EX-10.1 2 dex101.htm CREDIT AGREEMENT Credit Agreement

Exhibit 10.1

 

EXECUTION COPY

 


 

Published CUSIP Number:                     

 

CREDIT AGREEMENT

 

Dated as of June 18, 2004

 

among

 

BIOMET, INC.

and

CERTAIN SUBSIDIARIES

 

as Borrowers,

 

BANK OF AMERICA, N.A.,

 

as Administrative Agent, Swing Line Lender

and

L/C Issuer,

 

UBS SECURITIES LLC,

 

as Syndication Agent,

 

ABN AMRO BANK N.V., FORTIS CAPITAL CORP.

and KEYBANK NATIONAL ASSOCIATION,

 

as Documentation Agents

 

and

 

The Other Lenders Party Hereto

 

BANC OF AMERICA SECURITIES LLC

 

and

 

UBS SECURITIES LLC,

 

as

 

Joint Lead Arrangers and Joint Book Managers

 



TABLE OF CONTENTS

 

Section


      Page

ARTICLE I.

 

        DEFINITIONS AND ACCOUNTING TERMS

  1

1.01

 

Defined Terms

  1

1.02

 

Other Interpretive Provisions

  23

1.03

 

Accounting Terms

  24

1.04

 

Exchange Rates; Currency Equivalents

  25

1.05

 

Additional Alternative Currencies

  25

1.06

 

Change of Currency

  26

1.07

 

Times of Day

  26

1.08

 

Letter of Credit Amounts

  26

ARTICLE II.

 

        THE COMMITMENTS AND CREDIT EXTENSIONS

  27

2.01

 

The Loans

  27

2.02

 

Borrowings, Conversions and Continuations of Loans

  27

2.03

 

Letters of Credit

  29

2.04

 

Swing Line Loans

  37

2.05

 

Prepayments

  40

2.06

 

Termination or Reduction of Commitments

  42

2.07

 

Repayment of Loans

  42

2.08

 

Interest

  42

2.09

 

Fees

  43

2.10

 

Computation of Interest and Fees

  43

2.11

 

Evidence of Debt

  44

2.12

 

Payments Generally; Administrative Agent’s Clawback

  44

2.13

 

Sharing of Payments by Lenders

  46

2.14

 

Designated Borrowers

  47

ARTICLE III.

 

        TAXES, YIELD PROTECTION AND ILLEGALITY

  48

3.01

 

Taxes

  48

3.02

 

Illegality

  51

3.03

 

Inability to Determine Rates

  51

3.04

 

Increased Costs; Reserves on Eurocurrency Rate Loans

  52

3.05

 

Compensation for Losses

  54

 

-i-


TABLE OF CONTENTS

(Continued)

 

         Page

3.06

 

Mitigation Obligations; Replacement of Lenders

   54

3.07

 

Survival

   55

ARTICLE IV.

 

        CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

   55

4.01

 

Conditions of Initial Credit Extension

   55

4.02

 

Conditions to all Credit Extensions

   56

ARTICLE V.

 

        REPRESENTATIONS AND WARRANTIES

   57

5.01

 

Existence, Qualification and Power

   57

5.02

 

Authorization; No Contravention

   58

5.03

 

Governmental Authorization; Other Consents

   58

5.04

 

Binding Effect

   58

5.05

 

Financial Statements; No Material Adverse Effect

   58

5.06

 

Litigation

   59

5.07

 

No Default

   59

5.08

 

Ownership of Property; Liens

   59

5.09

 

Environmental Compliance

   59

5.10

 

Insurance

   59

5.11

 

Taxes

   60

5.12

 

ERISA Compliance

   60

5.13

 

Equity Interests

   60

5.14

 

Margin Regulations; Investment Company Act; Public Utility Holding Company Act

   61

5.15

 

Disclosure

   61

5.16

 

Compliance with Laws

   61

5.17

 

Intellectual Property; Licenses, Etc

   61

5.18

 

Labor Matters

   62

5.19

 

Existing Indebtedness

   62

5.20

 

Representations as to Foreign Obligors

   62

ARTICLE VI.

