EXHIBIT 10.27
EXECUTION COPY
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$50,000,000 SENIOR REVOLVING CREDIT AGREEMENT
Dated as of September 26, 2006
Among
▇▇▇▇▇ RESPIRATORY THERAPEUTICS, INC.
as Borrower,
THE INITIAL LENDERS AND INITIAL ISSUING BANK NAMED HEREIN
as Initial Lenders and Initial Issuing Bank,
ROYAL BANK OF CANADA,
as Administrative Agent, Collateral Agent
and Syndication Agent,
and
WACHOVIA BANK, N.A.,
as Documentation Agent
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RBC CAPITAL MARKETS*
as Sole Lead Arranger and Bookrunner
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* RBC Capital Markets is a marketing name for the investment banking
activities of Royal Bank of Canada.
TABLE OF CONTENTS
SECTION PAGE
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms...................................... 1
SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions................................................. 24
SECTION 1.03. Accounting Terms........................................... 24
SECTION 1.04. Currency Equivalents Generally............................. 24
SECTION 1.05. Pro Forma Calculations..................................... 24
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit..................... 24
SECTION 2.02. Making the Advances........................................ 26
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of
Credit..................................................... 28
SECTION 2.04. Repayment of Advances...................................... 29
SECTION 2.05. Termination or Reduction of the Commitments................ 30
SECTION 2.06. Prepayments................................................ 31
SECTION 2.07. Interest................................................... 32
SECTION 2.08. Fees....................................................... 32
SECTION 2.09. Conversion of Advances..................................... 33
SECTION 2.10. Increased Costs, Etc....................................... 34
SECTION 2.11. Payments and Computations.................................. 35
SECTION 2.12. Taxes...................................................... 38
SECTION 2.13. Sharing of Payments, Etc................................... 40
SECTION 2.14. Use of Proceeds............................................ 40
SECTION 2.15. Defaulting Lenders......................................... 40
SECTION 2.16. Evidence of Debt........................................... 43
SECTION 2.17. Increase in Revolving Credit Facility...................... 43
ARTICLE III CONDITIONS OF LENDING AND ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of Credit........ 44
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance........ 47
SECTION 3.03. Determinations Under Section 3.01.......................... 47
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Loan Parties......... 48
ARTICLE V COVENANTS OF THE LOAN PARTIES
SECTION 5.01. Affirmative Covenants...................................... 52
SECTION 5.02. Negative Covenants......................................... 56
SECTION 5.03. Reporting Requirements..................................... 65
SECTION 5.04. Financial Covenants........................................ 68
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ARTICLE VI EVENTS OF DEFAULT
SECTION 6.01. Events of Default.......................................... 68
SECTION 6.02. Actions in Respect of the Letters of Credit upon an Event
of Default................................................. 70
ARTICLE VII THE AGENTS
SECTION 7.01. Authorization and Action................................... 71
SECTION 7.02. Agents' Reliance, Etc...................................... 72
SECTION 7.03. Royal Bank and Affiliates.................................. 72
SECTION 7.04. Lender Party Credit Decision............................... 73
SECTION 7.05. Indemnification............................................ 73
SECTION 7.06. Successor Agents........................................... 74
SECTION 7.07. Other Agents; Arrangers and Managers....................... 75
ARTICLE VIII SUBSIDIARY GUARANTY
SECTION 8.01. Subsidiary Guaranty; Limitation of Liability............... 75
SECTION 8.02. Subsidiary Guaranty Absolute............................... 76
SECTION 8.03. Waivers and Acknowledgments................................ 77
SECTION 8.04. Subrogation................................................ 77
SECTION 8.05. Subsidiary Guaranty Supplements............................ 78
SECTION 8.06. Subordination.............................................. 78
SECTION 8.07. Continuing Subsidiary Guaranty; Assignments................ 79
ARTICLE IX MISCELLANEOUS
SECTION 9.01. Amendments, Etc............................................ 80
SECTION 9.02. Notices, Etc............................................... 81
SECTION 9.03. No Waiver; Remedies........................................ 82
SECTION 9.04. Costs and Expenses......................................... 82
SECTION 9.05. Right of Set-off........................................... 84
SECTION 9.06. Binding Effect............................................. 84
SECTION 9.07. Assignments and Participations............................. 84
SECTION 9.08. Execution in Counterparts.................................. 87
SECTION 9.09. No Liability of the Issuing Bank........................... 87
SECTION 9.10. Non-Consenting Lenders..................................... 88
SECTION 9.11. Confidentiality............................................ 88
SECTION 9.12. Release of Collateral...................................... 88
SECTION 9.13. Patriot Act Notice......................................... 89
SECTION 9.14. Jurisdiction, Etc.......................................... 89
SECTION 9.15. Governing Law.............................................. 89
SECTION 9.16. Waiver of Jury Trial....................................... 89
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SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Subsidiary Guarantors
Schedule III Existing IP Challenges
Schedule 2.01(b) Letters of Credit
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices and Filings
Schedule 4.01(o) - Plans, Multiemployer Plans and Welfare Plans
Schedule 4.01(p) - Environmental Disclosure
Schedule 4.01(r) - Existing Debt
Schedule 4.01(s) - Surviving Debt
Schedule 4.01(t) - Liens
Schedule 4.01(u) - Intellectual Property
Schedule 5.01(i) - Transactions with Affiliates
Schedule 5.01(k) - Post-Closing Matters
EXHIBITS
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Security Agreement Supplement
Exhibit E - Form of Subsidiary Guaranty Supplement
Exhibit F - Form of Solvency Certificate
Exhibit G - Form of Opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Loan Parties
Exhibit H - Form of Compliance Certificate
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SENIOR REVOLVING CREDIT AGREEMENT
SENIOR REVOLVING CREDIT AGREEMENT dated as of September 26, 2006 (this
"AGREEMENT") among ▇▇▇▇▇ RESPIRATORY THERAPEUTICS, INC., a Delaware corporation
(the "BORROWER"), the Subsidiary Guarantors (as hereinafter defined), the
Initial Lenders (as hereinafter defined), the Issuing Bank (as hereinafter
defined), ROYAL BANK OF CANADA ("ROYAL BANK"), as collateral agent (together
with any successor collateral agent appointed pursuant to Article VII, the
"COLLATERAL AGENT") for the Secured Parties (as hereinafter defined), Royal
Bank, as administrative agent (together with any successor administrative agent
appointed pursuant to Article VII, the "ADMINISTRATIVE AGENT") for the Lender
Parties (as hereinafter defined) (together with the Collateral Agent,
collectively, the "AGENTS"), and WACHOVIA BANK, N.A., as Documentation Agent.
PRELIMINARY STATEMENTS:
(1) The Borrower has requested that the Lender Parties (a) lend to the
Borrower $50,000,000 under the Revolving Credit Facility provided for in this
Agreement and (b) from time to time, lend to the Borrower and issue Letters of
Credit for the account of the Borrower pursuant to the Revolving Credit Facility
and Swingline Facility provided for in this Agreement and in accordance with the
terms of this Agreement. The Lender Parties have indicated their willingness to
agree to lend such amounts and provide such Letters of Credit, but only on the
terms and conditions of this Agreement, including the granting of security
interests in the Collateral pursuant to the Collateral Documents and the making
of the guarantees pursuant to Article VIII hereof.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"ADMINISTRATIVE AGENT" has the meaning specified in the recital of
parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative Agent specified by the Administrative Agent in writing to
the Lender Parties from time to time.
"ADVANCE" means a Revolving Credit Advance, a Letter of Credit Advance
or a Swingline Advance.
"AFFILIATE" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling,"
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 10% or more of the
Voting Interests of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Interests, by contract or otherwise.
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"AGENTS" has the meaning specified in the recital of parties to this
Agreement.
"AGREEMENT VALUE" means, for each Hedge Agreement, on any date of
determination, an amount equal to: (a) in the case of a Hedge Agreement
documented pursuant to the Master Agreement (Multicurrency-Cross Border)
published by the International Swap and Derivatives Association, Inc. (the
"MASTER AGREEMENT"), the amount, if any, that would be payable by any Loan
Party or any of its Subsidiaries to its counterparty to such Hedge
Agreement, as if (i) such Hedge Agreement was being terminated early on
such date of determination and (ii) such Loan Party or Subsidiary was the
sole "Affected Party"; (b) in the case of a Hedge Agreement traded on an
exchange, the ▇▇▇▇-to-market value of such Hedge Agreement, which will be
the unrealized loss on such Hedge Agreement to the Loan Party or Subsidiary
of a Loan Party party to such Hedge Agreement based on the settlement price
of such Hedge Agreement on such date of determination; or (c) in all other
cases, the ▇▇▇▇-to-market value of such Hedge Agreement, which will be the
unrealized loss on such Hedge Agreement to the Loan Party or Subsidiary of
a Loan Party to such Hedge Agreement as the amount, if any, by which (i)
the present value of the future cash flows to be paid by such Loan Party or
Subsidiary exceeds (ii) the present value of the future cash flows to be
received by such Loan Party or Subsidiary pursuant to such Hedge Agreement;
capitalized terms used and not otherwise defined in this definition shall
have the respective meanings set forth in the above described Master
Agreement.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender Party,
such Lender Party's Domestic Lending Office in the case of a Base Rate
Advance and such Lender Party's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance.
"APPLICABLE MARGIN" means (a) with respect to Revolving Credit
Facility Advances, for any day with respect to any Eurodollar Advance and
any Base Rate Advance, the amount per annum set forth below under the
caption "Eurodollar Rate Margin" or "Base Rate Margin", as applicable, (b)
with respect to Swingline Facility Advances, the rate per annum set forth
below under the caption "Base Rate Margin" and (c) with respect to the
Commitment Fee payable under Section 2.08, the amount per annum set forth
below under the caption "Commitment Fee Rate", in each case based upon the
Leverage Ratio for the most recently-ended four fiscal quarters determined
on the last day of the immediately preceding fiscal quarter; provided that,
if the Borrower fails to deliver the financial statements required to be
delivered pursuant to Sections 5.03(b), (c) and (d) within the times
specified therein, the Applicable Margin set forth in category VI below for
each applicable rate shall apply to all Revolving Credit Facility Advances,
commencing on the initial date of such Default and ending on the third
business day following delivery of such financial statements.
COMMITMENT EURODOLLAR RATE
FEE RATE MARGIN BASE RATE MARGIN
MAXIMUM LEVERAGE RATIO PER ANNUM PER ANNUM PER ANNUM
---------------------- ---------- --------------- ----------------
I. < or = 1.00x 0.20% 0.75% 0.0%
II. > 1.00x < or = 1.50x 0.25% 1.00% 0.0%
III. > 1.50x < or = 2.00x 0.25% 1.25% 0.25%
IV. > 2.00x < or = 2.50x 0.30% 1.50% 0.50%
V. > 2.50x < or = 3.00x 0.35% 1.75% 0.75%
VI. > 3.00x 0.40% 2.00% 1.00%
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The Applicable Margin and Commitment Fee during the period from the
Effective Date until the delivery by the Borrower of the quarterly
compliance certificate for the first fiscal quarter ending after the
Effective Date shall be as set forth above for Level I.
"APPLICABLE RESERVE REQUIREMENT" means, at any time, for any
Eurodollar Rate Advance, the maximum rate, expressed as a decimal, at which
reserves (including, without limitation, any basic marginal, special,
supplemental, emergency or other reserves) are required to be maintained
with respect thereto against "Eurocurrency liabilities" (as such term is
defined in Regulation D of the Board of Governors of the Federal Reserve
System) under regulations issued from time to time by the Board of
Governors of the Federal Reserve System or other applicable banking
regulator. Without limiting the effect of the foregoing, the Applicable
Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks under regulations issued from time to time
by the Board of Governors of the Federal Reserve System or other applicable
banking regulator with respect to (i) any category of liabilities which
includes deposits by reference to which the applicable Eurodollar Rate or
any other interest rate of an Advance is to be determined, or (ii) any
category of extensions of credit or other assets which include Eurodollar
Rate Advances. A Eurodollar Rate Advance shall be deemed to constitute
Eurocurrency liabilities and as such shall be deemed subject to reserve
requirements without benefits of credit for proration, exceptions or
offsets that may be available from time to time to the applicable Lender.
The rate of interest on Eurodollar Rate Advances shall be adjusted
automatically on and as of the effective date of any change in the
Applicable Reserve Requirement.
"APPROPRIATE LENDER" means, at any time, with respect to (a) the
Revolving Credit Facility, a Lender that has a Commitment with respect to
such Facility at such time, (b) the Letter of Credit Facility, (i) the
Issuing Bank and (ii) if the other Revolving Credit Lenders have made
Letter of Credit Advances pursuant to Section 2.03(c) that are outstanding
at such time, each such other Revolving Credit Lender, and (c) the
Swingline Facility, (i) the Swingline Bank and (ii) if the other Revolving
Credit Lenders have made Swingline Advances pursuant to Section 2.02(c)
that are outstanding at such time, each such Revolving Credit Lender.
"APPROVED FUND" means any Fund that is administered or managed by (a)
a Lender Party, (b) an Affiliate of a Lender Party or (c) an entity or an
Affiliate of an entity that administers or manages a Lender Party.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender Party and an Eligible Assignee (with the consent of any
party whose consent is required by Section 9.07 or the definition of
"ELIGIBLE ASSIGNEE"), and accepted by the Administrative Agent, in
accordance with Section 9.07 and in substantially the form of Exhibit C
hereto or any other form approved by the Administrative Agent.
"AVAILABLE AMOUNT" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"BANKRUPTCY LAW" means Title 11, U.S. Code, or any similar foreign,
federal or state law for the relief of debtors.
"BASE RATE" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
higher of:
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(a) the rate of interest established by Royal Bank, from time to time,
as its "prime rate" in U. S. Dollars; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"BASE RATE ADVANCE" means an Advance that bears interest as provided
in Section 2.07(a)(i).
"BORROWER" has the meaning specified in the recital of parties to this
Agreement.
"BORROWER'S ACCOUNT" means the account of the Borrower specified by
the Borrower in writing to the Administrative Agent from time to time.
"BORROWING" means a Revolving Credit Borrowing or a Swingline
Borrowing.
"BRIDGE LOAN AGREEMENT" means the Loan Agreement, dated as of July 11,
2006, by and between the Borrower and Royal Bank, as Lender.
"BRIDGE LOAN DOCUMENTS" means the Bridge Loan Agreement, the Security
Agreement and any related documents and instruments.
"BUSINESS DAY" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are
carried on in the London interbank market.
