whole or any part thereof, either principal and/or interest, or may
accept additional collateral or security for the payment of this Note, or may
release the whole or any part of any collateral security and/or liens given to
secure the payment of this Note, or may release from liability on account of
this Note any one or more of the makers, endorsers, guarantors and/or other
parties thereto, all without notice to them or any of them; and such deferment,
postponement, renewal, extension, acceptance of additional collateral or
security and/or release shall not in any way affect or change the obligation of
any such maker, endorser, guarantor or other party to this Note, or of any who
may become liable for the payment thereof.
This Note has been executed and delivered in, and shall be governed by and
construed according to the laws of the State of Tennessee except to the extent
pre-empted by applicable laws of the United States of America.
IN WITNESS WHEREOF, the undersigned, a duly authorized officer of Borrower,
has executed this Revolving Credit Note as of the day and date first set forth
above.
SOFAMOR DANEK GROUP, INC.
By:
----------------------------------
Title:
-------------------------------
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EXHIBIT C
Form of Swing Line Note
SWING LINE REVOLVING CREDIT NOTE
Nashville, Tennessee $5,000,000.00
July ____, 1997
For value received, the undersigned, SOFAMOR DANEK GROUP, INC., (the
"Borrower"), promises to pay on the Maturity Date to the order of SUNTRUST BANK,
NASHVILLE, N.A., a national banking association ("Swing Line Lender") at its
principal office in Nashville, Tennessee, or at such other place as Swing Line
Lender may designate in writing, the principal sum of up to Five Million Dollars
($5,000,000) in lawful money of the United States of America, or, if less, so
much thereof as may be from time to time advanced by Swing Line Lender to the
Borrower hereunder and remain outstanding, together with interest on the unpaid
principal balance outstanding from time to time hereon computed from the date of
each Advance until the Maturity Date (hereafter defined) at the Swing Line Rate.
Interest for each year shall be computed based upon a 360-day year of actual
days elapsed.
This Swing Line Note is issued pursuant to, and is the Swing Line Note
referred to in, that certain Credit Agreement of even date herewith by and
between Borrower, Swing Line Lender, the other lenders set forth on the
signature pages thereof and SunTrust Bank, Nashville, N.A., as Agent (as it may
be amended, restated and/or modified from time to time, the "Credit Agreement").
This Swing Line Note, and all Advances hereunder, and repayment hereof, are
subject to the terms and provisions of the Credit Agreement. Any term not
otherwise defined in this Swing Line Note shall have the same meaning as in the
Credit Agreement. Reference is made to the Credit Agreement, which, among other
things, provides for the acceleration hereof upon the occurrence of certain
events in certain circumstances and upon certain terms and conditions.
Subject to the terms, limitations, and conditions of this Swing Line Note
and the Credit Agreement, the Borrower shall be entitled to borrow, repay, and
reborrow hereunder. On any Business Day on or prior to the Maturity Date,
Borrower may request an Advance pursuant to this Swing Line Note by a
communication received by Swing Line Lender not later than 11:00 a.m. o'clock
(Nashville, Tennessee time).
The Borrower shall repay in full the principal amount of any Advance made
hereunder within thirty (30) days subsequent to the date of such Advance. In
addition to the principal payment required hereunder, commencing on August 1,
1997 and on the first Business Day of each consecutive month thereafter, the
Borrower shall pay to the Swing Line Lender an amount equal to all then accrued
interest. On July ____, 2000 (the "Maturity Date") the Borrower shall pay to
Swing Line Lender an amount equal to all outstanding principal, plus all accrued
interest.
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This Swing Line Note is a revolving credit note and it is contemplated that
by reason of payments hereon, there may be times when no indebtedness is owing
hereunder. Notwithstanding such occurrence, this Swing Line Note shall remain
valid and in full force and effect as to each Advance made hereunder. This Swing
Line Note shall be valid and enforceable as to the aggregate amount advanced at
any time hereunder, plus interest thereon, whether or not the full face amount
hereof is advanced.
All parties now or hereafter liable with respect to this Swing Line Note,
whether the Borrower or any Guarantor, endorser or any other person or entity,
hereby waive presentment for payment, demand, notice of non-payment or dishonor,
protest and notice of protest. No delay or omission on the part of Swing Line
Lender, or any holder hereof, in exercising its rights under this Swing Line
Note shall operate as a waiver of such rights or any other right of the Swing
Line Lender, or of any holder hereof of any such right or rights on any occasion
be deemed a bar to, or waiver of, the same right or rights on any future
occasion.
Swing Line Lender may, but shall not be required to, apply to the payment
of any Advance hereunder, on or after the maturity of such Advance, any funds or
credit held by Swing Line Lender on deposit for the account of Borrower or any
other party liable hereon.
Following the occurrence of any Event of Default under the Credit Agreement
(any such event being a default hereunder), then at the option of Swing Line
Lender or automatically in the case of Events of Default under Sections 8.01(e)
or 8.01(f) under the Credit Agreement, all unpaid amounts advanced hereunder and
interest thereon may be accelerated and become due in accordance with the Credit
Agreement regardless of the due date of any Advance made hereunder. Swing Line
Lender may waive any default before or after the same has been declared and
restore this Swing Line Note to full force and effect without impairing any of
Swing Line Lender's rights hereunder, such right of waiver being a continuing
one.
Borrower shall have no right to assign any rights or obligations under this
Swing Line Note without the written consent of Swing Line Lender.
Following the occurrence of an Event of Default, principal and unpaid
interest shall bear interest at the rate that is equal to the Default Rate,
until paid. The undersigned will pay all costs and expenses in connection with
the collection, enforcement, protection and/or litigation with regard to this
Swing Line Note and/or any of Swing Line Lender's rights hereunder, including
without limitation reasonable attorneys' fees.
The makers, endorsers, guarantors and all parties to this Swing Line Note
and all who may become liable for same, jointly and severally waive presentment
for payment, protest, notice of protest, notice of nonpayment of this Swing Line
Note, demand and all legal diligence in enforcing collection, and hereby
expressly agree that the lawful owner or holder of this Swing Line Note may
defer or postpone collection of the whole or any part thereof, either principal
and/or interest, or may extend or renew the whole or any part thereof, either
principal and/or interest, or may accept additional collateral or security for
the payment of this Swing Line Note, or may release the whole or any part of any
collateral security and/or liens given to secure the payment of this Swing Line
Note, or may release from liability on account of this Swing Line Note any one
or more of the makers,
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endorsers, guarantors and/or other parties thereto, all without notice to them
or any of them; and such deferment, postponement, renewal, extension, acceptance
of additional collateral or security and/or release shall not in any way affect
or change the obligation of any such maker, endorser, guarantor or other party
to this Swing Line Note, or of any who may become liable for the payment
thereof.