 

        AFFIRMATIVE COVENANTS

   63

6.01

 

Financial Statements

   63

6.02

 

Certificates; Other Information

   64

 

-ii-


TABLE OF CONTENTS

(Continued)

 

         Page

6.03

 

Notices

   65

6.04

 

Payment of Obligations

   66

6.05

 

Preservation of Existence, Etc

   66

6.06

 

Maintenance of Properties

   66

6.07

 

Maintenance of Insurance

   67

6.08

 

Compliance with Laws

   67

6.09

 

Books and Records

   67

6.10

 

Inspection Rights

   67

6.11

 

Use of Proceeds

   67

6.12

 

Approvals and Authorizations

   67

6.13

 

Additional Subsidiary Guarantors

   67

6.14

 

Intellectual Property

   68

ARTICLE VII.

 

        NEGATIVE COVENANTS

   68

7.01

 

Liens

   68

7.02

 

Investments

   70

7.03

 

Indebtedness

   71

7.04

 

Fundamental Changes

   72

7.05

 

Dispositions

   73

7.06

 

Restricted Payments

   73

7.07

 

Change in Nature of Business

   73

7.08

 

Transactions with Affiliates

   74

7.09

 

Burdensome Agreements

   74

7.10

 

Use of Proceeds

   74

7.11

 

Change in Corporate Structure or Fiscal Year

   74

7.12

 

Financial Covenants

   74

ARTICLE VIII.

 

        EVENTS OF DEFAULT AND REMEDIES

   75

8.01

 

Events of Default

   75

8.02

 

Remedies Upon Event of Default

   77

8.03

 

Application of Funds

   77

ARTICLE IX.

 

        ADMINISTRATIVE AGENT

   78

 

-iii-


TABLE OF CONTENTS

(Continued)

 

         Page

9.01

 

Appointment and Authority

   78

9.02

 

Rights as a Lender

   78

9.03

 

Exculpatory Provisions

   79

9.04

 

Reliance by Administrative Agent

   80

9.05

 

Delegation of Duties

   80

9.06

 

Resignation of Administrative Agent

   80

9.07

 

Non-Reliance on Administrative Agent and Other Lenders

   81

9.08

 

No Other Duties, Etc

   81

9.09

 

Administrative Agent May File Proofs of Claim

   81

9.10

 

Guaranty Matters

   82

ARTICLE X.

 

        MISCELLANEOUS

   82

10.01

 

Amendments, Etc

   82

10.02

 

Notices Effectiveness; Electronic Communication

   84

10.03

 

No Waiver; Cumulative Remedies

   85

10.04

 

Expenses; Indemnity; Damage Waiver

   85

10.05

 

Payments Set Aside

   87

10.06

 

Successors and Assigns

   87

10.07

 

Treatment of Certain Information; Confidentiality

   91

10.08

 

Right of Setoff

   91

10.09

 

Interest Rate Limitation

   92

10.10

 

Counterparts; Integration; Effectiveness

   92

10.11

 

Survival of Representations and Warranties

   92

10.12

 

Severability

   93

10.13

 

Replacement of Lenders

   93

10.14

 

Governing Law; Jurisdiction, Etc.