"CAPITAL EXPENDITURES" means, for any Person for any period, the sum
of, without duplication, (a) all cash expenditures made, directly or
indirectly, by such Person or any of its Subsidiaries during such period
for equipment, fixed assets, real property or improvements, or for
replacements or substitutions therefor or additions thereto (excluding
normal replacements and maintenance which are properly charged to current
operations as operating expenses in accordance with GAAP), that have been
or should be, in accordance with GAAP, reflected as additions to property,
plant or equipment on a Consolidated balance sheet of such Person or have a
useful life of more than one year plus (b) the aggregate principal amount
of all Debt (including Obligations under Capitalized Leases) assumed or
incurred to finance any such expenditures (as determined at the time such
Debt is incurred). For purposes of this definition, (i) the purchase price
of equipment that is purchased simultaneously with the trade in of existing
equipment or with condemnation proceeds or insurance proceeds shall be
included in Capital Expenditures only to the extent of the gross amount of
such purchase price less the credit granted by the seller of such equipment
for the equipment being traded in at such time or the amount of such
condemnation proceeds or insurance proceeds, as the case may be and (ii)
acquisitions of fixed assets, equipment and real property and improvements
pursuant to an acquisition permitted by Section 5.02(f)(vii) shall not
constitute "Capital Expenditures".
"CAPITALIZED LEASES" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"CARDINAL ACQUISITION" means the acquisition by ▇▇▇▇▇ Respiratory
Operations, Inc., a wholly-owned subsidiary of the Borrower, of certain
assets of Cardinal Health PTS, LLC pursuant to that certain Asset Purchase
agreement dated as of July 27, 2006, between ▇▇▇▇▇ Respiratory Operations,
Inc. and Cardinal Health PTS, LLC, as the same may be amended, supplemented
or modified from time to time.
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"CARRYOVER AMOUNT" has the meaning specified in Section 5.02(o).
"CASH EQUIVALENTS" means any of the following, to the extent owned by
the Borrower or any of its Subsidiaries free and clear of all Liens other
than Liens created under the Collateral Documents and having a maturity of
not greater than 360 days from the date of acquisition thereof: (a) readily
marketable direct obligations of the Government of the United States or any
agency or instrumentality thereof or obligations unconditionally guaranteed
by the full faith and credit of the Government of the United States, (b)
insured certificates of deposit of or time deposits with any commercial
bank that is a Lender Party or a member of the Federal Reserve System,
issues (or the Borrower of which issues) commercial paper rated as
described in clause (c) below, is organized under the laws of the United
States or any State thereof and has combined capital and surplus of at
least $1 billion or (c) commercial paper in an aggregate amount of no more
than $1,000,000 per issuer outstanding at any time, issued by any
corporation organized under the laws of any State of the United States and
rated at least "Prime-1" (or the then equivalent grade) by ▇▇▇▇▇'▇ or "A-1"
(or the then equivalent grade) by S&P or (d) Investments, classified in
accordance with GAAP as Current Assets of the Borrower or any of its
Subsidiaries, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by
financial institutions that have the highest rating obtainable from either
▇▇▇▇▇'▇ or S&P, and the portfolios of which are limited solely to
Investments of the character, quality and maturity described in clauses
(a), (b) and (c) of this definition.
"CHANGE OF CONTROL" means the occurrence of any of the following: (a)
any Person or two or more Persons, other than the Excluded Holders,
individually or acting in concert shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934), directly or indirectly, of
Voting Interests of the Borrower (or other securities convertible into such
Voting Interests) representing 35% or more of the combined voting power of
all Voting Interests of the Borrower; (b) during any period of up to 24
consecutive months, commencing after the date of this Agreement, Continuing
Directors shall cease for any reason to constitute a majority of the board
of directors of the Borrower; (c) any Person or two or more Persons acting
in concert shall have acquired by contract or otherwise the power to
exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower; or (d) the Borrower shall cease to
own, directly or indirectly, 100% of the Equity Interests of any of its
Subsidiaries except as the result of a transaction permitted by the Loan
Documents.
"COLLATERAL" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to
any Lien in favor of the Collateral Agent for the benefit of the Secured
Parties.
"COLLATERAL ACCOUNT" has the meaning specified in the Security
Agreement.
"COLLATERAL AGENT" has the meaning specified in the recital of parties
to this Agreement.
"COLLATERAL AGENT'S OFFICE" means, with respect to the Collateral
Agent or any successor Collateral Agent, the office of such Agent as such
Agent may from time to time specify to the Borrower and the Administrative
Agent.
"COLLATERAL DOCUMENTS" means the Security Agreement, each of the
collateral documents, instruments and agreements delivered pursuant to
Section 5.01(j), and each other
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agreement that creates or purports to create a Lien in favor of the
Collateral Agent for the benefit of the Secured Parties.
"COMMITMENT" means a Revolving Credit Commitment, a Letter of Credit
Fronting Commitment or a Swingline Commitment.
"CONFIDENTIAL INFORMATION" means non-public information that any Loan
Party furnishes to any Agent or any Lender Party, but does not include any
such information that is or becomes generally available to the public,
other than through a breach by such Agent or Lender Party of Section 9.11,
or that is or becomes available to such Agent or such Lender Party from a
source other than the Loan Parties that is not, to the best of such Agent's
or such Lender Party's knowledge, acting in violation of a confidentiality
agreement with a Loan Party.
"CONSOLIDATED" refers to the consolidation of accounts in accordance
with GAAP.
"CONTINUING DIRECTORS" means the directors of the Borrower on the
Effective Date and each other director if, in each case, such other
director's nomination for election to the board of directors of the
Borrower is recommended by at least a majority of the then Continuing
Directors.
"CONVERSION," "CONVERT" and "CONVERTED" each refer to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section
2.09 or 2.10.
"CURRENT ASSETS" of any Person means all assets of such Person that
would, in accordance with GAAP, be classified as current assets of a
company conducting a business the same as or similar to that of such
Person, after deducting adequate reserves in each case in which a reserve
is proper in accordance with GAAP.
"DEBT" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all Obligations of such Person for
the deferred purchase price of property or services (other than trade
payables and other accrued non-debt liabilities not overdue by more than 90
days incurred in the ordinary course of such Person's business, unless the
same is subject to a good faith dispute), (c) all Obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments,
(d) all Obligations of such Person created or arising under any conditional
sale or other title retention agreement with respect to property acquired
by such Person (even though the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession or
sale of such property), (e) all Obligations of such Person as lessee under
Capitalized Leases, (f) all Obligations of such Person under acceptance,
letter of credit or similar facilities that secure Debt, (g) all
Obligations of such Person to purchase, redeem, retire, defease or
otherwise make any payment in respect of any Equity Interests in such
Person or any other Person or any warrants, rights or options to acquire
such Equity Interests, valued, in the case of redeemable preferred
interests, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends, (h) all Obligations of such
Person in respect of Hedge Agreements, valued at the Agreement Value
thereof, (i) all Guarantee Obligations and Synthetic Debt of such Person
and (j) all indebtedness and other payment obligations referred to in
clauses (a) through (i) above of another Person secured by (or for which
the holder of such Debt has an existing right, contingent or otherwise, to
be secured by) any Lien on property (including, without limitation,
accounts and contract rights) owned by such Person, even though such Person
has not assumed or become liable for the payment of such indebtedness or
other payment Obligations.
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"DEBT FOR BORROWED MONEY" of any Person means, at any date of
determination, the sum of, without duplication, (a) all items that, in
accordance with GAAP, would be classified as indebtedness on a Consolidated
balance sheet of such Person at such date, (b) Debt of the types described
in clauses (e) and (f) (including undrawn amounts in respect thereof) of
the definition of "Debt" hereunder and (c) all Synthetic Debt of such
Person at such date.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the passage of time or the
requirement that notice be given or both.
"DEFAULT INTEREST" has the meaning specified in Section 2.07(b).
"DEFAULTED ADVANCE" means, with respect to any Lender Party at any
time, any amount required to be paid by such Lender Party to any Agent or
any other Lender Party hereunder or under any other Loan Document at or
prior to such time that has not been so paid as of such time, including,
without limitation, any amount required to be paid by such Lender Party to
(a) the Swingline Bank pursuant to Section 2.02(c) to purchase a portion of
a Swingline Advance made by the Swingline Bank, (b) the Issuing Bank
pursuant to Section 2.03(c) to purchase a portion of a Letter of Credit
Advance made by the Issuing Bank, (c) the Administrative Agent pursuant to
Section 2.02(e) to reimburse the Administrative Agent for the amount of any
Advance made by the Administrative Agent for the account of such Lender
Party, (d) any other Lender Party pursuant to Section 2.13 to purchase any
participation in Advances owing to such other Lender Party and (e) any
Agent or any Issuing Bank pursuant to Section 7.05 to reimburse such Agent
or the Issuing Bank for such Lender Party's ratable share of any amount
required to be paid by the Lender Parties to such Agent or the Issuing Bank
as provided therein. In the event that a portion of a Defaulted Amount
shall be deemed paid pursuant to Section 2.15(b), the remaining portion of
such Defaulted Amount shall be considered a Defaulted Amount originally
required to be paid hereunder or under any other Loan Document on the same
date as the Defaulted Amount so deemed paid in part.
"DEFAULTED AMOUNT" means, with respect to any Lender Party at any
time, any amount required to be paid by such Lender Party to any Agent or
any other Lender Party hereunder or under any other Loan Document at or
prior to such time that has not been so paid as of such time, including,
without limitation, any amount required to be paid by such Lender Party to
(a) the Issuing Bank pursuant to Section 2.03(c) to purchase a portion of a
Letter of Credit Advance made by the Issuing Bank, (b) the Administrative
Agent pursuant to Section 2.02(e) to reimburse the Administrative Agent for
the amount of any Advance made by the Administrative Agent for the account
of such Lender Party, (c) any other Lender Party pursuant to Section 2.13
to purchase any participation in Advances owing to such other Lender Party
and (d) any Agent or any Issuing Bank pursuant to Section 7.05 to reimburse
such Agent or the Issuing Bank for such Lender Party's ratable share of any
amount required to be paid by the Lender Parties to such Agent or the
Issuing Bank as provided therein. In the event that a portion of a
Defaulted Amount shall be deemed paid pursuant to Section 2.15(b), the
remaining portion of such Defaulted Amount shall be considered a Defaulted
Amount originally required to be paid hereunder or under any other Loan
Document on the same date as the Defaulted Amount so deemed paid in part.
"DEFAULTING LENDER" means, at any time, any Lender Party that, at such
time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take
any action or be the subject of any action or proceeding of a type
described in Section 6.01(f).
"DOMESTIC LENDING OFFICE" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
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or in the Assignment and Acceptance pursuant to which it became a Lender
Party, as the case may be, or such other office of such Lender Party as
such Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
"EBITDA" means, for any period, the sum of (a) net income (or net
loss), plus (b) the following to the extent deducted in calculating such
net income (or net loss): (i) interest expense, (ii) income tax expense,
(iii) depreciation expense, (iv) amortization expense (including
amortization of intangibles, debt discount and organization costs), (v)
other non-cash losses, charges or items (excluding any such non-cash item
to the extent that it represents an accrual for potential ordinary course
cash items in any future period or amortization of a prepaid cash item that
was paid in a prior period), (vi) any extraordinary or non-recurring losses
or charges, (vii) losses from the sale or other disposition of assets made
other than in the ordinary course of business, (viii) losses from
discontinued operations, (ix) fees and expenses associated with the early
extinguishment of Debt, (x) fees, charges and other expenses incurred in
connection with the issuance of Debt (including this Agreement) or Equity
Interests or the making of any Investment described in Section 5.02(f), in
each case whether or not such transaction is consummated, minus (c) (i) to
the extent added in calculating such net income (or net loss), other
non-recurring non-cash items (excluding any such non-cash item to the
extent it represents the reversal of an accrual or reserve for potential
cash item in any prior period), in each case as determined for the Borrower
and its Subsidiaries on a Consolidated basis and (ii) extraordinary or
non-recurring gains.
For purposes of calculating Consolidated EBITDA for any period
pursuant to any determination of the Leverage Ratio, the Senior Secured
Leverage Ratio and the Fixed Charge Coverage Ratio, if during such period
the Borrower or one or more of its Subsidiaries shall have made an asset
disposition or a permitted acquisition, Consolidated EBITDA for such period
shall be calculated after giving effect thereto on a pro forma basis, in
accordance with Permitted Pro Forma Adjustments.
"EFFECTIVE DATE" has the meaning specified in Section 3.01.
"ELIGIBLE ASSIGNEE" means (a) a Lender Party; (b) an Affiliate of a
Lender Party; (c) an Approved Fund; and (d) any other Person (other than an
individual) approved by (i) the Administrative Agent, (ii) in the case of
an assignment of a Revolving Credit Commitment, the Issuing Bank and (iii)
unless an Event of Default has occurred and is continuing, the Borrower
(each such approval not to be unreasonably withheld or delayed; provided,
however, that neither any Loan Party nor any Affiliate of a Loan Party
shall qualify as an Eligible Assignee under this definition.
"ENVIRONMENTAL ACTION" means any judicial or administrative action,
proceeding, suit, or investigation, or any written demand, claim, notice of
non-compliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating in
any way to any Environmental Law, any Environmental Permit or Hazardous
Material or arising under Environmental Law with respect to any alleged
injury or threat to health, safety or the environment, including, without
limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or third party
for damages, contribution, indemnification, cost recovery, compensation or
injunctive relief, in each case arising under Environmental Law.
"ENVIRONMENTAL LAW" means any Federal, state, local or foreign
statute, law, including common law ordinance, rule, regulation, code,
order, writ, judgment, injunction, decree or
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
9
judicial or legally binding agency interpretation, policy or guidance
relating to pollution or protection of the environment, of worker health
and safety or of natural resources, including, without limitation, those
relating to the use, handling, transportation, treatment, storage,
disposal, release or discharge of Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"EQUITY INTERESTS" means, with respect to any Person, shares of
capital stock of (or other ownership or residual profit interests in) such
Person, warrants, options or other rights for the purchase or other
acquisition from such Person of shares of capital stock of (or other
ownership or residual profit interests in) such Person, securities
convertible into or exchangeable for shares of capital stock of (or other
ownership or residual profit interests in) such Person or warrants, rights
or options for the purchase or other acquisition from such Person of such
shares (or such other interests), and other ownership or residual profit
interests in such Person (including, without limitation, partnership,
member or trust interests therein), whether voting or nonvoting, and
whether or not such shares, warrants, options, rights or other interests
are authorized or otherwise existing on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title IV of
ERISA is a member of the controlled group of any Loan Party, or under
common control with any Loan Party, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA EVENT" means (a)(i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC or (ii) the requirements of Section 4043(b) of ERISA
apply with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9),
(10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected
to occur with respect to such Plan within the following 30 days; (b) the
application for a minimum funding waiver with respect to a Plan; (c) the
provision by the administrator of any Plan of a notice of intent to
terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA); (d) the cessation of operations at a facility of any Loan Party
or any ERISA Affiliate in the circumstances described in Section 4062(e) of
ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for
imposition of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan requiring
the provision of security to such Plan pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan pursuant
to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, such Plan.
"ESCROW BANK" has the meaning specified in Section 2.15(c).
"EUROCURRENCY LIABILITIES" has the meaning specified in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
10
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party (or, if no such
office is specified, its Domestic Lending Office), or such other office of
such Lender Party as such Lender Party may from time to time specify to the
Borrower and the Administrative Agent.