This Swing Line Note has been executed and delivered in, and shall be
governed by and construed according to the laws of the State of Tennessee except
to the extent pre-empted by applicable laws of the United States of America.
This Swing Line Note may not be changed or terminated without the prior
written approval of Swing Line Lender and Borrower. No waiver of any term or
provision hereof shall be valid unless in writing signed by the holder.
IN WITNESS WHEREOF, the undersigned, being a duly authorized officer of the
Borrower, has executed this Swing Line Note as of the day and date first set
forth above.
SOFAMOR DANEK GROUP, INC.
By:
----------------------------------
Title:
-------------------------------
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EXHIBIT D
Form of Application and Agreement
for Issuance of a Letter of Credit
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EXHIBIT E
Forms of Borrowing Request
EXHIBIT E TO CREDIT AGREEMENT
REVOLVING CREDIT, FOREIGN CURRENCY OR SWING LINE
LOAN BORROWING REQUEST
VIA FAX ( )
ATTN:
SunTrust Bank, Nashville, N.A.
201 Fourth Avenue North
P.O. Box 305110
Nashville, Tennessee 37230-5110
Date: ______________, ____
Re: Credit Agreement dated July __, 1997 by and among SOFAMOR DANEK GROUP,
INC. (the "Borrower"), the lenders listed therein and SunTrust Bank,
Nashville, N.A., as agent (as may be amended from time to time, the
"Credit Agreement")
This Borrowing Request is made by the Borrower pursuant to Section 2.05 of
the Credit Agreement. Capitalized terms not otherwise defined in this Borrowing
Request have the same meaning as in the Credit Agreement. The individual signing
this request certifies that (i) he or she is an individual authorized by the
Borrower to submit Borrowing Requests to the Agent pursuant to the Credit
Agreement, (ii) the undersigned hereby irrevocably gives notice of and requests,
pursuant to Section 2.05 of the Credit Agreement, a borrowing under the
Revolving Credit Loan facility, the Foreign Currency Loan facility and/or the
Swing Line Loan facility described in the Credit Agreement (the "Proposed
Borrowing"), and (iii) the amount of the Proposed Borrowing is available to the
Borrower pursuant to the Credit Agreement. The information below is true and
correct as of the date of this Borrowing Request:
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<PAGE> 73
<TABLE>
<CAPTION>
====================================================================================================
REVOLVING FOREIGN CURRENCY SWING LINE
CREDIT FACILITY FACILITY FACILITY
<S> <C> <C> <C>
AMOUNT OF PROPOSED
ADVANCE
- ----------------------------------------------------------------------------------------------------
DATE OF ADVANCE
- ----------------------------------------------------------------------------------------------------
APPLICABLE RATE
- ----------------------------------------------------------------------------------------------------
FOR LIBOR
OPTION/INTEREST PERIOD
- ----------------------------------------------------------------------------------------------------
TYPE OF CURRENCY
====================================================================================================
</TABLE>
EXISTING REVOLVING CREDIT LOAN TO BE CONTINUED/CONVERTED
Amount
1. REVOLVING CREDIT LOAN - EXPIRING
--------- ---------
2. DATE OF CONTINUED/CONVERTED REVOLVING CREDIT BORROWING:
------------------
3. DESIGNATION OF INTEREST OPTION FOR CONTINUED/CONVERTED
BORROWING:
Base Rate Loan - $____________
LIBOR Loan - $____________
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4. (a) INTEREST PERIOD for LIBOR OPTION CONTINUED/CONVERTED BORROWING:
________________________
V. EXISTING FOREIGN CURRENCY TO BE CONTINUED/CONVERTED
1. FOREIGN CURRENCY LOAN EXPIRING ____________
2. DATE OF CONTINUED
FOREIGN CURRENCY BORROWING ______________
3. AMOUNT OF FOREIGN CURRENCY BORROWING
CONTINUED ____________________
VI. ALL ADVANCES
Borrowing Requests using the LIBOR Option and at the Foreign Currency
Rate must be given three (3) Business Days (and in the case of a Foreign
Currency Loan, three (3) Foreign Currency Days) prior to the proposed Borrowing.
All Borrowing Requests received after 11:00 A.M. shall be deemed received on the
next Business Day. Borrowing Requests must be given prior to 11:00 a.m. (local
time for Agent) on the day of the Proposed Borrowing for Base Rate Loans and
Swing Line Loans.
(a) DEPOSIT PROCEEDS OF BORROWING INTO THE FUNDING ACCOUNT
MAINTAINED WITH AGENT:_______________
(CHECK BLANK)
OR
(b) WIRE TRANSFER PROCEEDS OF BORROWING ACCORDING TO THE FOLLOWING
INSTRUCTIONS:
ABA No.__________________________________________________
Account No.______________________________________________
Name of Bank:____________________________________________
Customer Reference:______________________________________
Other Information:_______________________________________
_________________________________________________________
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In connection with the Proposed Borrowing the undersigned represents on the
date hereof and on the date of the Proposed Borrowing (a) it has not obtained
knowledge that there exists any Event of Default or Default Condition and (b)
all representations and warranties by the Borrower contained in the Credit
Agreement are true and correct in accordance with Section 2.05(f) of the Credit
Agreement.
Very truly yours,
SOFAMOR DANEK GROUP, INC.
By:________________________________
Title:_____________________________
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EXHIBIT F
Form of Guaranty
GUARANTY
THIS GUARANTY ("Guaranty") is executed this ______ day of July, 1997 by
_________________________, a [corporation] ("Guarantor"), in favor of SUNTRUST
BANK, NASHVILLE, N.A., as Agent for the Lenders defined below (the "Agent").
A. To induce Lender to extend credit to SOFAMOR DANEK GROUP, INC.
("Borrower") under that certain Credit Agreement executed by and among the
Agent, the Borrower and the Lenders listed or referred to therein (the
"Lenders") dated July ___, 1997 (as such credit agreement may be amended or
restated from time to time, the "Credit Agreement") and certain instruments,
agreements and documents executed or delivered in connection therewith (as
defined in the Credit Agreement, the "Loan Documents"), the Agent previously
required that Guarantor unconditionally guarantee the obligations of Borrower
under the Credit Agreement and the Loan Documents.
NOW, THEREFORE, for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Guarantor hereby agrees as follows:
SECTION 1. DEFINED TERMS. Terms not defined in this Guaranty shall have the
meanings ascribed to such terms in the Credit Agreement.
