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Exhibit 10.1
FIRST AMENDMENT TO PARTICIPATION AGREEMENT
AND RELATED DOCUMENTS
dated as of October 30, 2000
among
MINIMED DEVELOPMENT CORP.
as the Construction Agent and as the Lessee,
MINIMED INC. AND CERTAIN OF ITS SUBSIDIARIES
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, except as expressly stated
herein, but solely as the Owner Trustee
under the MiniMed Real Estate Trust 1999-1,
THE HOLDERS OF CERTIFICATES
ISSUED BY THE AFOREMENTIONED TRUST, as the Certificateholders,
THE LENDERS PARTY HERETO, as the Lenders,
THE REVOLVING CREDIT LENDERS PARTY HERETO, as the Revolving Credit Lenders,
THE BANK OF NOVA SCOTIA,
as Documentation Agent,
ING BARINGS LLC (formerly ING Baring Xxxxxx Xxxx LLC)
as Syndication Agent,
and
ING (U.S.) CAPITAL LLC,
as the Agent for the Lenders and the Revolving Credit Lenders
and as the Collateral Agent for the Owner Trustee,
the Lenders, the Revolving Credit Lenders, and the Certificateholders to
the extent of their interests
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FIRST AMENDMENT TO PARTICIPATION AGREEMENT
AND RELATED DOCUMENTS
THIS FIRST AMENDMENT TO PARTICIPATION AGREEMENT AND RELATED DOCUMENTS (the
"Amendment"), dated as of October 30, 2000, among MINIMED DEVELOPMENT CORP., a
Delaware corporation (the "Lessee" or the "Construction Agent"); the various
parties hereto as guarantors (individually, a "Guarantor" and collectively, the
"Guarantors"); FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association, not individually (in its individual capacity, the "Trust Company"),
but solely as the Owner Trustee under the MiniMed Real Estate Trust 1999-1 (in
such capacity the "Owner Trustee" or the "Lessor"); the various parties hereto
as holders of certificates issued by the Owner Trustee with respect to the
MiniMed Real Estate Trust 1999-1 (individually, a "Certificateholder" and
collectively, the "Certificateholders"); the various parties hereto as Lenders
(individually, a "Lender" and collectively, the "Lenders"); the various parties
hereto as Revolving Credit Lenders (individually a "Revolving Credit Lender" and
collectively the "Revolving Credit Lenders"), ING BARING LLC (formerly ING
Baring Xxxxxx Xxxx LLC), a Delaware limited liability company, as syndication
agent (the "Syndication Agent"), and ING (U.S.) CAPITAL LLC, a Delaware limited
liability company, as the agent for the Lenders and the Revolving Credit Lenders
(in such capacities, the "Agent") and as the collateral agent for the Owner
Trustee, Lenders, Revolving Credit Lenders and Certificateholders, to the extent
of their interests (in such capacity, the "Collateral Agent").
W I T N E S S E T H:
RECITALS:
A. The Lessee, Construction Agent, Guarantors, Trust Company, Owner
Trustee, Lessor, Certificateholders, Lenders, Revolving Credit Lenders,
Syndication Agent, Agent and the Collateral Agent have entered into a
Participation Agreement dated as of May 18, 1999 (as heretofore amended,
restated, modified or otherwise supplemented, the "Participation Agreement").
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in Appendix A to the Participation Agreement.
B. The Lessee, Construction Agent and Guarantors desire to amend the
Participation Agreement and those Related Documents necessary to (i) increase
the Total Funding Commitments, and (ii) permit specified additional capital
expenditures in accordance with the terms herein set forth, and the Trust
Company, Owner Trustee, Lessor, Certificateholders, Lenders, Revolving Lenders,
Syndication Agent, Agent and Collateral Agent have agreed to so amend the
Participation Agreement and such Related Documents on the terms and conditions
set forth herein.
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NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendments to the Participation Agreement.
A. Appendix A to the Participation Agreement is hereby amended by replacing
the definitions of "Certificateholder Commitment", "Consolidated Capital
Expenditures", "Construction Period Termination Date", "Rent Commencement Date",
"Total Certificateholder Commitment", "Total Lender Commitment", "Total Tranche
A Commitment" and "Total Tranche B Commitment" with the following:
"Certificateholder Commitment" shall mean, as to each
Certificateholder, the obligation of such Certificateholder to make
Certificateholder Advances pursuant to Section 3.01 of the Trust Agreement,
in an aggregate amount up to the amount set forth opposite such
Certificateholder's name on Schedule I of the Trust Agreement under the
caption "Certificateholder Commitment" or in an assignment agreement
executed and delivered by such Certificateholder pursuant to Section 11.08
of the Trust Agreement (as the same may be reduced or increased pursuant to
Section 3.05B of the Trust Agreement).