"EURODOLLAR RATE" means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, the rate per annum
obtained by dividing (and rounding upward to the next whole multiple of
1/16 of 1%) (i) (a) the rate per annum (rounded to the nearest 1/100 of 1%)
equal to the rate determined by Administrative Agent to be the offered rate
which appears on the Reuters LIBOR 01 page, or if such page is not
available, the page of the Telerate Screen (currently being page 3750),
which displays an average British Bankers Association Interest Settlement
Rate for deposits in U.S. Dollars (for delivery on the first day of such
period) with a term equivalent to such period, determined as of
approximately 11:00 a.m. (London, England time) on the date that is two
Business Days prior to the commencement of such Interest Period, or (b) in
the event the rate referenced in the preceding clause (a) does not appear
on such pages or services or if such pages or services shall cease to be
available, the rate per annum (rounded to the nearest 1/100 of 1%) equal to
the rate determined by Administrative Agent to be the offered rate on such
other page or other service which displays an average British Bankers
Association Interest Settlement Rate for deposits in U.S. Dollars (for
delivery on the first day of such period) with a term equivalent to such
period, determined as of approximately 11:00 a.m. (London, England time) on
the date that is two Business Days prior to the commencement of such
Interest Period, or (c) in the event the rates referenced in the preceding
clauses (a) and (b) are not available, the rate per annum (rounded to the
nearest 1/100 of 1%) equal to the offered quotation rate to first class
banks in the London interbank market by Administrative Agent for deposits
(for delivery on the first day of the relevant period) in U.S. Dollars of
amounts in same day funds comparable to the principal amount of the
applicable Advance for which the Eurodollar Rate is then being determined
with maturities comparable to such period as of approximately 11:00 a.m.
(London, England time) on that is two Business Days prior to the
commencement of such Interest Period, by (ii) an amount equal to (a) one
minus (b) the Applicable Reserve Requirement.
"EURODOLLAR RATE ADVANCE" means an Advance that bears interest as
provided in Section 2.07(a)(ii).
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXCESS AMOUNT" has the meaning specified in Section 5.02(o).
"EXCLUDED HOLDERS" means, collectively, (i) Equity Group Investments
and affiliated funds controlled by Equity Group Investment, (ii)
Perseus-▇▇▇▇▇ BioPharmaceutical Fund, LP and (iii) ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ and
Co., Inc. and the affiliated funds controlled by ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ and Co.,
Inc., who collectively hold in excess of 18.24% Equity Interests in the
Borrower and its Subsidiaries as of September 22, 2006.
"EXISTING DEBT" means Debt of each Loan Party and its Subsidiaries
outstanding immediately before the occurrence of the Effective Date.
"EXISTING LETTERS OF CREDIT" means the outstanding letters of credit
issued pursuant to the Bridge Loan Agreement.
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
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"FACILITY" means the Revolving Credit Facility, the Letter of Credit
Facility or the Swingline Facility.
"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 members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average of the quotations for such day for such transactions received by
the Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"FEE LETTER" means the fee letter dated June 6, 2006 between the
Borrower and Royal Bank.
"FISCAL YEAR" means a fiscal year of the Borrower and its Consolidated
Subsidiaries ending on June 30 in any calendar year.
"FIXED CHARGE COVERAGE RATIO" means, for any Measurement Period, the
ratio of (a)(i) EBITDA to (b) the sum of (i) Interest Expense (but
excluding any fees and expenses associated with the early extinguishment of
Debt), plus (ii) scheduled principal payments on all Debt for Borrowed
Money paid in cash, including without limitation under this Agreement (but
excluding, for purposes of the Fiscal Year ending December 31, 2011, the
obligation to repay all Advances on the Termination Date), plus (iii) taxes
on income paid in cash, plus (iv) Restricted Payments made in cash by the
Borrower during such period, plus (v) the amount of Capital Expenditures
that are not financed through the incurrence of non-revolving long-term
debt permitted by this Agreement, in each case as determined for the
Borrower and its Subsidiaries on a Consolidated basis.
"FOREIGN SUBSIDIARY" means (a) a Subsidiary that is a controlled
foreign corporation under Section 957 of the Internal Revenue Code or (b)
any Subsidiary organized under the laws of a jurisdiction outside of the
United States, to the extent the pledge of the Equity Interests or assets
of, or guarantee by, such Subsidiary, in each case in support of the
Obligations, would result in adverse tax consequences to the Loan Parties.
"FUND" means any Person (other than an individual) that is or will be
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its
business.
"GAAP" has the meaning specified in Section 1.03.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state,
province, city, municipal entity or other political subdivision thereof,
and any governmental, executive, legislative, judicial, administrative or
regulatory agency, department, authority, instrumentality, commission,
board, bureau or similar body, whether ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, local or foreign.
"GOVERNMENTAL AUTHORIZATION" means any authorization, approval,
consent, franchise, license, covenant, order, ruling, permit,
certification, exemption, notice, declaration or similar right, undertaking
or other action of, to or by, or any filing, qualification or registration
with, any Governmental Authority.
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
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"GRANTING LENDER" has the meaning specified in Section 9.07(k).
"GUARANTEE OBLIGATION" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or intended to
guarantee any Debt ("PRIMARY OBLIGATIONS") of any other Person (the
"PRIMARY OBLIGOR") in any manner, whether directly or indirectly,
including, without limitation, (a) the direct or indirect guarantee,
endorsement (other than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by
such Person of the Obligation of a primary obligor, (b) the Obligation to
make take-or-pay or similar payments, if required, regardless of
nonperformance by any other party or parties to an agreement or (c) any
Obligation of such Person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (A) for the purchase or
payment of any such primary obligation or (B) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (iii) to purchase property,
assets, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or
hold harmless the holder of such primary obligation against loss in respect
thereof. The amount of any Guarantee Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation
in respect of which such Guarantee Obligation is made (or, if less, the
maximum amount of such primary obligation for which such Person may be
liable pursuant to the terms of the instrument evidencing such Guarantee
Obligation) or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required
to perform thereunder), as determined by such Person in good faith.
"GUARANTEED OBLIGATIONS" has the meaning specified in Section 8.01.
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls, toxic mold and
radon gas and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or a
contaminant under any Environmental Law.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other hedging agreements.
"HEDGE BANK" means any Lender Party or an Affiliate of a Lender Party
in its capacity as a party to a Secured Hedge Agreement.
"INCREASED AMOUNT DATE" has the meaning specified in Section 2.17.
"INCREASED COMMITMENTS" has the meaning assigned to such term in
Section 2.17.
"INCREASED REVOLVING CREDIT FACILITY" has the meaning assigned to such
term in Section 2.17.
"INCREASING REVOLVING CREDIT LENDER" has the meaning assigned to such
term in Section 2.17.
"INDEMNIFIED PARTY" has the meaning specified in Section 9.04(b).
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
13
"INFORMATION MEMORANDUM" means the information memorandum dated July
2006, used by the Lead Arranger in connection with the syndication of the
Commitments.
"INITIAL EXTENSION OF CREDIT" means the initial Borrowing and/or the
issuance of a Letter of Credit hereunder.
"INITIAL ISSUING BANK" means, collectively, each of the banks listed
on the signature pages hereof as the Initial Issuing Bank.
"INITIAL LENDER PARTIES" means any Initial Issuing Bank, the Initial
Swingline Bank and the Initial Lenders.
"INITIAL LENDERS" means the banks, financial institutions and other
institutional lenders listed on the signature pages hereof as the Initial
Lenders.
"INITIAL SWINGLINE BANK" means the bank listed on the signature pages
hereof as the Initial Swingline Bank.
"INSUFFICIENCY" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"INTEREST EXPENSE" means, for any period, interest payable on, and
amortization of debt discount in respect of, all Debt for Borrowed Money,
as determined in accordance with GAAP.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance, and ending on the last day of
the period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, as the Borrower may, upon notice received by the Administrative
Agent not later than 11:00 A.M. (New York City time) on the third Business
Day prior to the first day of such Interest Period, select; provided,
however, that:
(a) the Borrower may not select any Interest Period with respect
to any Eurodollar Rate Advance under the Revolving Credit Facility
that ends after any principal repayment installment date for the
Revolving Credit Facility unless, after giving effect to such
selection, the aggregate principal amount of Base Rate Advances and of
Eurodollar Rate Advances having Interest Periods that end on or prior
to such principal repayment installment date for the Revolving Credit
Facility shall be at least equal to the aggregate principal amount of
Advances under the Revolving Credit Facility due and payable on or
prior to such date;
(b) Interest Periods commencing on the same date for Eurodollar
Rate Advances comprising part of the same Borrowing shall be of the
same duration;
(c) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day; provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
14
month, the last day of such Interest Period shall occur on the next
preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a day
of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"INVESTMENT" in any Person means any loan or advance to such Person
(other than accounts receivable in the ordinary course of business not
overdue by more than 120 days), any purchase or other acquisition of any
Equity Interests or Debt or the assets comprising a division or business
unit or a substantial part or all of the business of such Person, any
capital contribution to such Person or any other direct or indirect
investment in such Person, including, without limitation, any acquisition
by way of a merger or consolidation (or similar transaction). For purposes
of calculation, the amount of any Investment outstanding at any time shall
be the aggregate cash Investment less all cash returns, cash dividends, and
cash distributions thereon (but shall in no event be less than zero).
"ISSUING BANK" means each Initial Issuing Bank or any Eligible
Assignee thereof to which any Letter of Credit Fronting Commitment
hereunder has been assigned pursuant to the terms and conditions of Section
9.07 so long as such Eligible Assignee expressly agrees to perform in
accordance with their terms all of the obligations that by the terms of
this Agreement are required to be performed by it as an Issuing Bank and
notifies the Administrative Agent of its Applicable Lending Office and the
amount of its Letter of Credit Commitment (which information shall be
recorded by the Administrative Agent in the Register), for so long as such
Initial Issuing Bank or Eligible Assignee, as the case may be, shall have a
Letter of Credit Commitment.
"L/C DISBURSEMENT" means a payment or disbursement made by any Issuing
Bank pursuant to a Letter of Credit.
"L/C RELATED DOCUMENTS" has the meaning specified in Section
2.04(c)(ii)(A).
"LEAD ARRANGER" means RBC Capital Markets* as Lead Arranger under this
Agreement.
"LENDER PARTY" means any Lender, any Issuing Bank or any Swingline
Bank.
"LENDERS" means the Initial Lenders, the Swingline Lenders and each
Person that shall become a Lender hereunder pursuant to Section 9.07 for so
long as such Initial Lender or Person, as the case may be, shall be a party
to this Agreement, and any new Revolving Credit Lender that becomes a
Lender pursuant to Section 2.17.
"LETTERS OF CREDIT" has the meaning specified in Section 2.01(b).
----------
* RBC Capital Markets is a brand name for the capital market activities of
Royal Bank of Canada.
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
15
"LETTER OF CREDIT ADVANCE" means an advance made by the Issuing Bank
or any Revolving Credit Lender pursuant to Section 2.03(c).
"LETTER OF CREDIT AGREEMENT" has the meaning specified in Section
2.03(a).
"LETTER OF CREDIT FACILITY" means, at any time, an amount equal to the
amount of the Issuing Bank's Letter of Credit Fronting Commitment at such
time, as such amount may be reduced at or prior to such time pursuant to
Section 2.05.
"LETTER OF CREDIT FRONTING COMMITMENT" means, with respect to any
Issuing Bank, the amount set forth opposite such Issuing Bank's name on
Schedule I hereto under the caption "Letter of Credit Fronting Commitment"
or, if an Issuing Bank has entered into an Assignment and Acceptance, set
forth for such Issuing Bank in the Register maintained by the
Administrative Agent pursuant to Section 9.07(d) as the Issuing Bank's
"Letter of Credit Commitment" as such amount may be reduced at or prior to
such time pursuant to Section 2.05. The total aggregate amount of the
Letter of Credit Fronting Commitment is $30,000,000.
"LEVERAGE RATIO" means, at any date of determination, the ratio of (a)
Debt for Borrowed Money as of the last day of such Measurement Period to
(b) EBITDA for such Measurement Period, in each case as determined for the
Borrower and its Subsidiaries on a Consolidated basis.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"LOAN DOCUMENTS" means (a) for purposes of this Agreement and the
Subsidiary Guaranty, (i) this Agreement, (ii) the Notes, (iii) the
Subsidiary Guaranty, (iv) the Collateral Documents, (v) the Fee Letter and
(vi) each Letter of Credit Agreement, in each case as amended, and (b) for
purposes of the Collateral Documents, (i) this Agreement, (ii) the Notes,
(iii) the Subsidiary Guaranty, (iv) the Collateral Documents, (v) the Fee
Letter, (vi) each Letter of Credit Agreement and (vii) each Secured Hedge
Agreement, in each case as amended.
"LOAN PARTIES" means the Borrower and the Subsidiary Guarantors.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL ADVERSE CHANGE" means any material adverse change in the
business, condition (financial or otherwise), operations, performance or
properties of the Borrower or the Borrower and its Subsidiaries taken as a
whole; provided, however, that, in any event, the following shall not be
deemed to be or to have caused a Material Adverse Change: (x) the arising
or existence of any private label competitor, (y) the existence of
challenges to the Borrower's patents previously disclosed by the Borrower
to the Administrative Agent prior to the Effective Date and as set forth in
Schedule III, or the commencement of any similar challenge arising after
the Effective Date hereto and identified in writing to the Administrative
Agent and (z) any adverse determination of any patent challenge that is
subject to appeal and that does not operate as a or otherwise provide
injunctive relief against the manufacture of the Borrower's products.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance or
properties of the Borrower or the Borrower and its Subsidiaries taken as a
whole, (b) the rights and remedies of the Administrative Agent or
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
16
the Lender Parties under this Agreement or any other Loan Document or (c)
the ability of the Borrower to perform its obligations under this Agreement
and each other Loan Document; provided, however, that, in any event, the
following shall not be deemed to be or to have caused a Material Adverse
Effect: (x) the arising or existence of any private label competitor, (y)
the existence of challenges to the Borrower's patents previously disclosed
by the Borrower to the Administrative Agent prior to the Effective Date and
as set forth in Schedule III, or the commencement of any similar challenge
arising after the Effective Date hereto and identified in writing to the
Administrative Agent and (z) any adverse determination of any patent
challenge that is subject to appeal and that does not operate as a or
otherwise provide injunctive relief against the manufacture of the
Borrower's products.
"MEASUREMENT PERIOD" means, at any date of determination, the most
recently completed four consecutive fiscal quarters of the Borrower ending
on or prior to such date.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any
of the preceding five plan years made or accrued an obligation to make
contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and at least one Person other than the
Loan Parties and the ERISA Affiliates or (b) was so maintained and in
respect of which any Loan Party or any ERISA Affiliate could have liability
under Section 4064 or 4069 of ERISA in the event such plan has been or were
to be terminated.