SECTION 2. INDEBTEDNESS DEFINED. The term "Indebtedness," as used herein,
shall mean any and all indebtedness, obligations and amounts of any kind and
character whatsoever owed by Borrower to Agent and/or Lenders at any time and
from time to time, whether now existing or later arising, including without
limitation all obligations and indebtedness evidenced by the Revolving Credit
Notes, the Foreign Currency Notes, any Letters of Credit and the Swing Line Note
executed by Borrower (or issued on behalf of Borrower with respect to Letters of
Credit) to Lenders pursuant to the Credit Agreement, together with any and all
extensions, renewals, amendments, modifications, restatements, replacements and
substitutions therefor (collectively, the "Notes"), the Credit Agreement and/or
the other Loan Documents, and any fees, expenses, and/or costs (including
without limitation attorneys' fees) incurred by Agent or Lenders in collecting
any of such indebtedness, whether from Borrower, Guarantor, or from any other
guarantor or other person or entity at any time liable for any of the
Indebtedness (an "Obligor") or any of the properties, rights or assets (if any)
securing the Indebtedness at any time, whether owned by Borrower, Guarantor, any
Obligor or any other person or entity (the "Collateral"), or in protecting any
of Agent's or Lenders' rights with respect to such indebtedness, Borrower,
Guarantor, any Obligor or any Collateral.
SECTION 3. GUARANTY OF PAYMENT. Guarantor hereby unconditionally and
irrevocably
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guarantees the timely payment and performance of the Indebtedness as and when
due. This Guaranty shall remain in full force and effect until full and final
payment, discharge and termination of the Indebtedness.
SECTION 4. GUARANTY UNCONDITIONAL. Guarantor's guaranty of the Indebtedness
is continuing, absolute and unconditional. Without limiting the foregoing, the
validity of this Guaranty and Guarantor's obligations hereunder shall not be
impaired by any event, including without limitation any of the following,
whether or not Guarantor has any notice thereof: (a) the invalidity or
unenforceability of any agreement or instrument evidencing or relating to the
Indebtedness; (b) any present or future law, order or regulation of any
governmental authority purporting to reduce or affect the Indebtedness or any
person or entity liable for the Indebtedness or any Collateral; (c) any claim of
immunity, defense, set-off or counterclaim (other than full and final payment of
the Indebtedness) on behalf of any person or entity; (d) any change in the time,
place or manner of payment or performance, or any release, waiver, compromise,
settlement, increase, decrease, extension, renewal, acceleration, impairment or
termination (voluntary or otherwise) with respect to any or all of the
Indebtedness; (e) any release, addition, exchange, waiver, indulgence,
compromise, or settlement with respect to the Borrower, any Obligor or any
Collateral, or any failure to take, perfect or protect any lien or interest
intended as Collateral; (f) any modification, amendment, restatement or
replacement (in whole or in part) of any agreements or instruments evidencing,
comprising, securing, guarantying or otherwise relating to, executed or
delivered in connection with the Indebtedness; (g) any failure by Agent or the
Lenders to exercise diligence in the collection of the Indebtedness or any
action, omission or delay on the part of the Agent or the Lender or any other
person or entity to assert or enforce any claim, demand, right, power or remedy
referred to, conferred in or arising under this Guaranty or any of the other
agreements evidencing or relating to the Indebtedness; (h) the failure of any
other person or entity to guarantee or grant a lien or security interest as
collateral for any or all of the Indebtedness; (i) the voluntary or involuntary
liquidation, sale, cessation of business, marshalling of assets, receivership,
or financial decline of Borrower, or any insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization or other similar proceedings affecting
the Borrower or its assets; (j) the merger, consolidation or dissolution of
Borrower or a change in Borrower's form, business, operations or management;
and/or (k) the absence of any notice to Guarantor of any default or breach under
this Guaranty or in connection with the Indebtedness, any acceleration of any of
the Indebtedness, the foreclosure or sale of any Collateral.
SECTION 5. PRIMARY LIABILITY. This Guaranty constitutes a guarantee of
payment and performance and not of collection. Agent and/or Lenders may enforce
this Guaranty against Guarantor without first making demand on Borrower or any
other person or entity, or taking action against any Collateral, or instituting
collection proceedings upon the Indebtedness. Guarantor's liability for the
Indebtedness is primary, not secondary, and is joint and several with all
Obligors. Guarantor shall not be entitled to satisfy this Guaranty by
contributing ratably with any Obligor or otherwise paying less than the entire
unpaid Indebtedness. If any event occurs that would allow Agent and/or the
Lenders to accelerate any or all of the Indebtedness, but such acceleration as
to Borrower is prevented by law or otherwise, Guarantor agrees that for purposes
of this Guaranty the Indebtedness shall be deemed accelerated, and Guarantor
shall make
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payment on demand to Agent as required hereunder.
SECTION 6. RECOVERY OF AVOIDED PAYMENTS. If any amount applied by Agent and
the Lenders to the Indebtedness is subsequently challenged by a bankruptcy
trustee or debtor-in-possession as an avoidable transfer on the grounds that the
payment constituted a preferential payment or a fraudulent conveyance under
state law or the Bankruptcy Code or any successor statute thereto or on any
other grounds, the Agent and/or the Lenders may, at their option and in their
sole discretion, elect whether and to what extent to contest such challenge. If
the Agent and/or the Lenders contest the avoidance action, all costs of the
proceeding, including the Agent's and/or the Lenders' attorneys' fees, will
become part of the Indebtedness. If any of the contested amounts are
successfully avoided (whether through settlement or otherwise), the avoided
amount will become part of the Indebtedness hereunder. If the Agent and the
Lenders elect not to contest the avoidance action, the Agent and the Lenders may
tender the amount subject to the avoidance action to the bankruptcy court,
trustee or debtor-in-possession and the amount so advanced shall become part of
the Indebtedness hereunder. Guarantor's obligation to reimburse the Agent and
the Lenders for amounts due under this Section shall survive the purported
cancellation hereof.