   93

10.15

 

Waiver of Right to Trial by Jury

   95

10.16

 

USA Patriot Act Notice

   95

10.17

 

Judgment Currency

   95

 

-iv-


SCHEDULES

 

1.01

  

Mandatory Cost Formulae

2.01

  

Commitments and Applicable Percentages

5.13

  

Subsidiaries

7.01

  

Existing Liens

7.03

  

Existing Indebtedness

10.02

  

Administrative Agent’s Office, Certain Addresses for Notices

 

EXHIBITS

 

A

  

Loan Notice

B

  

Swing Line Loan Notice

C

  

Note

D

  

Compliance Certificate

E

  

Assignment and Assumption

F

  

Company Guaranty

G-1

  

Foreign Subsidiary Guaranty

G-2

  

Domestic Subsidiary Guaranty

H

  

Designated Borrower Request and Assumption Agreement

I

  

Designated Borrower Notice

J

  

Opinion Matters

K

  

Joinder Agreement

 

v


CREDIT AGREEMENT

 

This CREDIT AGREEMENT (“Agreement”) is entered into as of June 18, 2004, among BIOMET, INC., an Indiana corporation (the “Company”), certain Material Subsidiaries of the Company from time to time party hereto pursuant to Section 2.14 (each a “Designated Borrower” and, together with the Company, the “Borrowers” and, each a “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, UBS SECURITIES LLC, as Syndication Agent and ABN AMRO BANK N.V., FORTIS CAPITAL CORP. and KEYBANK NATIONAL ASSOCIATION, as Documentation Agents.

 

WHEREAS, the Company has requested that the Lenders provide a revolving credit facility, and the Lenders are willing to do so on the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

 

ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS

 

1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:

 

Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent appointed in accordance with the provisions contained herein.

 

Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify to the Company and the Lenders.

 

Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

 

Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

 

Agreement Currency” has the meaning specified in Section 10.17.

 

Aggregate Commitments” means the Commitments of all the Lenders.

 

Agreement” means this Credit Agreement, as amended, amended and restated, supplemented or otherwise modified from time to time.

 

Alternative Currency” means each of Euro, Yen and each other currency (other than Dollars) that is approved in accordance with Section 1.05.

 

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Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.

 

Alternative Currency Sublimit” means an amount equal to the lesser of the Aggregate Commitments and U.S. $125 million. The Alternative Currency Sublimit is part of, and not in addition to, the Aggregate Commitments.

 

Applicable Foreign Obligor Documents” has the meaning specified in Section 5.20.

 

Applicable Percentage” means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s Commitment at such time. If the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

 

Applicable Rate” means the following percentages per annum, based upon the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):

 

Applicable Rate

 

Pricing

Level


 

Consolidated

Leverage Ratio


  Facility Fee

   

Eurocurrency
Rate +

Letters of
Credit


    Base
Rate +


 
1   £1.00:1   .125 %   .375 %   0 %
2   >1.00:1 but <1.50:1   .150 %   .475 %   0 %
3   ³1.50:1 but <2.00:1   .175 %   .575 %   0 %
4   ³2.00:1 but <2.50:1   .225 %   .775 %   0 %
5   ³2.50:1   .300 %   1.075 %   .075 %

 

Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 5 shall apply as of the fifth Business Day after the date on which such Compliance Certificate was required to have been delivered and Pricing Level 5 shall remain in effect to (and including) the date the Administrative Agent receives such Compliance Certificate. The Applicable Rate in effect from the Closing Date through the date the initial quarterly Compliance Certificate is delivered shall be determined based upon Pricing Level 1.

 

2


Applicable Time” means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.

 

Applicant Borrower” has the meaning specified in Section 2.14.

 

Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

Arrangers” means Banc of America Securities LLC and UBS Securities LLC, in their capacities as sole lead arrangers and sole book managers.

 

Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form approved by the Administrative Agent.

 

Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Off-Balance Sheet Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capitalized Lease.

 

Audited Financial Statements” means the audited consolidated balance sheet of the Company and the Subsidiaries for the fiscal years ended May 31, 2001, May 31, 2002 and May 31, 2003, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal years of the Company and the Subsidiaries, including the notes thereto.

 

Availability Period” means the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of all Aggregate Commitments pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.

 

Bank of America” means Bank of America, N.A. and its successors.

 

Banc of America Securities” means Banc of America Securities LLC and its successors.