"NET CASH PROCEEDS" means, with respect to any sale, lease, transfer
or other disposition of any asset of the Borrower or any of its
Subsidiaries made pursuant to clauses (v) or (xii) of Section 5.02(e) or to
the extent not otherwise permitted under this Agreement, the excess, if
any, of (i) the sum of cash and Cash Equivalents actually received in
connection with such sale, lease, transfer or other disposition (including
any cash or Cash Equivalents received by way of deferred payment pursuant
to, or by monetization of, a note receivable or otherwise, but only as and
when so received) minus (ii) the sum of (A) the principal amount of any
Debt (other than Debt under the Loan Documents) that is secured by such
asset and any related premiums, fees, expenses and other amounts due
thereunder and that are required to be repaid in connection with such sale,
lease, transfer or other disposition thereof, (B) the reasonable
out-of-pocket costs, fees, commissions, premiums and expenses incurred by
the Borrower or its Subsidiaries, (C) federal, state, provincial, foreign
and local taxes reasonably estimated by the Borrower to be actually payable
within the current or the immediately succeeding tax year as a result of
any gain recognized (including any taxes paid or payable as a result of the
repatriation of the proceeds of such sale, lease, transfer or other
disposition) in connection therewith, and (D) a reasonable reserve for any
purchase price adjustment or any indemnification payments (fixed and
contingent) attributable to the seller's obligations to the purchaser
undertaken by the Borrower or any of its Subsidiaries in connection with
such sale, lease, transfer or other disposition; provided, however, that
(i) Net Cash Proceeds shall not include any such amounts to the extent such
amounts are reinvested in the business of the Borrower and its Subsidiaries
within 270 days after the date of receipt thereof and (ii) so long as no
Default or Event of Default shall have occurred and is continuing, no
proceeds shall constitute Net Proceeds until the aggregate amount of all
such proceeds shall exceed $10,000,000.
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
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"NON-CONSENTING LENDER" means, in the event that the Required Lenders have
agreed to any consent, waiver or amendment pursuant to Section 9.01 that
requires the consent of one or more Lenders in addition to the Required Lenders,
any Lender who is entitled to agree to such consent, waiver or amendment but who
does not so agree.
"NOTE" means a promissory note of the Borrower payable to the order of any
Lender, in substantially the form of Exhibit A hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from the Revolving Credit
Advances, Letter of Credit Advances and Swingline Advances made by such Lender.
"NOTICE OF BORROWING" has the meaning specified in Section 2.02(a).
"NOTICE OF SWINGLINE BORROWING" has the meaning specified in Section
2.02(c).
"NOTICE OF ISSUANCE" has the meaning specified in Section 2.03(a).
"NOTICE OF RENEWAL" has the meaning specified in Section 2.01(b).
"NOTICE OF TERMINATION" has the meaning specified in Section 2.01(b).
"OBLIGATION" means, with respect to any Person, any payment, performance or
other obligation of such Person of any kind, including, without limitation, any
liability of such Person on any claim, whether or not the right of any creditor
to payment in respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, disputed, undisputed, legal,
equitable, secured or unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by (other than by unconditional discharge) any
proceeding referred to in Section 6.01(f). Without limiting the generality of
the foregoing, the Obligations of any Loan Party under the Loan Documents
include (a) the obligation to pay principal, interest, Letter of Credit
commissions, charges, expenses, fees, attorneys' fees and disbursements,
indemnities and other amounts to the extent payable by such Loan Party pursuant
to the terms of any Loan Document and (b) the obligation of such Loan Party to
reimburse any amount in respect of any of the foregoing that any Lender Party,
in its sole reasonable discretion, may elect to pay or advance on behalf of such
Loan Party in accordance with the terms of the Loan Documents.
"OTHER TAXES" has the meaning specified in Section 2.12(b).
"PATRIOT ACT" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub.
L. 107-56, signed into law October 26, 2001.
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor).
"PERMITTED ACQUISITION" means an Acquisition permitted under Section
5.02(f)(vii).
"PERMITTED CONVERTIBLE NOTES" means notes permitted to be issued by the
Borrower in an amount not to exceed $250,000,000 that are convertible into
Equity Interests of the Borrower, so long as (i) no material terms applicable to
such notes (including covenants and events of default) are materially more
restrictive (taken as a whole) to the Borrower than the terms that are
applicable to the Borrower under the Loan Documents, (ii) such notes are
unsecured and are subordinated in right of payment to the prior payment of all
obligations of the Loan Parties under the Loan Documents, (iii) such notes
mature on a date not earlier than fourteen business days
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
18
after the Termination Date, and do not include any amortization payments
prior to such date, (iv) such notes accrue interest at a rate determined in
good faith by the board of directors of the Borrower to be a market rate of
interest for such notes at the time of issuance thereof, (v) such notes are
subject to customary payment blockage requirements (where appropriate and
with reference to the markets from and in which such notes are being issued
or placed), (vi) the providers of such notes shall have, to the extent
reasonably requested by the Administrative Agent, entered into a
subordination agreement with the Administrative Agent in form and substance
acceptable to the Administrative Agent, acting reasonably (or that have
self-executing subordination provisions that are customary for convertible
debt instruments in the U.S. 144A and/or public debt markets), and (vii)
such notes otherwise have terms that are customary for convertible debt
instruments in the U.S. 144A and/or public debt markets.
"PERMITTED ENCUMBRANCES" means licenses, leases and subleases of real
property granted to others in the ordinary course of business that do not
materially and adversely affect the use of the property encumbered thereby
for its intended purposes.
"PERMITTED LIENS" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced (in each case, that is not being contested in good
faith and by proper proceedings or, pursuant to this Agreement, is not
required to be contested, and such enforcement, collection, execution, levy
or foreclosure proceeding could not, either individually or in the
aggregate, be reasonably expected to have a Material Adverse Effect): (a)
Liens for taxes, assessments and governmental charges or levies to the
extent not required to be paid under Section 5.01(b); (b) Liens imposed by
law, such as materialmen's, mechanics', warehousemen's, carriers',
processors', landlords', maritime, workmen's and repairmen's Liens and
other similar Liens arising in the ordinary course of business securing
obligations that (A)(i) are not overdue for a period of more than 90 days
and (ii) individually or together with all other Permitted Liens
outstanding on any date of determination do not materially adversely affect
the use of the property to which they relate or (B) are being contested in
good faith and by proper proceedings, as to which appropriate reserves are
being maintained; (c) Liens incurred or pledges or deposits in the ordinary
course of business to secure obligations under workers' compensation laws,
unemployment insurance, social security or similar legislation or to secure
public or statutory obligations or the performance of bids, lenders, or fee
and expense arrangements with trustees and fiscal agents; (d) Liens
securing judgments (or the payment of money not constituting a Default
under Section 6.01(g) or securing appeal or other surety bonds related to
such judgment Liens); (e) purported Liens evidenced by the filing of
precautionary Uniform Commercial Code financing statements relating solely
to operating leases of personal property entered into in the ordinary
course of business; (f) customary rights of setoff imposed by law,
revocation, refund or chargeback in favor of banks or other depositary
institutions incurred in the ordinary course in amounts on deposit in
deposit accounts maintained with such bank or depositary; (g) Liens
securing surety, indemnity, performance, appeal and release bonds incurred
in the ordinary course of business (exclusive of obligations for the
payment of borrowed money); (h) Liens arising by operation of law in the
ordinary course of business on insurance policies and proceeds thereof to
secure premiums thereunder, (i) judgment Liens in existence for less than
60 days after the entry thereof or with respect to which execution has been
stayed or the payment of which is covered in full (subject to customary
deductibles) by insurance maintained with reputable insurance companies and
which do not otherwise result in an Event of Default under Sections 6.01(g)
or (h) and (j) Permitted Encumbrances.
"PERMITTED PRO FORMA ADJUSTMENTS" means, with respect to the Borrower
and its Subsidiaries on a Consolidated basis for any period, EBITDA for
such period adjusted for any
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
19
Permitted Acquisitions or dispositions as required or permitted by
Regulation S-X or otherwise reasonably acceptable to the Administrative
Agent.
"PERSON" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"PLEDGED DEBT" has the meaning specified in the Security Agreement.
"PLEDGED EQUITY" has the meaning specified in the Security Agreement.
"POST-PETITION INTEREST" has the meaning specified in Section 8.06.
"PREFERRED INTERESTS" means, with respect to any Person, Equity
Interests issued by such Person that are entitled to a preference or
priority over any other Equity Interests issued by such Person upon any
distribution of such Person's property and assets, whether by dividend or
upon liquidation.
"PRODUCT ACQUISITION" means the acquisition on June 12, 2006, by the
Borrower, pursuant to the Product Purchase Agreement, dated May 24, 2006,
among the Borrower, ▇▇▇▇▇ Respiratory Operations Sub, Inc., a wholly-owned
subsidiary of the Borrower and UCB Manufacturing, Inc., of certain rights
and assets related to the manufacture and sale of the Delsym brand
over-the-counter cough and cold product from UCB Manufacturing, Inc.
"PRO RATA SHARE" of any amount means, with respect to any Lender at
any time, the product of such amount times a fraction the numerator of
which is the amount of such Lender's Revolving Credit Commitment at such
time (or, if the Commitments shall have been terminated pursuant to Section
2.05 or 6.01, such Lender's Revolving Credit Commitment as in effect
immediately prior to such termination) and the denominator of which is the
Revolving Credit Facility at such time (or, if the Commitments shall have
been terminated pursuant to Section 2.05 or 6.01, the Revolving Credit
Facility as in effect immediately prior to such termination).
"REDEEMABLE" means, with respect to any Equity Interest, any such
Equity Interest that (a) the issuer has undertaken to redeem at a fixed or
determinable date or dates, whether by operation of a sinking fund or
otherwise, or upon the occurrence of a condition not solely within the
control of the issuer or (b) is redeemable at the option of the holder.
"REFINANCING DEBT" means, without duplication, Debt that refunds,
refinances, extends or all of the proceeds from which are used to repay (in
whole or in part) any Debt permitted hereunder, but only to the extent that
(a) such Refinancing Debt is subordinated to the Debt hereunder at least to
the same extent as the Debt being refunded, refinanced or extended, if at
all; (b) the principal amount of such Refinancing Debt has a weighted
average life to maturity not less than the weighted average life to
maturity of the Debt being refunded, refinanced or extended and is
scheduled to mature no earlier than the Debt being refunded, refinanced or
extended; (c) such Refinancing Debt is in an aggregate principal amount (or
if issued with original issue discount, an aggregate issue price) that is
equal to or less than the sum of (x) the aggregate principal amount (or, if
issued with original issue discount, the aggregate accreted value) of the
Debt being refunded, refinanced or extended and the amount of any premium
reasonably necessary to accomplish such refinancing, (y) the amount of
accrued and unpaid interest, if any, and premiums
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
20
owed, if any, not in excess of pre-existing prepayment provisions on such
Debt being refunded, refinanced or extended, and (z) the amount of
customary fees, expenses and costs related to the incurrence of such
Refinancing Debt; and (d) such Refinancing Debt is incurred by the same
Person that initially incurred the Debt being refunded, refinanced or
extended.
"REGISTER" has the meaning specified in Section 9.07(d).
"REGULATION S-X" means Regulation S-X promulgated under the Securities
Act of 1933, as amended.
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"REQUIRED LENDERS" means, at any time, Lenders owed or holding greater
than 50% in interest of the sum of (a) the aggregate principal amount of
the Advances outstanding at such time and (b) the aggregate Unused
Revolving Credit Commitments at such time; provided, however, that if any
Lender shall be a Defaulting Lender at such time, there shall be excluded
from the determination of Required Lenders at such time (A) the aggregate
principal amount of the Advances owing to such Lender (in its capacity as a
Lender) and outstanding at such time, (B) such Lender's Pro Rata Share of
the aggregate Available Amount of all Letters of Credit outstanding at such
time and (C) the Unused Revolving Credit Commitment of such Lender at such
time. For purposes of this definition, the aggregate principal amount of
Swingline Advances owing to the Swingline Bank and of Letter of Credit
Advances owing to any Issuing Bank and the Available Amount of each Letter
of Credit shall be considered to be owed to the Revolving Credit Lenders
ratably in accordance with their respective Revolving Credit Commitments.
"RESPONSIBLE OFFICER" means the chief executive officer, chief
financial officer, president of a Loan Party and the general counsel of the
Borrower. Any document delivered hereunder that is signed by a Responsible
Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on
the part of such Loan Party and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan Party.
"RESTRICTED PAYMENT" has the meaning specified in Section 5.02(h).
"REVOLVING CREDIT ADVANCE" has the meaning specified in Section
2.01(a).
"REVOLVING CREDIT BORROWING" means a Borrowing comprised of Revolving
Credit Facility Loans.
"REVOLVING CREDIT COMMITMENT" means, with respect to any Lender at any
time, the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Revolving Credit Commitment" or, if such Lender has
entered into one or more Assignment and Acceptances, set forth for such
Lender in the Register maintained by the Administrative Agent pursuant to
Section 9.07(d) as such Lender's "Revolving Credit Commitment," as such
amount may, at or prior to such time, be reduced or increased pursuant to
Section 2.05 or Section 2.17, respectively.
"REVOLVING CREDIT FACILITY" means, at any time, an amount equal to the
lesser of (a) the aggregate amount of the Revolving Credit Lenders'
Revolving Credit Commitments at such time
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
21
and (b) $50,000,000, as such amount may, at or prior to such time, be
reduced or increased pursuant to Section 2.05 or Section 2.17,
respectively.
"REVOLVING CREDIT LENDER" means any Lender that has a Revolving Credit
Commitment (including New Revolving Credit Lenders).
"REVOLVING CREDIT FACILITY LOAN" means a loan made by a Revolving
Credit Lender pursuant to section 2.01(a) or a New Revolving Credit Lender
pursuant to Section 2.17(a). Each Revolving Credit Facility Loan shall be a
Eurodollar Loan or a Base Rate Loan.
"ROYAL BANK" has the meaning specified in the recital of parties to
this Agreement.
"S&P" means Standard & Poor's, a division of The McGraw Hill
Companies, Inc.
"SECURED HEDGE AGREEMENT" means any Hedge Agreement required or
permitted under Article V that is entered into by and between the Borrower
and any Hedge Bank.
"SECURED OBLIGATIONS" has the meaning specified in Section 2 of the
Security Agreement.
"SECURED PARTIES" means the Agents, the Lender Parties, and the Hedge
Banks.
"SECURITY AGREEMENT" means the Security Agreement dated as of July 11,
2006 from the Borrower and the Subsidiary Guarantors to Royal Bank, as
Collateral Agent, as the same may be amended, modified and supplemented
from time to time.
"SENIOR SECURED LEVERAGE RATIO" means, at any date of determination,
the ratio of (a) senior secured Debt for Borrowed Money as of the last day
of such Measurement Period to (b) EBITDA for such Measurement Period, in
each case as determined for the Borrower and its Subsidiaries on a
Consolidated basis.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and no Person other than the Loan Parties
and the ERISA Affiliates or (b) was so maintained and in respect of which
any Loan Party or any ERISA Affiliate could have liability under Section
4069 of ERISA in the event such plan has been or were to be terminated.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond
such Person's ability to pay such debts and liabilities as they mature and
(d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in
the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual
or matured liability as determined in good faith by such Person.