SECTION 7. WAIVERS; SUBORDINATION. Guarantor hereby knowingly, willingly,
and irrevocably waives the following rights, defenses and benefits of law or
equity with respect to this Guaranty and the Indebtedness: (a) acceptance of
this Guaranty, presentment, protest, demand, notice and proof of reliance on
this Guaranty, and the filing of claims with a court in the event of bankruptcy
of Borrower or any Obligor; (b) any right to require Lender to marshal assets or
proceed first against Borrower, the Collateral or any Obligor (including any and
all rights under T.C.A ss. 47-12-101 or any similar statute) and any
counterclaim, setoff or recoupment; (c) any claim or defense based on principles
of suretyship or impairment of collateral, impairment of recourse or requirement
of diligence on the part of Lender in collecting the Indebtedness or in taking,
perfecting, protecting or proceeding against the Collateral; (d) any right of
notice or consent, including without limitation notice of or consent to (i) any
release, addition, exchange, sale, waiver, indulgence, compromise, settlement,
increase, decrease, extension, renewal, acceleration, impairment, or termination
of or with respect to the Indebtedness, any Collateral or any Obligor; (ii) any
of the other events or circumstances set forth in Section 4 of this Guaranty;
(iii) action taken, omission or determination not to act by the Agent or the
Lenders, Borrower or any Obligor with respect to the Indebtedness; (iv)
dishonor, default and all other notices that may be required of the Agent or the
Lenders in connection with the Indebtedness; and (v) to the extent permitted by
applicable law, notice of foreclosure or disposition of any Collateral.
Guarantor hereby subordinates any present or hereafter-acquired subrogation or
reimbursement rights arising hereunder and/or under any other document or
instrument or at law or in equity against Borrower, Borrower's Property, or any
Collateral, and Guarantor shall not assert any such rights until the
Indebtedness has been paid in full.
SECTION 8. GUARANTOR'S REPRESENTATIONS. Guarantor represents that (a) it is
a [corporation] duly organized, legally existing, and in good standing under the
laws of __________________________________________; (b) the execution, delivery
and performance of this Guaranty have been duly authorized by all necessary
[corporate] action on the part of
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Guarantor and will not violate any provisions of the [charter] or bylaws of
Guarantor; (c) this Guaranty is valid and binding according to its terms,
subject to no defense, counterclaim, set-off or objection of any kind, except,
the effect of applicable bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance and other similar laws relating to or affecting the rights
of creditors generally; (d) Guarantor's execution and performance of this
Guaranty do not require the consent of or the giving of notice to any other
person or entity; and (e) Guarantor is not in default in any respect that
affects its business, properties, operations, or condition, financial or
otherwise, under any indenture, mortgage, deed of trust, credit agreement, note,
agreement, or other contract to which Guarantor is a party or by which Guarantor
or any of its properties are bound, and the execution and performance of this
Guaranty will not cause any such violation or default or any lien on any of
Guarantor's properties.
SECTION 9. GUARANTOR'S COVENANTS. For so long as any Indebtedness remains
unpaid, Guarantor covenants that it will (a) not transfer, sell, encumber or
dispose of any material portion of its assets, or make any sale, conveyance or
assignment of any material assets except pursuant to an arms-length transaction
in which Guarantor receives reasonably equivalent to the value of the asset
transferred; (b) notify Agent immediately of any material changes in Guarantor's
financial condition; and (c) submit financial statements to Agent as described
in the Credit Agreement, and such additional financial information as Agent may
from time to time request.
SECTION 10. MAINTENANCE OF EXISTENCE. The Guarantor will maintain its
corporate existence, will not dissolve or otherwise dispose of all or
substantially all its assets and will not consolidate with or merge into another
legal entity or permit one or more other legal entities (other than the Borrower
or a Subsidiary of the Borrower) to consolidate with or merge into it unless (a)
the surviving, resulting or transferee legal entity (i) has a net worth
immediately after such consolidation or merger at least equal to that of the
Guarantor immediately prior to such consolidation or merger, and (ii) (if not
the Guarantor) assumes in writing all the obligations of the Guarantor under
this Agreement, and (b) the Guarantor or such surviving entity is not,
immediately after such merger, consolidation or transfer, in default in any
material respect under this Agreement.
SECTION 11. OPINIONS AND CERTIFICATES. Upon Lender's request, Guarantor
shall provide to Agent such opinions of counsel and certificates of officers as
Agent may reasonably request in connection with the execution and delivery of
this Guaranty, with respect to the authorization, due execution, and validity of
this Guaranty and the other representations made herein by Guarantor, all in
form and substance satisfactory to Lender.
SECTION 12. NO FIDUCIARY RELATIONSHIP; NO THIRD PARTY BENEFICIARIES. This
Guaranty has been executed for the sole benefit of the Agent and the Lenders as
an inducement to extend credit to Borrower, and no third party is authorized to
rely upon the Agent and the Lenders' rights hereunder or to rely upon an
assumption that the Agent and the Lenders have exercised or will exercise their
rights under any document.
SECTION 13. SURVIVAL. All warranties, representations, and covenants made
by the Guarantor herein shall be deemed to have been relied upon by the Agent
and the Lenders and the
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holder(s) from time to time of the Indebtedness and shall survive the delivery
to the Agent of this Guaranty.
SECTION 14. ASSIGNMENT. This Guaranty shall be binding upon the successors
and assigns of Guarantor, except that Guarantor shall not assign any rights or
delegate any obligations arising hereunder without the prior written consent of
the Agent. The Agent and the Lenders may assign and transfer this Guaranty in
whole or in part to any assignee of all or part of the Indebtedness, without
notice to or consent of Guarantor. Lenders' successors and assigns shall have
the right to rely upon this Guaranty in the same manner and with the same force
and effect as if such successor or assign were originally named as Agent and/or
Lender.
SECTION 15. NOTICES. All notices, requests, demands, directions and other
communications (collectively "notices") required under the provisions of this
Guaranty shall be in writing (including communication by facsimile transmission)
unless otherwise expressly permitted hereunder and shall be sent by hand, by
registered or certified mail return receipt requested, by overnight courier
service maintaining records of receipt, or by facsimile transmission with
confirmation in writing mailed first-class, in all cases with charges prepaid,
and any such properly given notice shall be effective upon the earlier of
receipt or (i) when delivered by hand, or (ii) the third Business Day after
being mailed, or (iii) the following Business Day if sent by overnight courier
service, or (iv) when sent by facsimile, answer back received. All notices to
Agent shall be addressed as follows:
If to Agent:
SunTrust Bank, Nashville, N.A.
201 Fourth Avenue North
Nashville, Tennessee 37219
Attention: Bryan Ford
Telecopy: (901) 766-7565
All notices to Guarantor shall be addressed to Borrower as the agent and
representative of Guarantor as follows:
If to Guarantor:
Sofamor Danek Group, Inc.
________________________________
________________________________
________________________________
All notices shall be sent to the applicable party at the address stated above or
in accordance with the last unrevoked written direction from such party to the
other party hereto.
SECTION 16. GENERAL CONSTRUCTION; CAPTIONS. All definitions and other terms
used in this Guaranty shall be equally applicable to the singular and plural
forms thereof, and all
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references to any gender shall include all other genders. The words "hereof",
"herein" and "hereunder" and words of similar import when used in this Guaranty
shall refer to this Guaranty as a whole and not to any particular provision of
this Guaranty, and Section, subsection, schedule and exhibit references are to
this Guaranty unless otherwise specified. The captions in this Guaranty are for
convenience only, and in no way limit or amplify the provisions hereof.