"Consolidated Capital Expenditures" shall mean, for any period,
without duplication, the sum of (a) the gross dollar amount of additions
during such period to property, plant, equipment and other fixed assets of
MiniMed and its Subsidiaries, including those additions made in the
ordinary course of business, plus (b) the aggregate amount of Capitalized
Lease Obligations incurred during such period by MiniMed and its
Subsidiaries, provided, however, that for purposes of calculating
Consolidated Capital Expenditures for any period, Consolidated Capital
Expenditures shall exclude Expansion Capital Expenditures.
"Construction Period Termination Date" shall mean March 31, 2001.
"Rent Commencement Date" shall mean the earlier of (a) Completion
Date, or (b) March 31, 2001.
"Total Certificateholder Commitment" shall mean, at any time, an
amount equal to the aggregate amount of Certificateholder Commitments at
such time. The Total Certificateholder Commitment is subject to reduction
and increase pursuant to Section 3.05B of the Trust Agreement. As of the
First Amendment Effective Date, the Total Certificateholder Commitment is
$2,400,000.
"Total Lender Commitment" shall mean, at any time an amount equal to
the aggregate amount of Tranche A Commitments and Tranche B Commitments of
all Lenders at such time. The Total Lender Commitment is subject to
reduction
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and to increase pursuant to the Credit Agreement. As of the First Amendment
Effective Date, the Total Lender Commitment is $77,600,000.
"Total Tranche A Commitment" shall mean, at any time, an amount equal
to the aggregate amount of the Tranche A Commitments of all of the Tranche
A Lenders at such time. The Total Tranche A Commitment is subject to
reduction pursuant to Sections 4.05(a) and 9.02 of the Credit Agreement and
to increase pursuant to Section 4.05(b) of the Credit Agreement. As of the
First Amendment Effective Date, the Total Tranche A Commitment is
$65,600,000.
"Total Tranche B Commitment" shall mean, at any time, an amount equal
to the aggregate amount of the Tranche B Commitments of all of the Tranche
B Lenders at such time. The Total Tranche B Commitment is subject to
reduction pursuant to Sections 4.05(a) and 9.02 of the Credit Agreement and
to increase pursuant to Section 4.05(b) of the Credit Agreement. As of the
First Amendment Effective Date, the Total Tranche B Commitment is
$12,000,000.
B. Appendix A to the Participation Agreement is hereby amended by inserting
in alphabetical order the following new definitions:
"Expansion Capital Expenditures" shall mean any Consolidated Capital
Expenditures made during the Expansion Period and described on Schedule 2
to the Participation Agreement in an aggregate amount in any Fiscal Quarter
not exceeding the respective "Total" amount for such Fiscal Quarter set
forth on Schedule 2 to the Participation Agreement; provided however that
the amount of Expansion Capital Expenditures permitted in any Fiscal
Quarter during the Expansion Period in excess of Expansion Capital
Expenditures made during such Fiscal Quarter shall be added to the amount
of Expansion Capital Expenditures permitted to be made in any immediately
succeeding Fiscal Quarter during the Expansion Period. For the avoidance of
doubt, Consolidated Capital Expenditures made for any of the purposes
(i.e., line items) described on Schedule 2 to the Participation Agreement
up to the "Total" amount for any Fiscal Quarter shall constitute Expansion
Capital Expenditures notwithstanding that the aggregate amount of such
Consolidated Capital Expenditures for any specified purpose (i.e., line
item) exceeds the amount set forth on Schedule 2 to the Participation
Agreement for such purpose (i.e., line item).
"Expansion Period" shall mean the period commencing on the first day
of the third Fiscal Quarter of the 2000 Fiscal Year and ending on the last
day of the 2001 Fiscal Year.
"First Amendment" shall mean First Amendment to Participation
Agreement and Related Documents, dated as of October 30, 2000, among the
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Lessee, the Construction Agent, the Guarantors, the Trust Company, the
Owner Trustee and Lessor, the Certificateholders, the Lenders, the
Revolving Credit Lenders, the Syndication Agent, the Agent and the
Collateral Agent.