"SPC" has the meaning specified in Section 9.07(k).
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
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"SUBORDINATED OBLIGATIONS" has the meaning specified in Section 8.06.
"SUBSIDIARY" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) the interest in the capital or
profits of such partnership, joint venture or limited liability company or
(c) the beneficial interest in such corporation, partnership, joint
venture, limited liability company, trust or estate is at the time directly
or indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"SUBSIDIARY GUARANTORS" means the Subsidiaries of the Borrower listed
on Schedule II hereto and each other Subsidiary of the Borrower that shall
be required to execute and deliver a guaranty pursuant to Section 5.01(j).
"SUBSIDIARY GUARANTY" means the guaranty of the Subsidiary Guarantors
set forth in Article VIII, together with each other guaranty and guaranty
supplement delivered pursuant to Section 5.01(j), in each case as amended,
amended and restated, modified or otherwise supplemented.
"SUBSIDIARY GUARANTY SUPPLEMENT" has the meaning specified in Section
8.05.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning specified in Section
7.01(c).
"SURVIVING DEBT" means Debt of each Loan Party and its Subsidiaries
outstanding immediately before and after giving effect to the Initial
Extension of Credit.
"SWINGLINE ADVANCE" means an advance made by the Swingline Bank
pursuant to Section 2.01(c) or Section 2.02(c).
"SWINGLINE BANK" means the Initial Swingline Bank and any Eligible
Assignee to which the Swingline Commitment hereunder has been assigned
pursuant to Section 9.07 so long as each such Eligible Assignee expressly
agrees to perform in accordance with their terms all obligations that by
the terms of this Agreement are required to be performed by it as a
Swingline Bank and notifies the Administrative Agent of its Applicable
Lending Office and the amount of its Swingline Commitment (which
information shall be recorded by the Administrative Agent in the Register),
for so long as such Initial Swingline Bank or Eligible Assignee, as the
case may be, shall have a Swingline Commitment.
"SWINGLINE BORROWING" means a borrowing consisting of a Swingline
Advance made by the Swingline Bank pursuant to Section 2.01(c) or Section
2.02(c).
"SWINGLINE COMMITMENT" means, with respect to the Swingline Bank at
any time, the amount set forth opposite the Swingline Bank's name on
Schedule I hereto under the caption "Swingline Commitment" or, if the
Swingline Bank has entered into one or more Assignment and Acceptances, set
forth for such Swingline Bank in the Register maintained by the
Administrative Agent pursuant to Section 9.07(d) as such Swingline Bank's
"Swingline Commitment," as such amount may be reduced at or prior to such
time pursuant to Section 2.05.
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
23
"SWINGLINE FACILITY" means, at any time, an amount equal to the lesser
of (a) the amount of the Swingline Bank's Swingline Commitment at such time
and (b) $10,000,000, as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"SYNTHETIC DEBT" means, with respect to any Person as of any date of
determination thereof, all Obligations of such Person in respect of
transactions entered into by such Person that are intended to function
primarily as a borrowing of funds (including, without limitation, any
minority interest transactions that function primarily as a borrowing) but
are not otherwise included in the definition of "Debt" or as a liability on
the consolidated balance sheet of such Person and its Subsidiaries in
accordance with GAAP.
"TAXES" has the meaning specified in Section 2.12(a).
"TERMINATION DATE" means the earlier to occur of (a) the date of
termination in whole of the Revolving Credit Commitments, the Letter of
Credit Fronting Commitments and the Swingline Commitments pursuant to
Sections 2.05 or 6.01 and (b) the date that is five years from the
Effective date.
"THRESHOLD AMOUNT" has the meaning specified in Section
5.02(f)(vii)(A).
"TRANSACTION" means the consummation and delivery by the Borrower of
this Agreement and the other Loan Documents, and the transactions
contemplated thereby.
"TYPE" refers to the distinction between Advances bearing interest at
the Base Rate and Advances bearing interest at the Eurodollar Rate.
"UNMATURED SURVIVING OBLIGATIONS" means Obligations under this
Agreement and the other Loan Documents that by their terms survive the
termination of this Agreement or the other Loan Documents but are not, as
of the date of determination, due and payable and for which no outstanding
claim has been made.
"UNUSED REVOLVING CREDIT COMMITMENT" means, with respect to any Lender
at any time, (a) such Lender's Revolving Credit Commitment at such time
minus (b) the sum of (i) the aggregate principal amount of all Revolving
Credit Advances, all Swingline Advances and all Letter of Credit Advances
made by such Lender (in its capacity as a Lender) and outstanding at such
time plus (ii) without duplication, such Lender's Pro Rata Share of (A) the
aggregate Available Amount of all Letters of Credit outstanding at such
time, (B) the aggregate principal amount of all Letter of Credit Advances
made by the Issuing Bank pursuant to Section 2.03(c) and outstanding at
such time and (C) the aggregate principal amount of all Swingline Advances
made by the Swingline Bank pursuant to Section 2.01(c) and outstanding at
such time.
"VOTING INTERESTS" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies, entitled
to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended
by the happening of such a contingency.
"WELFARE PLAN" means a welfare plan, as defined in Section 3(1) of
ERISA, that is maintained for employees of any Loan Party or in respect of
which any Loan Party could have liability.
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
24
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions. In this Agreement and the other Loan Documents in the computation of
periods of time from a specified date to a later specified date, the word "FROM"
means "from and including" and the words "TO" and "UNTIL" each mean "to but
excluding". References in the Loan Documents to any agreement or contract "AS
AMENDED" shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms.
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States of America in effect on the
date of determination thereof ("GAAP"); provided, however, that, in the event of
any change in GAAP from those applied in the preparation of the financial
statements referred to in Section 4.01(g) that would affect the computation of
any financial covenant, ratio, accounting definition or requirement set forth in
this Agreement or any other Loan Document, if the Borrower or the Required
Lenders shall so request, the Administrative Agent, the Required Lenders and the
Borrower shall negotiate in good faith to amend such financial covenant or
requirement to preserve the original intent thereof in light of such change in
GAAP; provided, further, that, until so amended as provided in the preceding
proviso, (a) such ratio or requirement shall continue to be computed in
accordance with GAAP without regard to such change therein, and (b) the Loan
Parties shall furnish to the Agents and the Lender Parties financial statements
required under this Agreement on the first delivery thereof after the
effectiveness of such change and one time only, setting forth a reconciliation
between calculations of such financial covenant or requirement made before and
after giving effect to such change in GAAP.
SECTION 1.04. Currency Equivalents Generally. Any amount
specified in this Agreement (other than in Articles II, VII and IX) or any of
the other Loan Documents to be in U.S. dollars shall also include the equivalent
of such amount in any currency other than U.S. dollars, such equivalent amount
to be determined at the rate of exchange quoted by the Administrative Agent in
New York, New York at the close of business on the Business Day immediately
preceding any date of determination thereof, to prime banks in New York, New
York for the spot purchase in the New York foreign exchange market of such
amount in U.S. dollars with such other currency.
SECTION 1.05. Pro Forma Calculations. Notwithstanding anything to
the contrary contained herein, with respect to any pro forma calculation of the
Leverage Ratio, the Senior Secured Leverage Ratio and the Fixed Charge Coverage
Ratio required hereunder, each such calculation shall be made on a pro forma
basis as if any permitted acquisition, disposition, incurrence of Debt or any
other event necessitating such calculation occurred on the first day of the
applicable reporting period (unless otherwise expressly specified herein) and,
in the case of any permitted acquisition or disposition, taking into account any
Permitted Pro Forma Adjustments.
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit. (a) The
Revolving Credit Advances. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make advances (each a "REVOLVING CREDIT
ADVANCE") to the Borrower from time to time on any Business
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
25
Day from and after the Effective Date until the Termination Date in an amount
for each such Advance not to exceed such Lender's Unused Revolving Credit
Commitment at such time. Each Revolving Credit Borrowing shall be in an
aggregate amount of (i) in the case of any such Borrowing comprised of
Eurodollar Rate Advances, $2,000,000 or an integral multiple of $500,000 in
excess thereof and (ii) in the case of any such Borrowing comprised of Base Rate
Advances, $1,000,000 or an integral multiple of $250,000 in excess thereof
(other than, in either case, a Borrowing the proceeds of which shall be used
solely to repay or prepay outstanding Swingline Advances or Letter of Credit
Advances) and shall consist of Revolving Credit Advances made simultaneously by
the Lenders ratably according to their Revolving Credit Commitments. Within the
limits of each Lender's Unused Revolving Credit Commitment in effect from time
to time, the Borrower may borrow under this Section 2.01(a), prepay pursuant to
Section 2.06(a) and reborrow under this Section 2.01(a)).
(b) (i) The Letters of Credit. Each Issuing Bank agrees, on the terms
and conditions hereinafter set forth, to issue (or cause its Affiliate that is a
commercial bank to issue on its behalf) standby letters of credit (the "LETTERS
OF CREDIT") in U.S. Dollars for the account of the Borrower from time to time on
any Business Day during the period from the Effective Date until 30 days before
the Termination Date in an aggregate Available Amount (i) for all Letters of
Credit issued by an Issuing Bank not to exceed at any time the Letter of Credit
Facility at such time and each Issuing Bank's Letter of Credit Fronting
Commitment at such time and (ii) for each such Letter of Credit not to exceed an
amount equal to the Unused Revolving Credit Commitments of the at such time. No
Letter of Credit shall have an expiration date (including all rights of the
Borrower or the beneficiary to require renewal) later than the earlier of the
date that is twelve months following the date of issuance thereof and the
Termination Date, but may by its terms be renewable annually upon notice (a
"NOTICE OF RENEWAL") given to the Issuing Banks and the Administrative Agent on
or prior to any date for notice of renewal set forth in such Letter of Credit
but in any event at least three Business Days prior to the date of the proposed
renewal of such Letter of Credit and upon fulfillment of the applicable
conditions set forth in Article III, unless the Issuing Banks have notified the
Borrower (with a copy to the Administrative Agent) on or prior to the date for
notice of termination set forth in such Letter of Credit but in any event at
least 30 Business Days prior to the date of automatic renewal of its election
not to renew such Letter of Credit (a "NOTICE OF TERMINATION"); provided that
the terms of each Letter of Credit that is automatically renewable annually
shall (x) require the Issuing Bank to give the beneficiary named in such Letter
of Credit notice of any Notice of Termination, (y) permit such beneficiary, upon
receipt of such notice, to draw under such Letter of Credit prior to the date
such Letter of Credit otherwise would have been automatically renewed and (z)
not permit the expiration date (after giving effect to any renewal) of such
Letter of Credit in any event to be extended to a date later than 30 days before
the Termination Date. If either a Notice of Renewal is not given by the Borrower
or a Notice of Termination is given by the Issuing Bank pursuant to the
immediately preceding sentence, such Letter of Credit shall expire on the date
on which it otherwise would have been automatically renewed; provided, however,
that even in the absence of receipt of a Notice of Renewal the Issuing Bank may
in its reasonable discretion, unless instructed to the contrary by the
Administrative Agent or the Borrower, deem that a Notice of Renewal had been
timely delivered and in such case, a Notice of Renewal shall be deemed to have
been so delivered for all purposes under this Agreement. Within the limits of
the Letter of Credit Facility, and subject to the limits referred to above, the
Borrower may request the issuance of Letters of Credit under this Section
2.01(b), repay any Letter of Credit Advances resulting from drawings thereunder
pursuant to Section 2.04(c) and request the issuance of additional Letters of
Credit under this Section 2.01(b).
(ii) On and after the Effective Date, any issued and outstanding
Letter of Credit issued pursuant to the Bridge Loan Agreement (and as set forth
in Schedule 2.01(b)) shall be deemed for all purposes to be a Letter of Credit
issued under Section 2.01(b) of this Agreement.
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26
(c) The Swingline Advances. The Swingline Bank agrees on the terms and
conditions hereinafter set forth, to make Swingline Advances to the Borrower
from time to time on any Business Day during the period from the Effective Date
until the Termination Date in an aggregate amount not to exceed at any time
outstanding the Swingline Bank's Swingline Commitment at such time. No Swingline
Advance shall be used for the purpose of funding the payment of principal of any
other Swingline Advance. Each Swingline Borrowing shall be in an amount of
$500,000 or an integral multiple of $100,000 in excess thereof and shall be made
as a Base Rate Advance. Within the limits of the Swingline Facility, the
Borrower may borrow under this Section 2.01(c), repay pursuant to Section
2.04(b) or prepay pursuant to Section 2.06 and reborrow under this Section
2.01(c). Immediately upon the making of a Swingline Advance, each Revolving
Credit Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swingline Bank a risk participation in such
Swingline Advance in an amount equal to the product of such Lender's Pro Rata
Share times the amount of such Swingline Advance; provided that the aggregate
outstanding Revolving Credit Advances made by each Lender together with its Pro
Rata Share of such Swingline Advance shall not exceed its Revolving Credit
Commitment.
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided in Section 2.02(b) or 2.03, each Borrowing shall be made on notice,
given not later than 1:00 P.M. (New York City time) on the third Business Day
prior to the date of the proposed Borrowing in the case of a Borrowing
consisting of Eurodollar Rate Advances, or the first Business Day prior to the
date of the proposed Borrowing in the case of a Borrowing consisting of Base
Rate Advances, by the Borrower to the Administrative Agent, which shall give to
each Appropriate Lender prompt notice thereof by telecopier. Each such notice by
the Borrower of a Borrowing (a "NOTICE OF BORROWING") may be by either telephone
(confirmed promptly in writing) or telecopier, in substantially the form of
Exhibit B hereto, in each case specifying therein the requested (i) date of such
Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate
amount of such Borrowing and (iv) in the case of a Borrowing consisting of
Eurodollar Rate Advances, initial Interest Period for each such Advance. Each
Appropriate Lender shall, before 1:00 P.M. (New York City time) on the date of
such Borrowing, make available for the account of its Applicable Lending Office
to the Administrative Agent at the Administrative Agent's Account, in same day
funds, such Lender's ratable portion of such Borrowing in accordance with the
respective Commitments under the applicable Facility of such Lender and the
other Appropriate Lenders. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the Borrower by
crediting the Borrower's Account; provided, however, that the Administrative
Agent shall first apply such funds to prepay ratably the aggregate principal
amount of any Letter of Credit Advances outstanding at such time, together with
interest accrued and unpaid thereon to and as of such date. Notwithstanding
anything to the contrary set forth herein, the initial Borrowing shall consist
of Base Rate Advances.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select Eurodollar Rate Advances having an Interest
Period of more than one month for the initial Borrowing hereunder and for the
first 30 days following the Effective Date (or such earlier date as shall be
specified in its sole reasonable discretion by the Administrative Agent in a
written notice to the Borrower and the Lenders) or for any Borrowing if the
aggregate amount of such Borrowing is less than $2,000,000 or if the obligation
of the Appropriate Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.09 or 2.10 and (ii) the Revolving Credit
Advances may not be outstanding as part of more than ten separate Borrowings.