SECTION 17. REFERENCES TO DOCUMENTS AND LAWS. All defined terms and
references in this Guaranty with respect to any agreements, notes, instruments,
certificates or other documents shall be deemed to refer to such documents and
to any amendments, modifications, renewals, extensions, replacements,
restatements, substitutions and supplements of and to such documents. All
references to statutes and related regulations shall include any amendments
thereof and any successor statutes and regulations.
SECTION 18. CUMULATIVE REMEDIES. The remedies provided the Agent and the
Lenders in this Guaranty are not exclusive of any other remedies that may be
available to Lender under any other document or at law or equity.
SECTION 19. COSTS AND EXPENSES. Guarantor agrees to pay all costs and
expenses, including, without limitation, attorneys' fees and compensation for
time spent by the Agent and the Lenders' employees or consultants, that Agent or
Lender may incur in enforcing the terms of this Guaranty against Guarantor, in
protecting the Agent and the Lenders' rights hereunder, or in amending or
modifying any of the terms hereof.
SECTION 20. APPLICABLE LAW. The validity, construction and enforcement of
this Guaranty and all other documents executed with respect to the Indebtedness
shall be determined according to the internal laws of Tennessee.
SECTION 21. SEVERABILITY. Should any provision of this Guaranty be invalid
or unenforceable for any reason, the remaining provisions hereof shall remain in
full effect.
SECTION 22. JURISDICTION; VENUE; SERVICE OF PROCESS. GUARANTOR HEREBY
IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE COURTS LOCATED IN DAVIDSON
COUNTY, TENNESSEE, INCLUDING WITHOUT LIMITATION FEDERAL COURTS SITTING IN THE
MIDDLE DISTRICT OF TENNESSEE AND THE CHANCERY COURT FOR DAVIDSON COUNTY,
TENNESSEE, FOR ANY SUIT BROUGHT OR ACTION COMMENCED IN CONNECTION WITH THIS
GUARANTY, ANY OF THE INDEBTEDNESS, ANY COLLATERAL, ANY OBLIGOR, OR ANY
RELATIONSHIP AMONG AGENT, LENDER AND GUARANTOR, AND AGREES NOT TO CONTEST OR
CHALLENGE VENUE IN ANY SUCH COURTS. Guarantor irrevocably consents to the
service of process of any such courts in any such action or proceeding by
registered or certified mail, postage prepaid, return receipt requested, to
Guarantor at the address listed in this Guaranty or to such other address as
Guarantor may have furnished to Agent in writing, and agrees that such service
shall become effective thirty (30) days after such mailing. However, nothing
herein shall affect the right of Lender or Guarantor to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise
proceed against
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Agent, Lenders or Guarantor in any other jurisdiction.
SECTION 23. JURY WAIVER. EACH OF GUARANTOR, AGENT AND LENDERS HEREBY
KNOWINGLY, WILLINGLY AND IRREVOCABLY WAIVES ITS RIGHTS TO DEMAND A JURY TRIAL IN
ANY ACTION OR PROCEEDING INVOLVING THIS GUARANTY, ANY OF THE INDEBTEDNESS, ANY
COLLATERAL, ANY OBLIGOR OR ANY RELATIONSHIP BETWEEN THE LENDER AND GUARANTOR.
GUARANTOR WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THE FOREGOING WAIVERS
WITH ITS LEGAL COUNSEL AND HAS KNOWINGLY AND VOLUNTARILY WAIVED ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A
COPY OF THIS SECTION MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
SECTION 24. WAIVER OF DAMAGES. Except to the extent prohibited by law, in
any action or proceeding involving this Guaranty, any of the Indebtedness, any
Collateral, any Obligor or any relationship between the Lenders, the Agent and
the Guarantor, the Guarantor hereby irrevocably and unconditionally waives any
and all rights under the laws of any state to claim or recover any special,
exemplary, punitive, consequential or other damages other than actual direct
damages.
SECTION 25. AMENDMENT AND WAIVER IN WRITING. No provision of this Guaranty
can be amended or waived, except by a statement in writing signed by the party
against which enforcement of the amendment or waiver is sought. No waiver,
amendment, release or modification of this Guaranty shall be established by
conduct, custom or course of dealing. Agent's indulgence in the existence of a
default with respect to the Indebtedness or under this Guaranty or any other
departure from the terms of this Guaranty shall not prejudice any of the Agent's
or the Lenders' rights, including without limitation the right to make demand
and recover from Guarantor.
SECTION 26. COUNTERPARTS. This Guaranty may be executed in any number of
counterparts (by facsimile transmission or otherwise), each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
SECTION 27. ENTIRE AGREEMENT; NO ORAL REPRESENTATIONS LIMITING ENFORCEMENT.
This Guaranty represents the entire agreement between the parties concerning the
liability of Guarantor for the Indebtedness, superseding any and all other
agreements, promises or representations existing prior to or made simultaneously
with this Guaranty. Any oral statements regarding Guarantor's liability for the
Indebtedness are merged herein.
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This Guaranty is executed as of the date first written above.
GUARANTOR:
_____________
By:___________________________________
Title:________________________________
Accepted __________________, 1997 by:
AGENT FOR THE LENDERS:
SUNTRUST BANK, NASHVILLE, N.A.
By:____________________________________
Title:_________________________________
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EXHIBIT G
Form of Certificate of Compliance
EXHIBIT G TO CREDIT AGREEMENT
COMPLIANCE REPORT
This Compliance Report is being delivered to SunTrust Bank, Nashville, N.A., as
Agent, pursuant to Section 5.01(c) of that certain Credit Agreement dated as of
July ____, 1997 among Sofamor Danek Group, Inc. (the "Borrower"), the Lenders
and SunTrust Bank, Nashville, N.A., as Agent for the Lenders (together with all
amendments, modifications and supplements thereto and all restatements thereof,
the "Credit Agreement"). All capitalized terms used herein without definition
shall have the meanings assigned to those terms in the Credit Agreement. The
undersigned on behalf of the Borrower, to the best of his/her knowledge,
certifies that as of the last day of the most recently ended Fiscal Quarter of
the Borrower dated ________________, 19_____ (the "Compliance Date"):
I. Ratio Requirements
A. The ratio of Borrower's Funded Debt (determined on a consolidated
basis) to its EBITDA, (determined on a consolidated basis) as of the
Compliance Date was _________ to ___________ calculated as follows
(Reference Section 7.01(a) of the Loan Agreement):
(a) Funded Debt (For the
Fiscal Quarter ended on
__________________, 19________) __________
(b) Annualized EBITDA (Commencing
with the Fiscal Quarter ended on
__________________, 19________, EBITDA is
calculated on a trailing 4 quarter basis) _________
(c) (a) / (b) _________
Required: Not less than 1.5 to 1.0
B. The ratio of Borrower's Funded Debt (determined on consolidated basis)
to its Total Capitalization (determined on a consolidated basis) as of
the Compliance Date was _______ to ________, calculated as follows
(Reference Section 7.01(b) of the Credit Agreement):
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(a) Funded Debt __________
(b) Total Capitalization __________
(c) (a) / (b) __________
Required: Not to exceed .50 to 1.0
II. Tangible Net Worth. Borrower's Tangible Net Worth for the Final
Quarter ending ____________, 19____ is an amount equal to $________.