"First Amendment Effective Date" shall mean the "Amendment Effective
Date" as such term is defined in Section 6 of the First Amendment.
"First Amendment Fee Letter" shall mean the letter agreement, dated as
of October 30, 2000, among the Lessee, the Parent Guarantor and the
Collateral Agent.
C. The Participation Agreement is hereby amended (i) by replacing Schedule
1 thereto in its entirety with Schedule 1 attached to this Amendment, (ii) by
inserting Schedule 2 attached to this Amendment as Schedule 2 to the
Participation Agreement, and (iii) by replacing Exhibit I to the Participation
Agreement in its entirety with Exhibit I attached to this Amendment.
SECTION 2. Amendment to the Trust Agreement. The Trust Agreement is hereby
amended by replacing Schedule I thereto in its entirety with Schedule I attached
to this Amendment.
SECTION 3. Amendment to the Credit Agreement. The Credit Agreement is
hereby amended by replacing the Tranche A Commitment, Tranche A Commitment
Percentage, Tranche B Commitment and Tranche B Commitment Percentage of each
Lender listed on the signature pages thereto with the respective Tranche A
Commitment, Tranche A Commitment Percentage, Tranche B Commitment and Tranche B
Commitment Percentage of such Lender listed on the signature pages to this
Amendment.
SECTION 4. Continuing Effectiveness of Participation Agreement and other
Related Documents. The Participation Agreement and each of the other Related
Documents shall remain in full force and effect in accordance with their
respective terms, except as expressly amended or modified by this Amendment.
Without limitation to the foregoing, (i) the Parent Guarantor hereby consents to
the terms and provisions set forth in this Amendment and agrees and reaffirms
that the Parent Guaranty will continue in full force and effect in accordance
with its terms, except as expressly amended by this Amendment, (ii) each of the
Subsidiary Guarantors consents to the terms and provisions set forth in this
Amendment and agrees and reaffirms that the Subsidiary Guaranty will continue in
full force and effect in accordance with its terms, except as expressly amended
by this Amendment, (iii) the Lessee hereby consents to the terms and provisions
set forth in this Amendment and agrees and reaffirms that the Master Lease will
continue in full force and effect in accordance with its terms, except as
expressly amended by this Amendment, and (iv) each of the parties to this
Amendment acknowledges and agrees that, upon effectiveness of this Amendment and
from and after the date thereof, each reference in any Related Document to the
Participation Agreement (or Appendix A thereto), the Trust Agreement, the Credit
Agreement, the Revolving Credit Agreement, the Master Lease and each other
Related
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Document shall mean and be a reference to the Participation Agreement (or
Appendix A thereto), the Trust Agreement, the Credit Agreement, the Master Lease
and each such other Related Document, in each case as amended by this Amendment.
SECTION 5. Cost and Expenses. The Construction Agent, Lessee, Parent
Guarantor and Subsidiary Guarantors each agree to pay all out-of-pocket expenses
of the Collateral Agent for the negotiation, preparation, execution and delivery
of this Amendment and all documents executed in connection therewith (including
fees and expenses of counsel to the Collateral Agent).