(c) (i) Each Swingline Borrowing shall be made on notice, given not
later than 1:00 p.m. (New York City time) on the date of the proposed Swingline
Borrowing, by the Borrower to the Swingline Bank and the Administrative Agent.
Each such notice of a Swingline Borrowing (a "NOTICE OF SWINGLINE BORROWING")
shall be by telephone, confirmed promptly in writing, or by telecopier or
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electronic communication, specifying therein the requested (A) date of such
Borrowing, (B) amount of such Borrowing and (C) maturity of such Borrowing
(which maturity shall be no later than the fifth Business Day after the
requested date of such Borrowing). The Swingline Bank will make the amount of
the requested Swingline Advances available to the Borrower in same day funds by
crediting the Borrower's Account upon fulfillment of the applicable conditions
set forth in Article III.
(ii) The Swingline Bank may, at any time in its sole and absolute
discretion, request on behalf of the Borrower (and the Borrower hereby
irrevocably authorizes the Swingline Bank to so request on its behalf) that each
Revolving Credit Lender make a Base Rate Advance in an amount equal to such
Lender's Pro Rata Share of the amount of Swingline Advances then outstanding.
Such request shall be deemed to be a Notice of Borrowing for purposes hereof and
shall be made in accordance with the provisions of Section 2.02(a) without
regard solely to the minimum amounts specified therein but subject to the
satisfaction of the conditions set forth in Section 3.02. The Swingline Bank
shall furnish the Borrower with a copy of the applicable Notice of Borrowing
promptly after delivering such notice to the Administrative Agent. Each
Revolving Credit Lender shall make an amount equal to its Pro Rata Share of the
amount specified in such Notice of Borrowing available for the account of its
Applicable Lending Office to the Administrative Agent for the account of the
Swingline Bank, by deposit to the Administrative Agent's Account, in same date
funds, not later than 11:00 A.M. on the day specified in such Notice of
Borrowing.
(iii) If for any reason any Swingline Advance cannot be refinanced by
a Revolving Credit Borrowing as contemplated by Section 2.02(c)(ii), the request
for Base Rate Advances submitted by the Swingline Bank as set forth in Section
2.02(c)(ii) shall be deemed to be a request by the Swingline Bank that each of
the Revolving Credit Lenders fund its risk participation in the relevant
Swingline Advance and each Revolving Credit Lender's payment to the
Administrative Agent for the account of the Swingline Bank pursuant to Section
2.02(c)(ii) shall be deemed payment in respect of such participation.
(iv) If and to the extent that any Revolving Credit Lender shall not
have made the amount of its Pro Rata Share of such Swingline Advance available
to the Administrative Agent in accordance with the provisions of Section
2.02(c)(ii), such Revolving Credit Lender agrees to pay to the Administrative
Agent forthwith for the account of the Swingline Bank on demand such amount
together with interest thereon, for each day from the date of the applicable
Notice of Borrowing delivered by the Swingline Bank until the date such amount
is paid to the Administrative Agent, at the Federal Funds Rate.
(v) Each Revolving Credit Lender's obligation to make Revolving Credit
Advances or to purchase and fund risk participations in Swingline Advance
pursuant to this Section 2.02(c) shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the
Swingline Bank, the Borrower or any other Person for any reason whatsoever, (B)
the occurrence of continuance of a Default, or (C) any other occurrence, event
or condition, whether or not similar to any of the foregoing; provided, however,
that each Revolving Credit Lender's obligation to make Revolving Credit Advances
pursuant to Section 2.02(c) is subject to satisfaction of the conditions set
forth in Section 3.02. No funding of risk participations shall relieve or
otherwise impair the obligation of the Borrower to repay Swingline Advances,
together with interest as provided herein.
(d) Each Notice of Borrowing and each Swingline Notice of Borrowing
shall be irrevocable and binding on the Borrower. In the case of any Borrowing
that the related Notice of Borrowing specifies is to be comprised of Eurodollar
Rate Advances, the Borrower shall indemnify each Appropriate Lender against any
loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of Borrowing for such
Borrowing the applicable conditions set forth in Article III, including, without
limitation, any loss (including loss of anticipated
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profits), cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund the Advance to be
made by such Lender as part of such Borrowing when such Advance, as a result of
such failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice from an
Appropriate Lender prior to the date of any Borrowing under a Facility under
which such Lender has a Commitment that such Lender will not make available to
the Administrative Agent such Lender's ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) of this Section 2.02 and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Administrative Agent, such Lender and
the Borrower severally agree to repay or pay to the Administrative Agent
forthwith on demand such corresponding amount and to pay interest thereon, for
each day from the date such amount is made available to the Borrower until the
date such amount is repaid or paid to the Administrative Agent, at (i) in the
case of the Borrower, the interest rate applicable at such time under Section
2.07 to Advances comprising such Borrowing and (ii) in the case of such Lender,
the Federal Funds Rate. If such Lender shall pay to the Administrative Agent
such corresponding amount, such amount so paid shall constitute such Lender's
Advance as part of such Borrowing for all purposes.
(f) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 1:00 P.M. (New York City time) on the
fifth Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower to the Issuing Bank, which shall give to the
Administrative Agent and each Revolving Credit Lender prompt notice thereof by
telecopier. Each such notice of issuance of a Letter of Credit (a "NOTICE OF
ISSUANCE") may be by either telephone (confirmed promptly in writing) or
telecopier, in each case specifying therein the requested (A) date of such
issuance (which shall be a Business Day), (B) Available Amount of such Letter of
Credit, (C) expiration date of such Letter of Credit, (D) name and address of
the beneficiary of such Letter of Credit and (E) form of such Letter of Credit,
and shall be accompanied by such application and agreement for letter of credit
as the Issuing Bank may specify to the Borrower for use in connection with such
requested Letter of Credit (a "LETTER OF CREDIT AGREEMENT"). If (x) the
requested form of such Letter of Credit is acceptable to the Issuing Bank in its
reasonable discretion and (y) it has not received notice of objection to such
issuance from the Required Lenders (a copy of which shall be provided to the
Borrower), the Issuing Bank will, upon fulfillment of the applicable conditions
set forth in Article III, make such Letter of Credit available to the Borrower
at its office referred to in Section 9.02 or as otherwise agreed with the
Borrower in connection with such issuance. In the event and to the extent that
the provisions of any Letter of Credit Agreement shall conflict with this
Agreement, the provisions of this Agreement shall govern.
(b) Letter of Credit Reports. If the Issuing Bank is not also the
Administrative Agent, the Issuing Bank shall furnish to the Administrative Agent
and each Revolving Credit Lender on the first Business Day of each calendar
quarter a written report setting forth the average daily aggregate Available
Amount during the preceding calendar quarter of all Letters of Credit issued by
the Issuing Bank.
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29
(c) Participations in Letters of Credit. Upon the issuance of a Letter
of Credit by the Issuing Bank under Section 2.03(a), the Issuing Bank shall be
deemed, without further action by any party hereto, to have sold to each
Revolving Credit Lender, and each such Revolving Credit Lender shall be deemed,
without further action by any party hereto, to have purchased from the Issuing
Bank, a participation in such Letter of Credit in an amount for each Revolving
Credit Lender equal to such Lender's Pro Rata Share of the Available Amount of
such Letter of Credit, effective upon the issuance of such Letter of Credit. In
consideration and in furtherance of the foregoing, each Revolving Credit Lender
hereby absolutely and unconditionally agrees to pay, upon one Business Day
following the issuance of written notice by the Issuing Bank, such Lender's Pro
Rata Share of each L/C Disbursement made by the Issuing Bank and not reimbursed
by the Borrower forthwith on the date due as provided in Section 2.04(c) by
making available for the account of its Applicable Lending Office to the
Administrative Agent for the account of the Issuing Bank by deposit to the
Administrative Agent's Account, in same day funds, an amount equal to such
Lender's Pro Rata Share of such L/C Disbursement. Each Revolving Credit Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this Section 2.03(c) in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or an Event of Default or
the termination of the Commitments, and that each such payment shall be made
without any off-set, abatement, withholding or reduction whatsoever. If and to
the extent that any Revolving Credit Lender shall not have so made its Pro Rata
Share of the amount of such L/C Disbursement available to the Administrative
Agent, such Revolving Credit Lender agrees to pay to the Administrative Agent
forthwith on demand such amount together with interest thereon, for each day
from the date such L/C Disbursement is due pursuant to Section 2.04(c) until the
date such amount is paid to the Administrative Agent, at the Federal Funds Rate
for its account or the account of such Issuing Bank, as applicable. If such
Lender shall pay to the Administrative Agent its Pro Rata Share of the amount of
such L/C Disbursement, plus any applicable interest, for the account of such
Issuing Bank on any Business Day, such amount so paid in respect of principal
shall constitute a Letter of Credit Advance made by such Lender on such Business
Day for purposes of this Agreement, and the outstanding principal amount of the
Letter of Credit Advance made by the Issuing Bank shall be reduced by such
amount on such Business Day.
(d) Drawing and Reimbursement. The payment by the Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by the Issuing Bank of a Letter of Credit Advance, which
shall be a Base Rate Advance, in the amount of such draft.
(e) Failure to Make Letter of Credit Advances. The failure of any
Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
SECTION 2.04. Repayment of Advances. (a) Revolving Credit
Advances. The Borrower shall repay to the Administrative Agent for the ratable
account of the Revolving Credit Lenders on the Termination Date the aggregate
principal amount of the Revolving Credit Advances then outstanding.
(b) Swingline Advances. The Borrower shall repay to the Swingline Bank
and each other Revolving Credit Lender that has purchased from the Swingline
Bank a risk participation in any Swingline Advance the outstanding principal
amount of each Swingline Advance made or purchased by each of them on the
earlier of the maturity date specified in the applicable Notice of Swingline
Borrowing (which maturity shall be no later than the tenth Business Day after
the requested date of such Borrowing) and the Termination Date.
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(c) Letter of Credit Advances. (i) The Borrower shall repay to the
Administrative Agent for the account of the Issuing Bank and each other
Revolving Credit Lender that has made a Letter of Credit Advance on the earlier
of one Business Day following demand and the Termination Date the outstanding
principal amount of each Letter of Credit Advance made by each of them.
(ii) The Obligations of the Borrower under this Agreement, any Letter
of Credit Agreement and any other agreement or instrument relating to any Letter
of Credit shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement, such Letter of Credit Agreement and
such other agreement or instrument under all circumstances, including, without
limitation, the following circumstances (it being understood that any such
payment by the Borrower is without prejudice to, and does not constitute a
waiver of, any rights the Borrower might have or might acquire as a result of
the payment by any Issuing Bank of any draft or the reimbursement by the
Borrower thereof):
(A) any lack of validity or enforceability of any Loan Document, any
Letter of Credit Agreement, any Letter of Credit or any other agreement or
instrument relating thereto (all of the foregoing being, collectively, the
"L/C RELATED DOCUMENTS");
(B) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the Borrower in respect of
any L/C Related Document or any other amendment or waiver of or any consent
to departure from all or any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other right that
the Borrower may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any Persons for which any such beneficiary or any
such transferee may be acting), the Issuing Bank or any other Person,
whether in connection with the transactions contemplated by the L/C Related
Documents or any unrelated transaction;
(D) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect;
(E) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft, certificate or other document that does not
strictly comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any Collateral or other
collateral, or any release or amendment or waiver of or consent to
departure from the Guaranties or any other guarantee, for all or any of the
Obligations of the Borrower in respect of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower or a guarantor except for payment in full under
this Agreement, any such Letter of Credit Agreement or any other such
agreement or instrument, as applicable.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional. The Borrower may, without premium or penalty, upon at least one
Business Day notice in the case of Base Rate Advances and three Business Days'
notice in the case of Eurodollar Rate Advances, in each case to
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
31
the Administrative Agent, terminate in whole or reduce in part the unused
portions of the Swingline Facility, the Letter of Credit Facility and the Unused
Revolving Credit Commitments; provided, however, that each partial reduction of
a Facility (i) shall be in an aggregate amount of $500,000 or an integral
multiple of $250,000 in excess thereof and (ii) shall be made ratably among the
Appropriate Lenders in accordance with their Commitments.
(b) Mandatory. The Letter of Credit Facility shall be permanently
reduced from time to time on the date of each reduction in the Revolving Credit
Facility by the amount, if any, by which the amount of the Letter of Credit
Facility exceeds the Revolving Credit Facility after giving effect to such
reduction of the Revolving Credit Facility
SECTION 2.06. Prepayments. (a) Optional. The Borrower may, upon
at least one Business Day's notice in the case of Base Rate Advances and three
Business Days' notice in the case of Eurodollar Rate Advances, in each case to
the Administrative Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given, the Borrower shall prepay
the outstanding aggregate principal amount of all Advances comprising part of
the same Borrowing in whole or ratably in part, together with accrued interest
to the date of such prepayment on the aggregate principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount of $500,000 or an integral multiple of $250,000 in excess
thereof and (y) if any prepayment of a Eurodollar Rate Advance is made on a date
other than the last day of an Interest Period for such Advance, the Borrower
shall also pay any amounts owing pursuant to Section 9.04(c).
(b) Mandatory. (i) The Borrower shall, not later than five Business
Days following the date of receipt of any Net Cash Proceeds by any Loan Party or
any of its Subsidiaries prepay an aggregate principal amount of the Advances
comprising part of the same Borrowings or, to the extent that no Advances are
outstanding (but Letters of Credit have been issued and are outstanding),
deposit an amount in the Collateral Account in an amount equal to the amount of
such Net Cash Proceeds.
(ii) The Borrower shall, on each Business Day, prepay an aggregate
principal amount of the Revolving Credit Advances comprising part of the same
Borrowings, the Swingline Advances and Letter of Credit Advances in an amount
equal to the amount by which (A) the sum of the aggregate principal amount of
(x) the Revolving Credit Advances, (y) the Swingline Advances and (z) the Letter
of Credit Advances then outstanding plus the aggregate Available Amount of all
Letters of Credit then outstanding exceeds (B) the Revolving Credit Facility, in
each case on such Business Day.
(iii) Prepayments of the Revolving Credit Facility made pursuant to
clause (i) or (ii) above shall be first applied to prepay Letter of Credit
Advances then outstanding until such Advances are paid in full, second applied
to prepay Swingline Advances then outstanding until such Advances are paid in
full and third applied to prepay Revolving Credit Advances then outstanding
comprising part of the same Borrowings until such Advances are paid in full.
(iv) The Borrower shall, on each Business Day, pay to the
Administrative Agent for deposit in the Collateral Account an amount sufficient
to cause the aggregate amount on deposit in the Collateral Account to equal the
amount by which the aggregate Available Amount of all Letters of Credit then
outstanding exceeds the Letter of Credit Facility on such Business Day; provided
that all such amounts shall be released to the Borrower promptly upon the
request of the Borrower after such condition ceases to exist.