(Reference Section 7.01(c) of the Credit Agreement).
The undersigned _________________ of Borrower executing and delivering this
Compliance Report on behalf of the Borrower further certifies that he/she has no
knowledge of any Event of Default or Default Condition under the Loan Agreement.
IN WITNESS WHEREOF, the Borrower, through its duly authorized officer, has
executed this Compliance Report this the _____ day of ___________, 19____.
SOFAMOR DANEK GROUP, INC.
By:_______________________________
Title:____________________________
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EXHIBIT H
Form of Negative Pledge Agreement
NEGATIVE PLEDGE AGREEMENT
THIS AGREEMENT is dated as of July ____, 1997, by and between SOFAMOR DANEK
GROUP, INC., DANEK MEDICAL, INC., WARSAW ORTHOPEDIC, INC., SOFAMOR DANEK GmbH,
SOFAMOR DANEK ASIA PACIFIC LIMITED, SOFAMOR S.N.C., SOFAMOR DANEK ITALIA S.r.l.,
SOFAMOR DANEK IBERICA S.A., MEDICAL EDUCATION K.K., SOFAMOR DANEK CANADA, INC.,
SOFAMOR DANEK NEVADA, INC., SOFAMOR DANEK AUSTRALIA PTY. LTD., SURGICAL
NAVIGATION TECHNOLOGIES, INC., MEDNEXT, INC., SOFAMOR DANEK PROPERTIES, INC.,
SOFAMOR DANEK (PUERTO RICO), INC., COLORADO S.A., SOFAMOR DANEK SOUTH AFRICA
(PTY.) LIMITED, SOFAMOR DANEK NEDERLAND B.V., SOFAMOR DANEK (U.K.) LIMITED,
SOFAMOR DANEK HOLDINGS, INC., SDGI HOLDINGS, INC., DMI TENNESSEE HOLDINGS, INC.
and SOFAMOR DANEK, L.P. (collectively, the "Pledgors"), and SUNTRUST BANK,
NASHVILLE, N.A., a national banking association (the "Agent").
RECITALS:
A. Sofamor Danek Group, Inc. ("Sofamor Danek Group") is a party to a Credit
Agreement dated as of the date hereof, executed by and between Sofamor Danek
Group, the Agent, and the lenders listed or referred to therein (the "Lenders")
(as such credit agreement may be amended or restated from time to time, the
"Credit Agreement"), and related instruments, notes, agreements and documents
executed in connection therewith which are defined in the Credit Agreement as
the "Loan Documents". Danek Medical, Inc., Warsaw Orthopedic, Inc., Sofamor
Danek GmbH, Sofamor Danek Asia Pacific Limited, Sofamor S.N.C., Sofamor Danek
Italia S.r.l., Sofamor Danek Iberica S.A., Sofamor Danek Canada, Inc., Sofamor
Danek Nevada, Inc., Sofamor Danek Australia Pty. Ltd., Surgical Navigation
Technologies, Inc., Mednext, Inc., Sofamor Danek Properties, Inc., Sofamor Danek
(Puerto Rico), Inc., Colorado S.A., Sofamor Danek South Africa (Pty.) Limited,
Sofamor Danek Nederland B.V., Sofamor Danek (U.K.) Limited, Sofamor Danek
Holdings, Inc., SDGI Holdings, Inc., DMI Tennessee Holdings, Inc. and Sofamor
Danek, L.P. (the "Significant Subsidiaries") have each executed a separate
Guaranty Agreement, guaranteeing (under the terms and conditions set forth
therein) the obligations of Sofamor Danek Group under the Credit Agreement and
the applicable Loan Documents.
B. The Pledgors are willing to deliver this Negative Pledge Agreement as an
inducement to Agent and the Lenders to enter into the Credit Agreement and the
Loan Documents.
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C. Terms not otherwise defined herein shall have the meanings ascribed to
such terms in the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, and of the advance of credit by Lenders under the
Credit Agreement, the parties hereto agree as follows:
Section 1. Covenant. The Pledgors hereby represent and covenant that they
shall not assign, transfer, sell, encumber, pledge, or deliver to any person or
entity, or grant any person or entity a lien or security interest upon their
respective assets except for Liens permitted under Section 6.02 of the Credit
Agreement. The obligations of the Pledgors hereunder shall not be impaired,
modified, released or limited by (a) any waiver, renewal, extension, indulgence,
change in or modification of any of the obligations and liabilities of the
Pledgors contained in the Credit Agreement or in any Loan Documents as
applicable, (b) the assertion or exercise by Agent and/or Lenders of any rights
or remedies under the Credit Agreement (or the Loan Documents) or its delay in
or failure to assert or exercise any such rights or remedies, and (c) the
dissolution or restructuring of any of the Pledgors.
Section 2. Representations and Warranties. The Pledgors hereby represent
and warrant to Agent and Lenders that:
(a) the Pledgors are the exclusive legal and equitable owners of all
their assets reflected in the Financial Statements and hold the same free
and clear of all liens, charges, encumbrances, restrictions and security
interests of every kind and nature, except the restrictions in favor of
Agent and Lenders contained herein, the restrictions reflected in the
Financial Statements or permitted as a Lien under Section 6.02 of the Loan
Agreement.
(b) the Pledgors have good right and lawful authority to enter into
this Pledge Agreement and will defend title to their respective assets
against the claims of all persons whomsoever.
Section 3. Default. The Pledgor acknowledges that in the event that the
Pledgor should breach any of its agreements, covenants, representations or
warranties contained herein, and the failure to observe any such agreements
continues to be unremedied for a period of ten (10) Business Days following the
earlier of the date the Pledgor has knowledge of such failure or the date the
Pledgor receives written notice from Agent specifying such failure, then such
breach shall constitute a default hereunder and an Event of Default under the
Credit Agreement.