 

Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% or (b) the rate of interest in effect for such day as publicly

 

3


announced from time to time by Bank of America as its “prime rate.” The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

 

Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.

 

Borrower” and “Borrowers” each has the meaning specified in the introductory paragraph hereto.

 

Borrower Materials” has the meaning specified in Section 6.02.

 

Borrowing” means a borrowing consisting of simultaneous Loans of the same Type, in the same currency and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01, or a Swing Line Borrowing, as the context may require.

 

Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is located and:

 

(a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market;

 

(b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such Eurocurrency Rate Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET Day;

 

(c) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in a currency other than Dollars or Euro, means any such day on which dealings in deposits in the relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency; and

 

(d) if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars or Euro in respect of a Eurocurrency Rate Loan denominated in a currency other than Dollars or Euro, or any other dealings in any currency other than Dollars or Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.

 

4


Capitalized Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee which in accordance with GAAP, is or should be accounted for, as a capital lease on the balance sheet of such Person.

 

Cash Collateralize” has the meaning specified in Section 2.03(g).

 

Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.

 

Change of Control” means an event or series of events by which:

 

(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 25% or more of the equity securities of the Company entitled to vote for members of the board of directors or equivalent governing body of the Company on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right);

 

(b) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of such Person cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors); or

 

5


(c) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of the Company, or control over the equity securities of the Company entitled to vote for members of the board of directors or equivalent governing body of the Company on a fully-diluted basis (and taking into account all such securities that such Person or group has the right to acquire pursuant to any option right) representing 25% or more of the combined voting power of such securities.

 

Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in the case of Section 4.01(b), waived by the Person entitled to receive the applicable payment).

 

Code” means the Internal Revenue Code of 1986.

 

Commitment” means, as to each Lender, its obligation to (a) make Loans to the Borrowers pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

 

Company” has the meaning specified in the introductory paragraph hereto.

 

Company Guaranty” means the Company Guaranty Agreement made by the Company in favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit F hereto.

 

Compliance Certificate” means a certificate substantially in the form of Exhibit D hereto.

 

Consolidated EBITDA” means, for any period, for the Company and the Subsidiaries determined on a consolidated basis, an amount equal to Consolidated Net Income for such period, plus (a) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the provision for federal, state, local and foreign income (including franchise, single business or unitary taxes that are measured by income) taxes for such period, (iii) depreciation and amortization expense deducted in determining such Consolidated Net Income and (iv) other non-recurring expenses reducing Consolidated Net Income which do not represent a cash item in such period or any future period and minus (b) the following to the extent included in calculating such Consolidated Net Income: (i) federal, state, local and foreign income tax credits of the Company and the Subsidiaries for such period and (ii) all non-cash items increasing Consolidated Net Income for such period.

 

Consolidated EBIT” means, for any period, for the Company and the Subsidiaries determined on a consolidated basis, an amount equal to Consolidated Net Income for such

 

6


period, plus (a) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the provision for federal, state, local and foreign income taxes for such period, and (iii) other non-recurring expenses reducing Consolidated Net Income which do not represent a cash item in such period or any future period and minus (b) the following to the extent included in calculating such Consolidated Net Income: (i) federal, state, local and foreign income tax credits of the Company and the Subsidiaries for such period and (ii) all non-cash items increasing Consolidated Net Income for such period.

 

Consolidated Funded Indebtedness” means, as of any date of determination, for the Company and the Subsidiaries on a consolidated basis, as of any date of determination, without duplication, the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all purchase money Indebtedness (except as provided in clause (d) below), (c) all direct obligations arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (d) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business and, except those being contested, in good faith, not past due more than 60 days after the due date with respect to such trade payable or account payable), (e) Attributable Indebtedness in respect of Capitalized Leases and Off-Balance Sheet Obligations, (f) without duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) through (e), and (g) all Indebtedness of the types referred to in clauses (a) through (f) above of any partnership or joint venture (other than a joint ven