(v) All prepayments under this subsection (b) shall be made together
with accrued interest to the date of such prepayment on the principal amount
prepaid, together with any amounts owing pursuant to Section 9.04(c). If any
payment of Eurodollar Rate Advances otherwise required to be made
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
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under this Section 2.06(b) would be made on a day other than the last day of the
applicable Interest Period therefor, and so long as no Default or Event of
Default exists and is continuing, the Borrowers may direct the Administrative
Agent to (and if so directed, the Administrative Agent shall) deposit such
payment in the Collateral Account until the last day of the applicable Interest
Period at which time the Administrative Agent shall apply the amount of such
payment to the prepayment of such Advances; provided, however, that such
Advances shall continue to bear interest as set forth in Section 2.07 until the
last day of the applicable Interest Period therefor.
SECTION 2.07. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a Base
Rate Advance, a rate per annum equal at all times to the sum of (A) the
Base Rate in effect from time to time plus (B) the Applicable Margin,
payable in arrears quarterly on the last Business Day of each March, June,
September and December during such periods and on the date such Base Rate
Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance is
a Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (A) the Eurodollar Rate for
such Interest Period for such Advance plus (B) the Applicable Margin in
effect on the first day of such Interest Period, payable in arrears on the
last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs during such
Interest Period that is three months, or an integral multiple thereof,
after the first day of such Interest Period and on the date such Eurodollar
Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
of an Event of Default the Borrower shall pay interest ("DEFAULT INTEREST") on
(i) the unpaid principal amount of each Advance owing to each Lender Party,
payable in arrears on the dates referred to in clause (i) or (ii) of Section
2.07(a), as applicable, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid on such Advance pursuant to clause
(i) or (ii) of Section 2.07(a), as applicable, and (ii) to the fullest extent
permitted by applicable law, the amount of any interest, fee or other amount
payable under this Agreement or any other Loan Document to any Agent or any
Lender Party that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid, in the case
of interest, on the Type of Advance on which such interest has accrued pursuant
to clause (i) or (ii) of Section 2.07(a), as applicable, and, in all other
cases, on Base Rate Advances under the Revolving Credit Facility pursuant to
clause (i) of Section 2.07(a).
(c) Notice of Interest Period and Interest Rate. Promptly after
receipt of a Notice of Borrowing pursuant to Section 2.02(a), a notice of
Conversion pursuant to Section 2.09 or a notice of selection of an Interest
Period pursuant to the terms of the definition of "Interest Period," the
Administrative Agent shall give notice to the Borrower and each Appropriate
Lender of the applicable Interest Period, if any, and the applicable interest
rate determined by the Administrative Agent for purposes of clause (a)(i) or
(a)(ii) above.
SECTION 2.08. Fees. (a) Commitment Fee. The Borrower shall pay to
the Administrative Agent for the account of the Revolving Credit Lenders a
commitment fee on the Unused Revolving Credit Commitment, from the Effective
Date in the case of each such Initial Lender and from
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the effective date specified in the Assignment and Acceptance pursuant to which
it became a Lender in the case of each other such Lender until the Termination
Date, payable in arrears quarterly on the last Business Day of each March, June,
September and December and on the Termination Date, at the applicable rate per
annum set forth in the definition of Applicable Margin; provided, however, that
any commitment fee accrued with respect to the Unused Revolving Credit
Commitments of a Defaulting Lender during the period prior to the time such
Lender became a Defaulting Lender and unpaid at such time shall not be payable
by the Borrower so long as such Lender shall be a Defaulting Lender except to
the extent that such commitment fee shall otherwise have been due and payable by
the Borrower prior to such time; and provided further that no commitment fee
shall accrue on any of the Unused Revolving Credit Commitments of a Defaulting
Lender so long as such Lender shall be a Defaulting Lender. For purposes of this
Section 2.08(a), Swingline Advances shall not be deemed to be a utilization of
any Lender's Commitment for purposes of calculating the Commitment Fee.
(b) Letter of Credit Fees, Etc. (i) The Borrower shall pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commission, payable in arrears quarterly on the last Business Day of each March,
June, September and December and on the Termination Date, on such Lender's Pro
Rata Share of the average daily aggregate Available Amount during such quarter
of all Letters of Credit outstanding from time to time at a rate per annum equal
to the Applicable Margin for Eurodollar Rate Advances under the Revolving Credit
Facility.
(ii) The Borrower shall pay to each Issuing Bank, for its own account,
in arrears quarterly, on the last Business Day of each March, June, September
and December a fronting fee for each Letter of Credit issued by such Issuing
Bank in an amount equal to 1/4 of 1% of the Available Amount of such Letter of
Credit (but in any event, not less than $500) on the date of issuance of such
Letter of Credit and such other customary fees and commissions as usually
charged for the maintenance, amendment and other administrative tasks relating
to such Letters of Credit.
(c) Administrative Agents' Fees. The Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed in writing between the Borrower and the Administrative Agent.
SECTION 2.09. Conversion of Advances. (a) Optional. The Borrower
may on any Business Day, upon notice given to the Administrative Agent not later
than 1:00 P.M. (New York City time) on the third Business Day prior to the date
of the proposed Conversion and subject to the provisions of Sections 2.07 and
2.10, Convert all or any portion of the Advances of one Type comprising the same
Borrowing into Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b), no
Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(b) and each Conversion of Advances comprising part
of the same Borrowing under any Facility shall be made ratably among the
Appropriate Lenders in accordance with their Commitments under such Facility.
Each such notice of Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances to be Converted and
(iii) if such Conversion is into Eurodollar Rate Advances, the duration of the
initial Interest Period for such Advances. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $2,000,000, such Advances shall
automatically Convert into Base Rate Advances at the end of the Interest Period
thereof.
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(ii) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Appropriate
Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a
Eurodollar Advance having an Interest Period of one month.
(iii) Upon the occurrence and during the continuance of any Event of
Default, upon the request of the Required Lenders, (x) each Eurodollar Rate
Advance will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance and (y) the obligation of the Lenders
to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change 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 (whether or not having the force of law),
after the Closing Date, or, with respect to any Lender after the date such
Lender becomes a party to this Agreement, there shall be any increase in the
cost to any Lender Party of agreeing to make or of making, funding or
maintaining Eurodollar Rate Advances or of agreeing to issue or of issuing or
maintaining or participating in Letters of Credit or of agreeing to make or of
making or maintaining Letter of Credit Advances (excluding, for purposes of this
Section 2.10, any such increased costs resulting from (x) Taxes or Other Taxes
(as to which Section 2.12 shall govern) and (y) changes in the basis of taxation
of overall net income or overall gross income by the United States or by the
foreign jurisdiction or state under the laws of which such Lender Party is
organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, within 10 days after
written demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender Party additional amounts sufficient to compensate such Lender Party for
such increased cost; provided, however, that, before making any such demand,
such Lender agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender. A certificate as to the amount of such increased
cost, submitted to the Borrower by such Lender Party, shall be conclusive and
binding for all purposes, absent manifest error
(b) If, after the Closing Date, or, with respect to any Lender after
the date such Lender becomes a party to this Agreement, due to either (i) the
introduction of any change 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 (whether or not having the force of law) there
shall be any increase in the amount of capital required or expected to be
maintained by such Lender Party as a result of or based upon the existence of
such Lender Party's commitment to lend or to issue or participate in Letters of
Credit hereunder and other commitments of such type or the issuance or
maintenance of or participation in the Letters of Credit (or similar contingent
obligations), then, upon demand by such Lender Party or such corporation (with a
copy of such demand to the Administrative Agent), the Borrower shall pay to the
Administrative Agent for the account of such Lender Party, from time to time as
specified by such Lender Party, additional amounts sufficient to compensate such
Lender Party in the light of such circumstances, to the extent that such Lender
Party reasonably determines such increase in capital to be allocable to the
existence of such Lender Party's commitment to lend or to issue or participate
in Letters of Credit hereunder or to the issuance or maintenance of or
participation in any Letters of Credit. A certificate as to such amounts
submitted to the Borrower by such Lender Party shall be conclusive and binding
for all purposes, absent manifest error.
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(c) If, with respect to any Eurodollar Rate Advances under any
Facility, Lenders owed at least 66% of the then aggregate unpaid principal
amount thereof shall notify the Administrative Agent that the Eurodollar Rate
for any Interest Period for such Advances will not adequately reflect the cost
to such Lenders of making, funding or maintaining their Eurodollar Rate Advances
for such Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the Appropriate Lenders, whereupon (i) each such Eurodollar Rate
Advance under such Facility will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the
obligation of the Appropriate Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrower that such Lenders have determined that the circumstances
causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, (i) each Eurodollar Rate Advance under each
Facility under which such Lender has a Commitment will automatically, upon such
demand, Convert into a Base Rate Advance and (ii) the obligation of the
Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist; provided, however, that, before making any such
demand, such Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.
(e) In the event that any Lender Party demands payment of costs or
additional amounts pursuant to Section 2.10 or Section 2.12 or asserts, pursuant
to Section 2.10(d), that it is unlawful for such Lender Party to make Eurodollar
Rate Advances or becomes a Defaulting Lender then (subject to such Lender
Party's right to rescind such demand or assertion within 10 days after the
notice from the Borrower referred to below) the Borrower may, upon 20 days'
prior written notice to such Lender Party and the Administrative Agent, elect to
cause such Lender Party to assign its Advances and Commitments in full to one or
more Persons selected by the Borrower so long as (a) each such Person satisfies
the criteria of an Eligible Assignee and is reasonably satisfactory to the
Administrative Agent, (b) such Lender Party receives payment in full in cash of
the outstanding principal amount of all Advances made by it and all accrued and
unpaid interest thereon and all other amounts due and payable to such Lender
Party as of the date of such assignment (including, without limitation, amounts
owing pursuant to Sections 2.10, 2.12 and 9.04) and (c) each such Lender Party
assignee agrees to accept such assignment and to assume all obligations of such
Lender Party hereunder in accordance with Section 9.07.
SECTION 2.11. Payments and Computations. (a) The Borrower shall
make each payment hereunder and under the other Loan Documents, irrespective of
any right of counterclaim or set-off (except as otherwise provided in Section
2.15), not later than 1:00 P.M. (New York City time) on the day when due in U.S.
dollars to the Administrative Agent at the Administrative Agent's Account in
same day funds, with payments being received by the Administrative Agent after
such time being deemed to have been received on the next succeeding Business
Day. The Administrative Agent will promptly thereafter cause like funds to be
distributed (i) if such payment by the Borrower is in respect of principal,
interest, commitment fees or any other Obligation then payable hereunder and
under the other Loan Documents to more than one Lender Party, to such Lender
Parties for the account of their respective
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
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Applicable Lending Offices ratably in accordance with the amounts of such
respective Obligations then payable to such Lender Parties and (ii) if such
payment by the Borrower is in respect of any Obligation then payable hereunder
to one Lender Party, to such Lender Party for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 9.07(d),
from and after the effective date of such Assignment and Acceptance, the
Administrative Agent shall make all payments hereunder and under the other Loan
Documents in respect of the interest assigned thereby to the Lender Party
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender Party and each of its
Affiliates, if and to the extent payment owed to such Lender Party is not made
when due hereunder or under the other Loan Documents to charge from time to
time, to the fullest extent permitted by law, against any or all of the
Borrower's accounts with such Lender Party or such Affiliate any amount so due.
(c) All computations of interest based on the Base Rate shall be made
by the Administrative Agent on the basis of a year of 365 or 366 days, as the
case may be, and all computations of interest based on the Eurodollar Rate or
the Federal Funds Rate and of fees and Letter of Credit commissions shall be
made by the Administrative Agent on the basis of a year of 360 days, in each
case for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest, fees or commissions
are payable. Each determination by the Administrative Agent of an interest rate,
fee or commission hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(d) Whenever any payment hereunder or under the other Loan Documents
shall be stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or commitment or
letter of credit fee or commission, as the case may be; provided, however, that,
if such extension would cause payment of interest on or principal of Eurodollar
Rate Advances to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to any Lender Party
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
(f) Whenever any payment received by the Administrative Agent under
this Agreement or any of the other Loan Documents is insufficient to pay in full
all amounts due and payable to the Agents and the Lender Parties under or in
respect of this Agreement and the other Loan Documents on any date, such payment
shall be distributed by the Administrative Agent and applied by the Agents and
the Lender Parties in the following order of priority:
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(i) first, to the payment of all of the fees, indemnification
payments, costs and expenses that are due and payable to the Agents (solely
in their respective capacities as Agents) under or in respect of this
Agreement and the other Loan Documents on such date, ratably based upon the
respective aggregate amounts of all such fees, indemnification payments,
costs and expenses owing to the Agents on such date;
(ii) second, to the payment of all of the fees, indemnification
payments, costs and expenses that are due and payable to the Issuing Bank
(solely in its capacity as such) under or in respect of this Agreement and
the other Loan Documents on such date, ratably based upon the respective
aggregate amounts of all such fees, indemnification payments, costs and
expenses owing to the Issuing Bank;
(iii) third, to the payment of all of the indemnification payments,
costs and expenses that are due and payable to the Lenders under Sections
9.04 hereof, Section 18 of the Security Agreement and any similar section
of any of the other Loan Documents on such date, ratably based upon the
respective aggregate amounts of all such indemnification payments, costs
and expenses owing to the Lenders on such date;
(iv) fourth, to the payment of all of the amounts that are due and
payable to the Administrative Agent and the Lender Parties under Sections
2.10 and 2.12 hereof on such date, ratably based upon the respective
aggregate amounts thereof owing to the Administrative Agent and Lender
Parties on such date;
(v) fifth, to the payment of all of the fees that are due and payable
to the Appropriate Lenders under Section 2.08(a) on such date, ratably
based upon the respective undrawn aggregate Commitments of such Lenders
under the Facilities on such date;
(vi) sixth, to the payment of all of the accrued and unpaid interest
on the Obligations of the Borrower under or in respect of the Loan
Documents that is due and payable to the Agents and the Lender Parties
under Section 2.07(b) on such date, ratably based upon the respective
aggregate amounts of all such interest owing to the Agents and the Lender
Parties on such date;
(vii) seventh, to the payment of all of the accrued and unpaid
interest on the Advances that is due and payable to the Lender Parties
under Section 2.07(a) on such date, ratably based upon the respective
aggregate amounts of all such interest owing to the Lender Parties on such
date;
(viii) eighth, to the payment of the principal amount of all of the
outstanding Advances that is due and payable to the Lender Parties on such
date, ratably based upon the respective aggregate amounts of all such
principal owing to the Administrative Agent and the Lender Parties on such
date; and
(ix) ninth, to the payment of all other Obligations of the Loan
Parties owing under or in respect of the Loan Documents that are due and
payable to the Agents and the other Secured Parties on such date, ratably
based upon the respective aggregate amounts of all such Obligations owing
to the Agents and the other Secured Parties on such date.
If the Administrative Agent receives funds for application to the Obligations of
the Loan Parties under or in respect of the Loan Documents under circumstances
for which the Loan Documents do not specify the Advances or the Facility to
which, or the manner in which, such funds are to be applied, the Administrative
Agent may, but shall not be obligated to, elect to distribute such funds to each
of the
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38
Lender Parties in accordance with such Lender Party's Pro Rata Share of the sum
of (A) the aggregate principal amount of all Advances outstanding at such time
and (b) the aggregate Available Amount of all Letters of Credit outstanding at
such time, in repayment or prepayment of such of the outstanding Advances or
other Obligations then owing to such Lender Party, as the Administrative Agent
shall direct.