SECTION 6. Conditions Precedent to Effectiveness. This Amendment shall
become effective upon the satisfaction of each of the conditions precedent set
forth in this Section 6 (the date on which such conditions are satisfied shall
be the "Amendment Effective Date"):
A. The Collateral Agent shall have received, in form and substance
acceptable to the Collateral Agent, an original counterpart of this Amendment
duly executed and delivered by each of the parties hereto;
B. The Collateral Agent shall have received, in form and substance
acceptable to the Collateral Agent, new Notes and Certificates, in each case
duly executed and delivered by the Trustee and reflecting the Tranche A
Commitment, Tranche B Commitment and Certificateholder Commitment of each Lender
and Certificateholder, as modified by this Amendment;
C. The Collateral Agent shall have received, in form and substance
acceptable to the Collateral Agent, (i) such amendments to the Security
Documents, including, without limitation, the Deed of Trust, (ii) such
endorsements to leasehold title and mortgagee title insurance policies delivered
pursuant to Section 5.3 of the Participation Agreement or otherwise on the
Effective Date as the Collateral Agent shall reasonably require in connection
with the modification of the Commitments and Commitment Percentages of the
Lenders and the Certificateholders pursuant to this Amendment and (iii) the
Lessee and the Parent Guarantor shall have paid all taxes, fees and other
charges in connection with the execution, delivery, recording, filing and
registration or any and all such amendments to the satisfaction of the
Collateral Agent;
D. The Collateral Agent shall have received in form and substance
acceptable to the Collateral Agent, a duly executed counterpart of the First
Amendment Fee Letter, and the Lessee shall have paid or caused to be paid to the
Collateral Agent, for the account of the Lenders and Certificateholders, all
fees payable thereunder on the Amendment Effective Date;
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E. Each of the representations and warranties set forth in the
Participation Agreement and in each of the other Related Documents and each
certificate delivered pursuant to any Related Document (including without
limitation the Incorporated Representations and Warranties) shall be true and
correct on and as of the Effective Date;
F. The Collateral Agent shall have received (i) a certificate of the
Secretary, an Assistant Secretary, Trust Officer or Vice President of the Trust
Company in such other form as is acceptable to the Collateral Agent, attaching
and certifying as to (A) the signing resolutions duly authorizing the execution,
delivery and performance by the Lessor of each of the Related Documents to which
it is or will be a party, (B) its articles of association or other equivalent
charter documents and its by-laws, as the case may be, certified as of a recent
date by an appropriate officer of the Trust Company and (C) the incumbency and
signature of persons authorized to execute and deliver on its behalf the Related
Documents to which it is a party and (ii) a good standing certificate from the
Office of the Comptroller of the Currency;
G. The Collateral Agent shall have received (i) a certificate from the
Secretary of State of the state of incorporation of each of the Guarantor
certifying that such Guarantor is in good standing in such state and
certificates from the Secretary of State of each state in which a Guarantor is
required to be in good standing, certifying that such Guarantor is authorized to
do business in such state; and (ii) a certificate from the Secretary or an
Assistant Secretary of each Guarantor certifying (A) as to the incumbency and
signature of the officer of such Guarantor authorized to execute and deliver the
Related Documents to which such Guarantor is a party and any certificate to be
furnished thereto, (B) that attached thereto are true and complete of the
charter and by-laws of such Guarantor and (C) that attached thereto is a true
and complete copy of the Resolutions of the Board of Directors of such Guarantor
authorizing the execution, delivery and performance of the Related Documents to
which such Guarantor is a party and the transactions contemplated thereby,
together with a certification by another officer of such Guarantor as to the
incumbency and signature of such Secretary or Assistant Secretary;
H. The Collateral Agent shall have received legal opinions, in form and
substance acceptable to the Collateral Agent and addressing such matters
relating to this Amendment as the Collateral Agent shall reasonably request,
addressed to the Collateral Agent, the Agent, the Lenders, the
Certificateholders and the Revolving Credit Lenders from (i) Xxxxxxx Xxxxxxx &
Xxxxxxxx LLP, California and New York counsel for Lessee, Construction Agent and
each Guarantor, and (ii) Xxxx Xxxxxx, Esq., General Counsel to the Lessee,
Construction Agent and each Guarantor;
I. The Collateral Agent shall have received such other documents (certified
if requested) as the Collateral Agent may reasonably request, with respect to
this Amendment, the Participation Agreement, any other Related Document, the
transactions contemplated hereby and thereby; and
J. There shall not have occurred and be continuing any Potential Default or
Event of
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Default under any of the Related Documents, and no Potential Default or Event of
Default under any of the Related Documents will have occurred after giving
effect to the Funding requested by such Requisition.
SECTION 7. Headings. The various headings of this Amendment are inserted
for convenience only and shall not affect the meaning or interpretation of this
Amendment or any provision hereof.