Section 4. No Waiver. No failure on the part of Agent to exercise, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof.
Section 5. Termination. This Agreement shall terminate on the date upon
which the Credit Agreement is terminated and all obligations thereunder (and
under the Loan Documents)
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have been paid in full.
Section 6. Notices. All communications and notices hereunder shall be in
writing delivered to Sofamor Danek Group (as agent and representative of all
Pledgors), in the manner set forth in the Credit Agreement.
Section 7. Governing Law; Amendments. This Agreement shall in all respects
be construed in accordance with and governed by the laws of the State of
Tennessee.
Section 8. Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which taken together shall constitute but one and the same instrument.
Section 9. Headings. Section headings used herein are for convenience only
and are not to effect the construction of, or to be taken into consideration in
interpreting, this Agreement.
Section 10. Severability. If any term or provision of this Agreement is
held to be invalid, illegal, or unenforceable, the validity of the other
provisions shall not be affected thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Negative Pledge
Agreement to be duly executed by their respective officers as of the date first
above written.
AGENT FOR THE LENDERS:
SUNTRUST BANK, NASHVILLE, N.A.
By:_________________________________
Title:______________________________
PLEDGORS:
MEDICAL EDUCATION K.K. SOFAMOR DANEK GROUP, INC.
By:_____________________________ By:_________________________________
Title:__________________________ Title:______________________________
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SOFAMOR DANEK CANADA, INC. DANEK MEDICAL, INC.
By:__________________________ By:_______________________________
Title:_______________________ Title:____________________________
SOFAMOR DANEK NEVADA, INC. WARSAW ORTHOPEDIC, INC.
By:__________________________ By:_______________________________
Title:_______________________ Title:____________________________
SURGICAL NAVIGATION TECHNOLOGIES, SOFAMOR DANEK AUSTRALIA PTY.
INC. LTD.
By:__________________________ By:_______________________________
Title:_______________________ Title:____________________________
MEDNEXT, INC. SOFAMOR DANEK GmbH
By:__________________________ By:_______________________________
Title:_______________________ Title:____________________________
SOFAMOR DANEK PROPERTIES, INC. SOFAMOR DANEK
ASIA PACIFIC LIMITED
By:__________________________ By:_______________________________
Title:_______________________ Title:____________________________
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SOFAMOR DANEK (PUERTO RICO), INC. SOFAMOR S.N.C.
By:__________________________ By:_______________________________
Title:_______________________ Title:____________________________
COLORADO S.A. SOFAMOR DANEK ITALIA S.r.l.
By:__________________________ By:_______________________________
Title:_______________________ Title:____________________________
SOFAMOR DANEK SOUTH AFRICA (PTY.) SOFAMOR DANEK IBERICA S.A.
LIMITED
By:__________________________ By:_______________________________
Title:_______________________ Title:____________________________
SOFAMOR DANEK NEDERLAND B.V. SOFAMOR DANEK (U.K.) LIMITED
By:__________________________ By:_______________________________
Title:_______________________ Title:____________________________
SOFAMOR DANEK HOLDINGS, INC. SDGI HOLDINGS, INC.
LIMITED
By:__________________________ By:_______________________________
Title:_______________________ Title:____________________________
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DMI TENNESSEE HOLDINGS, INC. SOFAMOR DANEK, L.P.
By:__________________________ By:_______________________________
Title:_______________________ Title:____________________________
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EXHIBIT I
Identification of Subsidiaries
EXHIBIT I
<TABLE>
<CAPTION>
Subsidiaries of Sofamor Danek Group, Inc. % Owned Type Significant
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Danek Medical, Inc. 100% Domestic X
Warsaw Orthopedic, Inc. 100% Domestic X
Sofamor S.N.C. 99.1% Foreign X
Danek Sales Corporation 100% Domestic
Medical Education K.K. 100% Foreign X
Sofamor Danek Americas and
Asia Pacific Corporation 100% Domestic
Sofamor Danek Asia Pacific Ltd. 10% Foreign X
Sofamor Danek GmbH 25% Foreign X
Danek International, Inc. 100% Foreign
Danek Capital Corporation 100% Domestic
Sofamor Danek Properties, Inc. 100% Domestic X
Sofamor Danek Canada, Inc. 100% Foreign X
Kobayashi Sofamor Danek K.K. 50% Foreign
Mednext, Inc. 100% Domestic X
Sofamor Danek Nevada, Inc. 100% Domestic X
Sofamor Danek Australia Pty. Ltd. 100% Foreign X
Danek Korea Co., Ltd. 50% Foreign
Sofamor Danek (Puerto Rico), Inc. 100% Foreign X
Colorado S.A. 100% Foreign X
Sofamor Danek South Africa (Pty.) Limited 100% Foreign X
Sofamor Danek Nederland B.V. 100% Foreign X
Sofamor Danek (U.K.) Limited 100% Foreign X
Sofamor Danek Holdings, Inc. 100% Domestic X
</TABLE>
<TABLE>
<CAPTION>
Subsidiaries of Sofamor S.N.C. % Owned Type Significant
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Sofamor Danek Asia Pacific Ltd. 90% Foreign
Sofamor Danek GmbH 75% Foreign
Sofamor Danek Italia S.r.l. 100% Foreign X
Sofamor Danek Iberica S.A. 100% Foreign X
Somepic Technologie S.A. 33.75% Foreign
Sofamor Danek Benelux S.A. 50% Foreign
</TABLE>
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<PAGE> 93
<TABLE>
<CAPTION>
Subsidiaries of Sofamor Danek Properties, Inc. % Owned Type Significant
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Surgical Navigation Technologies, Inc. 100% Domestic X
</TABLE>
<TABLE>
<CAPTION>
Subsidiaries of Danek Medical, Inc. % Owned Type Significant
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Sofamor S.N.C. 0.9% Foreign
Richards SDA L.L.C. 33% Domestic
SDGI Holdings, Inc. 100% Domestic X
DMI Tennessee Holdings, Inc. 100% Domestic X
DMI Delaware Holdings, Inc. 100% Domestic
Sofamor Danek L.P. (Limited Partnership owned X
1% by the general partner, DMI Tennessee
Holdings, Inc. and 99% by the limited
partner, DMI Delaware Holdings, Inc.)
</TABLE>
<TABLE>
<CAPTION>
Subsidiaries of Surgical Navigation
Technologies, Inc. % Owned Type Significant
- ----------------------------------------------------------------------------------------------------
<S> <C> <C>
Intell X L.L.C. 19.9% Domestic
</TABLE>
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EXHIBIT J
Borrower's Investment Policy
INVESTMENT POLICY
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<PAGE> 95
TABLE OF CONTENTS
I. Overview
II. Objectives & Strategies
III. Portfolio Composition & Constraints
IV. Financial Institutions and Safekeeping
V. Responsibility & Required Approvals
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I. OVERVIEW
A. Cash Balances in excess of normal operating requirements will be invested
in a manner that maximizes return and liquidity and minimizes both default
and market risk. Investments will generally be of a short-term nature,
assuring sufficient liquidity to meet obligations and take advantage of
opportunities as they arise.
B. Investment instrument alternations will include Treasury Issues, Agency
Issues, Tax-Free Municipals, Repurchase Agreements, Commercial Paper, Money
Market Preferreds, Certificates of Deposit, Bankers' Acceptances, Monetary
SICAV and Mutual Funds. Investments will be diversified by instrument and
maturity to minimize risk. Investment quality will be maintained at
"investment grade" ratings to minimize default risk. Maturities will not
exceed one year. Average maturity will not exceed 180 days.
C. Each financial institution will receive specific instructions regarding
which employees of the company are authorized to initiate investment
transactions. Investments will be made "delivery versus payment" to third
party safekeeping.
D. Required approvals before making an investment for Sofamor Danek Group,
Inc. include any two of the following: Chief Executive Officer, President,
Chief Financial Officer or Treasurer. Required approvals before making an
investment for Sofamor S.N.C. and its subsidiaries include two of the
following: President, Executive Vice President, or Vice President of
Finance of Sofamor S.N.C.
E. Any exceptions or changes to these investment policies require approval by
the Board of Directors.
II. OBJECTIVES & STRATEGIES
The investment objectives of the Company include:
1. Preservation of Principal - The maintenance of market value equal
to market price;
2. Liquidity - The ability to meet all operating requirements which
may reasonably be anticipated and to take advantage of
opportunities as they arise; and
3. Competitive Yield - Earning a rate of return greater than the
return on a three month treasury bill.
The investment strategies of the Company include:
1. Investing in only investment grade securities as defined herein;
2. Evaluating broker/dealers for capital adequacy;
3. Diversifying instruments and maturities to minimize risk;
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4. Maintaining cash flow projections to determine investment securities;
and
5. Monitoring the portfolio, economic sectors and the overall
financial markets to adjust the portfolio on a timely basis
and realize incremental investment earning and/or minimize the
possibility of losses.
III. PORTFOLIO COMPOSITION & CONSTRAINTS
Specific alternatives for Sofamor Danek Group, Inc. investment
instruments and the related maximum percentages of the portfolio
and maximum maturities are:
1. U. S. Treasury 75% 1 year
2. U.S. Agency Securities 75% 1 year
3. Short-Term Municipal Notes 50% 6 months
4. Municipal Bonds 50% 1 year
5. Commercial Paper 50% 270 days
6. Bankers Acceptance 50% 270 days
7. Money Market Preferreds 50% 180 days
8. Repurchase Agreements 50% 90 days
9. Certificates of Deposit 25% 1 year
Specific constraints are as follows:
- Short-Term Municipal Notes are limited to those with an S & P
rating of A1 or a Moody's rating of MIG1.
- Commercial Paper is limited to that with an S & P rating of A1 or
a Moody's rating of P1. Minimum long-term debt rating, in
addition to the Commercial Paper rating, is an S & P A- or a
Moody's A3. Limited per company to the lesser of 10% of the
portfolio or $3,000,000.
- Bankers' Acceptances are limited to those with a long-term debt
rating of an S & P A- or a Moody's A3 or better. Limited per bank
to the lesser of 10% of the portfolio or $3,000,000.
- Money Market Preferreds and Municipal Bonds are limited to those
with an S & P or Moody's rating of A.
- Repurchase Agreements are limited to those involving investment
instruments allowed under this policy. Limited per institution to
the lesser of 50% of the portfolio or $3,500,000 with temporary
excesses in anticipation of extraordinary payments or tax
payments.
- Certificates of Deposit are limited to amounts covered by FDIC
insurance (principal
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and interest inclusive)
Specific alternatives for Sofamor S.N.C. and its subsidiaries
investment instruments and the related maximum percentages of the
portfolio and maximum maturities are:
1. Monetary SICAV 75% 6 months
2. Certificates of Deposit 75% 3 months
3. Commercial Paper 50% 1 year
4. Treasury Notes 25% 1 year
5. Treasury negotiable obligations 25% 1 year
6. Specialized Financial Inst. Notes 20% 1 year
7. Bankers' Acceptance 25% 6 months
Specific constraints are the same, where applicable, to the above
outlined constraints on Sofamor Danek Group, Inc. investments.
Investment quality will be at least the equivalent to the Moody's or S
& P ratings outlined above. In the absence of FDIC insurance,
certificates of deposit will be purchased only from banks approved by
the Treasurer of Sofamor Danek Group.
IV. FINANCIAL INSTITUTIONS AND SAFEKEEPING
All financial institutions engaging in investment transactions with the
Company will receive a letter signed by the Chief Financial Officer of
Sofamor Danek Group or Vice President of Finance of Sofamor S.N.C. that
describes the relationship that the company is establishing with the
financial institution.
This letter will contain the information shown below:
- Company employees who are authorized to buy and sell
investments on behalf of the company.
- Company employees who are authorized to wire or otherwise
transfer funds out of company accounts.
- Company employees who are authorized to make changes to the
company's instructions regarding authority, delivery
instructions, or other critical aspects of the relationship.
- Company employees who should be notified if the dealer or
financial institution detects any activity that it believes
may be irregular given its understanding of the company's
investments.
In order to insure the uniform safekeeping of securities purchased by
the company, all investments (other than the overnight sweep repurchase
agreement with the company's lead bank) will be marked "delivery versus
payment" to third party safekeeping.
-93-
<PAGE> 99
V. RESPONSIBILITY & REQUIRED APPROVALS
The responsibility for making Sofamor Danek Group, Inc. investments pursuant to
this policy rests with the Assistant Treasurer. In the absence of the Assistant
Treasurer, the Chief Financial Officer or Treasurer will assume such
responsibility. Required approvals before making an investment include any two
of the following: Chief Executive Officer, President, Chief Financial Officer
or Treasurer.
The responsibility for making Sofamor S.N.C. and its subsidiaries investments
pursuant to this policy rests with the Vice President of Finance. In the absence
of the Vice President of Finance, the President or Executive Vice President will
assume such responsibility. Required approvals before making an investment
include any two the following: President, Executive Vice President or Vice
President of Finance.
Any exceptions or changes to the investment policies require approval by the
Board of Directors.
-94-
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