SECTION 8. Counterparts. This Amendment may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
SECTION 9. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 10. Successors and Assigns. This Amendment shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that the Borrower may not assign or
transfer its rights or obligations hereunder or under the Credit Agreement
except in accordance with the terms of the Credit Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
ING (U.S.) CAPITAL LLC, as
Collateral Agent, Agent,
Revolving Credit Lender, Lender
and Certificateholder
Tranche A Commitment: 11,689,565
Tranche A Commitment Percentage: 17.82%
Tranche B Commitment: 2,182,698
Tranche B Commitment Percentage: 18.19% By: /s/ XXXX X. XXXXXXX
Certificateholder Commitment: 1,122,319 ----------------------------
Certificateholder Commitment Percentage: 46.76% Name: Xxxx X. Xxxxxxx
Title: Vice President
CIBC INC., as Lender
Tranche A Commitment: 3,331,250
Tranche A Commitment Percentage: 5.08%
Tranche B Commitment: 609,375
Tranche B Commitment Percentage: 5.08% By: /s/ XXXXXXX XXXXX
Certificateholder Commitment: $0 ----------------------------
Certificateholder Commitment Percentage: 0% Name: Xxxxxxx Xxxxx
Title: Executive Director
THE BANK OF NOVA SCOTIA,
as Lender
Tranche A Commitment: 12,174,598
Tranche A Commitment Percentage: 18.56%
Tranche B Commitment: 2,182,698
Tranche B Commitment Percentage: 18.19% By: /s/ X. X. XXXXXXXX
Certificateholder Commitment: $0 ----------------------------
Certificateholder Commitment Percentage: 0% Name: X. X. Xxxxxxxx
Title: Director
XXXXXXX XXXXX BUSINESS
FINANCIAL SERVICES INC., as
Lender and Certificateholder
Tranche A Commitment: 6,834,588
Tranche A Commitment Percentage: 10.42%
Tranche B Commitment: 1,250,230
Tranche B Commitment Percentage: 10.42% By: /s/ XXXXXX X. XXXXX
Certificateholder Commitment: $274,557 ----------------------------
Certificateholder Commitment Percentage: 11.44% Name: Xxxxxx X. Xxxxx
Title: Vice President
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COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH, as
Lender
Tranche A Commitment: 8,744,531
Tranche A Commitment Percentage: 13.33%
Tranche B Commitment: 1,599,609
Tranche B Commitment Percentage: 13.33% By: /s/ XXX XXXXX
Certificateholder Commitment: $0 ----------------------------
Certificateholder Commitment Percentage: 0% Name: Xxx Xxxxx
Title: Senior Vice President
By: /s/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: Vice President
SANWA BANK CALIFORNIA, as Lender
and Certificateholder
Tranche A Commitment: 5,829,687
Tranche A Commitment Percentage: 8.89%
Tranche B Commitment: 1,066,406
Tranche B Commitment Percentage: 8.89% By: /s/ XXXXX XXXXXXXXXXXX
Certificateholder Commitment: $213,281 ----------------------------
Certificateholder Commitment Percentage: 8.89% Name: Xxxxx Xxxxxxxxxxxx
Title: Vice President
COMERICA WEST INCORPORATED,
as Lender
Tranche A Commitment: 5,791,250
Tranche A Commitment Percentage: 8.83%
Tranche B Commitment: 1,059,375
Tranche B Commitment Percentage: 8.83% By: /s/ XXXXXXXX X. XXXXXXXXXX
Certificateholder Commitment: $0 ----------------------------
Certificateholder Commitment Percentage: 0% Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Vice President
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CITY NATIONAL BANK, as Lender
Tranche A Commitment: 11,204,531
Tranche A Commitment Percentage: 17.08%
Tranche B Commitment: 2,049,609
Tranche B Commitment Percentage: 17.08% By: /s/ XXXXXX X. XXXXXXX
Certificateholder Commitment: $469,921 ----------------------------
Certificateholder Commitment Percentage: 19.58% Name: Xxxxxx X. Xxxxxxx
Title: Vice President
SCOTIABANC, INC.,
as Certificateholder
Tranche A Commitment: $0
Tranche A Commitment Percentage: 0%
Tranche B Commitment: $0
Tranche B Commitment Percentage: 0% By: /s/ X. X. XXXXX
Certificateholder Commitment: $319,922 ----------------------------
Certificateholder Commitment Percentage: 13.33% Name: X. X. Xxxxx
Title: Managing Director
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MINIMED INC, as the Parent Guarantor and as
Borrower under the Revolving Credit Agreement
By: /s/ XXXXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: President
MINIMED DEVELOPMENT CORP., as the Construction
Agent and as the Lessee
By: /s/ XXXXXXXX X. XXXXX
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Name: Xxxxxxxx X. Xxxxx
Title: President
EACH OF THE SUBSIDIARIES OF THE
PARENT GUARANTOR LISTED ON
SCHEDULE 1 HERETO, as the Subsidiary
Guarantors
By: /s/ XXXXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: President