SECTION 2.12. Taxes. (a) Any and all payments by any Loan Party
to or for the account of any Lender Party or any Agent hereunder or under any
other Loan Document shall be made, in accordance with Section 2.11 or the
applicable provisions of such other Loan Document, if any, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender Party and each Agent, taxes that are
imposed on its overall net income by the United States and taxes that are
imposed on its overall net income (and franchise taxes imposed in lieu thereof)
by the state or foreign jurisdiction under the laws of which such Lender Party
or such Agent, as the case may be, is organized or any political subdivision
thereof and, in the case of each Lender Party, taxes that are imposed on its
overall net income (and franchise taxes imposed in lieu thereof) by the state or
foreign jurisdiction of such Lender Party's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the other Loan Documents being hereinafter referred to as
"TAXES"). If any Loan Party shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder or under any other Loan Document to any
Lender Party or any Agent, (i) the sum payable by such Loan Party shall be
increased as may be necessary so that after such Loan Party and the
Administrative Agent have made all required deductions (including deductions
applicable to additional sums payable under this Section 2.12) such Lender Party
or such Agent, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) such Loan Party shall make
all such deductions and (iii) such Loan Party shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, each Loan Party shall pay any present or future
stamp, documentary, excise, property, intangible, mortgage recording or similar
taxes, charges or levies that arise from any payment made by such Loan Party
hereunder or under any other Loan Documents or from the execution, delivery or
registration or recordation of, performance under, or otherwise with respect to,
this Agreement or the other Loan Documents (hereinafter referred to as "OTHER
TAXES").
(c) The Loan Parties shall indemnify each Lender Party and each Agent
for and hold them harmless against the full amount of Taxes and Other Taxes, and
for the full amount of taxes of any kind imposed or asserted by any jurisdiction
on amounts payable under this Section 2.12, imposed on or paid by such Lender
Party or such Agent (as the case may be) and any liability (including penalties,
additions to tax, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within 30 days from the date such
Lender Party or such Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
appropriate Loan Party shall furnish to the Administrative Agent, at its address
referred to in Section 9.02, the original or a certified copy of a receipt
evidencing such payment, to the extent such a receipt is issued therefor, or
other written proof of payment thereof that is reasonably satisfactory to the
Administrative Agent. In the case of any payment hereunder or under the other
Loan Documents by or on behalf of a Loan Party through an account or branch
outside the United States or by or on behalf of a Loan Party by a payor that is
not a United States person, if such Loan Party determines that no Taxes are
payable in respect thereof, such Loan Party shall furnish, or shall cause such
payor to furnish, to the Administrative Agent, at such address, an opinion of
counsel reasonably acceptable to the Administrative Agent stating that such
payment is exempt from Taxes. For purposes of subsections (d) and (e) of this
Section 2.12, the terms
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39
"UNITED STATES" and "UNITED STATES PERSON" shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
(e) Each Lender Party shall provide (i) on or prior to the date of its
execution and delivery of this Agreement in the case of each Initial Lender
Party and on or prior to the date of the Assignment and Acceptance pursuant to
which it becomes a Lender Party in the case of each other Lender Party, to the
Administrative Agent and the Borrower, and (ii) from time to time thereafter as
reasonably requested in writing by any Loan Party or the Administrative Agent
(but only so long thereafter as such Lender Party remains lawfully able to do
so), to each of the Administrative Agent and such Loan Party, two original
Internal Revenue Service Forms W-9, W-8BEN, W-8IMY or W-8ECI, as appropriate, or
any successor or other form prescribed by the Internal Revenue Service,
certifying (except in the case of a Form W-9) that such Lender Party is exempt
from or entitled to a reduced rate of United States withholding tax on payments
pursuant to this Agreement or the other Loan Documents. A Lender Party claiming
exemption from United States withholding tax under Section 871(h) or 881(c) of
the Internal Revenue Code shall at such times provide written certification that
(i) it will not receive payments pursuant to this Agreement or the other Loan
Documents in a capacity as a bank on an extension of credit made by it pursuant
to a loan agreement entered into in the ordinary course of its trade or
business, within the meaning of Section 881(c)(3)(A) of the Internal Revenue
Code, (ii), it is not a 10 percent shareholder (within the meaning of Section
871(h)(3)(B) of the Internal Revenue Code) of any Loan party and (iii) it is not
a controlled foreign corporation related to any Loan Party (within the meaning
of Section 864(d)(4) of the Internal Revenue Code). If the forms and
certifications provided by a Lender Party at the time such Lender Party first
becomes a party to this Agreement indicate a United States interest withholding
tax rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes with respect to such Lender Party unless and until such
Lender Party provides the appropriate forms certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only shall be considered
excluded from Taxes with respect to such Lender Party for periods governed by
such forms, and in such case, notwithstanding any such exclusion of such
withholding taxes from Taxes and from the benefits of subsections (a) and (c) of
this Section 2.12, the relevant Loan Party shall nevertheless remain obligated
to make all deductions and pay the full amount of any such withholding taxes to
the relevant taxing authority or any other authority in accordance with
applicable law and to provide evidence of the payment thereof in accordance with
subsection (d) of this Section 2.12. With respect to any assignee Lender Party,
if, at the date on which such assignee Lender Party becomes a party to this
Agreement, the related assignor Lender Party was entitled to payments under
subsection (a) of this Section 2.12 in respect of United States withholding tax,
then, to such extent such assignee Lender Party shall also be entitled to such
payments after delivery of the forms required under this subsection (e), but
only to the extent such assignee Lender Party is subject to United States
withholding tax; provided, that such assignee Lender Party will remain entitled
to payments related to withholding taxes that may be imposed in the future or
other amounts otherwise includable in Taxes.
(f) If any form or document referred to in this subsection (e) above
requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service Forms W-9, W-8BEN, W-8IMY or W-8ECI or the related certificate
described above, that the applicable Lender Party reasonably considers to be
confidential, such Lender Party shall give notice thereof to the Borrower and
shall not be obligated to include in such form or document such confidential
information.
(g) For any period with respect to which a Lender Party has failed to
provide the Administrative Agent or the relevant Loan Party with the appropriate
form, certificate or other document described in subsection (e) above (other
than if such failure is due to a change in law, or in the interpretation or
application thereof, occurring after the date on which a form, certificate or
other document originally was required to be provided or if such form,
certificate or other document otherwise
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
40
is not required under subsection (e) above), such Lender Party shall not be
entitled to indemnification under subsection (a) or (c) of this Section 2.12
with respect to Taxes imposed by the United States by reason of such failure;
provided, however, that should a Lender Party become subject to Taxes because of
its failure to deliver a form, certificate or other document required hereunder,
the Loan Parties shall take such steps as such Lender Party shall reasonably
request to assist such Lender Party to recover such Taxes.
SECTION 2.13. Sharing of Payments, Etc. If any Lender Party shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise, other than as a result of an
assignment pursuant to Section 9.07) (a) on account of Obligations due and
payable to such Lender Party hereunder and under the other Loan Documents at
such time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations due and payable to such Lender Party at such time to
(ii) the aggregate amount of the Obligations due and payable to all Lender
Parties hereunder and under the other Loan Documents at such time) of payments
on account of the Obligations due and payable to all Lender Parties hereunder
and under the other Loan Documents at such time obtained by all the Lender
Parties at such time or (b) on account of Obligations owing (but not due and
payable) to such Lender Party hereunder and under the other Loan Documents at
such time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations owing to such Lender Party at such time to (ii) the
aggregate amount of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the other Loan Documents at such time) of
payments on account of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the other Loan Documents at such time
obtained by all of the Lender Parties at such time, such Lender Party shall
forthwith purchase from the other Lender Parties such interests or participating
interests in the Obligations due and payable or owing to them, as the case may
be, as shall be necessary to cause such purchasing Lender Party to share the
excess payment ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Lender Party, such purchase from each other Lender Party shall be rescinded and
such other Lender Party shall repay to the purchasing Lender Party the purchase
price to the extent of such Lender Party's ratable share (according to the
proportion of (i) the purchase price paid to such Lender Party to (ii) the
aggregate purchase price paid to all Lender Parties) of such recovery together
with an amount equal to such Lender Party's ratable share (according to the
proportion of (i) the amount of such other Lender Party's required repayment to
(ii) the total amount so recovered from the purchasing Lender Party) of any
interest or other amount paid or payable by the purchasing Lender Party in
respect of the total amount so recovered; provided further that, so long as the
Obligations under the Loan Documents shall not have been accelerated, any excess
payment received by any Appropriate Lender shall be shared on a pro rata basis
only with other Appropriate Lenders. The Borrower agrees that any Lender Party
so purchasing an interest or participating interest from another Lender Party
pursuant to this Section 2.13 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such interest or participating interest, as the case may be, as fully as if
such Lender Party were the direct creditor of the Borrower in the amount of such
interest or participating interest, as the case may be.
SECTION 2.14. Use of Proceeds. The proceeds of (a) Advances shall
be utilized solely (i) to refinance existing indebtedness, (ii) to finance the
Borrower's and its Subsidiaries' working capital requirements and (iii) for
other general corporate purposes, including acquisitions permitted under Section
5.02(f)(vii).
SECTION 2.15. Defaulting Lenders. (a) In the event that, at any
one time, (i) any Lender Party shall be a Defaulting Lender, (ii) such
Defaulting Lender shall owe a Defaulted Advance to the Borrower, and (iii) the
Borrower shall be required to make any payment hereunder or under any other Loan
Document to or for the account of such Defaulting Lender, then the Borrower may,
so long as no Event of Default shall occur or be continuing at such time and to
the fullest extent permitted
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by applicable law, set off and otherwise apply the Obligation of the Borrower to
make such payment to or for the account of such Defaulting Lender against the
obligation of such Defaulting Lender to make such Defaulted Advance. In the
event that, on any date, the Borrower shall so set off and otherwise apply its
obligation to make any such payment against the obligation of such Defaulting
Lender to make any such Defaulted Advance on or prior to such date, the amount
so set off and otherwise applied by the Borrower shall constitute for all
purposes of this Agreement and the other Loan Documents an Advance by such
Defaulting Lender made on the date of such setoff under the Facility pursuant to
which such Defaulted Advance was originally required to have been made pursuant
to Section 2.01. Such Advance shall be considered, for all purposes of this
Agreement, to comprise part of the Borrowing in connection with which such
Defaulted Advance was originally required to have been made pursuant to Section
2.01, even if the other Advances comprising such Borrowing shall be Eurodollar
Rate Advances on the date such Advance is deemed to be made pursuant to this
subsection (a). The Borrower shall notify the Administrative Agent at any time
the Borrower exercises its right of set-off pursuant to this subsection (a) and
shall set forth in such notice (A) the name of the Defaulting Lender and the
Defaulted Advance required to be made by such Defaulting Lender and (B) the
amount set off and otherwise applied in respect of such Defaulted Advance
pursuant to this subsection (a). Any portion of such payment otherwise required
to be made by the Borrower to or for the account of such Defaulting Lender which
is paid by the Borrower, after giving effect to the amount set off and otherwise
applied by the Borrower pursuant to this subsection (a), shall be applied by the
Administrative Agent as specified in subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party shall be
a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
any Agent or any of the other Lender Parties and (iii) the Borrower shall make
any payment hereunder or under any other Loan Document to the Administrative
Agent for the account of such Defaulting Lender, then the Administrative Agent
may, on its behalf or on behalf of such other Agents or such other Lender
Parties and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent required to
pay such Defaulted Amount. In the event that the Administrative Agent shall so
apply any such amount to the payment of any such Defaulted Amount on any date,
the amount so applied by the Administrative Agent shall constitute for all
purposes of this Agreement and the other Loan Documents payment, to such extent,
of such Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Agents or such other
Lender Parties, ratably in accordance with the respective portions of such
Defaulted Amounts payable at such time to the Administrative Agent, such other
Agents and such other Lender Parties and, if the amount of such payment made by
the Borrower shall at such time be insufficient to pay all Defaulted Amounts
owing at such time to the Administrative Agent, such other Agents and such other
Lender Parties, in the following order of priority:
(i) first, to the Agents for any Defaulted Amounts then owing to them,
in their capacities as such, ratably in accordance with such respective
Defaulted Amounts then owing to the Agents;
(ii) second, to the Issuing Bank for any Defaulted Amounts then owing
to it, in its capacity as such; and
(iii) third, to any other Lender Parties for any Defaulted Amounts
then owing to such other Lender Parties, ratably in accordance with such
respective Defaulted Amounts then owing to such other Lender Parties.
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Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party shall be
a Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) the Borrower, any Agent or any other
Lender Party shall be required to pay or distribute any amount hereunder or
under any other Loan Document to or for the account of such Defaulting Lender,
then the Borrower or such Agent or such other Lender Party shall pay such amount
to the Administrative Agent to be held by the Administrative Agent, to the
fullest extent permitted by applicable law, in escrow or the Administrative
Agent shall, to the fullest extent permitted by applicable law, hold in escrow
such amount otherwise held by it. Any funds held by the Administrative Agent in
escrow under this subsection (c) shall be deposited by the Administrative Agent
in an account with a bank (the "ESCROW BANK") selected by the Administrative
Agent, in the name and under the control of the Administrative Agent, but
subject to the provisions of this subsection (c). The terms applicable to such
account, including the rate of interest payable with respect to the credit
balance of such account from time to time, shall be the Escrow Bank's standard
terms applicable to escrow accounts maintained with it. Any interest credited to
such account from time to time shall be held by the Administrative Agent in
escrow under, and applied by the Administrative Agent from time to time in
accordance with the provisions of, this subsection (c). The Administrative Agent
shall, to the fullest extent permitted by applicable law, apply all funds so
held in escrow from time to time to the extent necessary to make any Advances
required to be made by such Defaulting Lender and to pay any amount payable by
such Defaulting Lender hereunder and under the other Loan Documents to the
Administrative Agent or any other Lender Party, as and when such Advances or
amounts are required to be made or paid and, if the amount so held in escrow
shall at any time be insufficient to make and pay all such Advances and amounts
required to be made or paid at such time, in the following order of priority:
(i) first, to the Agents for any amounts then due and payable by such
Defaulting Lender to them hereunder, in their capacities as such, ratably
in accordance with such respective amounts then due and payable to the
Agents;
(ii) second, to the Issuing Bank for any amounts then due and payable
to it hereunder, in its capacity as such, by such Defaulting Lender;
(iii) third, to any other Lender Parties for any amount then due and
payable by such Defaulting Lender to such other Lender Parties hereunder,
ratably in accordance with such respective amounts then due and payable to
such other Lender Parties; and
(iv) fourth, to the Borrower for any Advance then required to be made
by such Defaulting Lender pursuant to a Commitment of such Defaulting
Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.15 are in addition to other rights and remedies that the Borrower may
have against such Defaulting Lender with
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respect to any Defaulted Advance and that any Agent or any Lender Party may have
against such Defaulting Lender with respect to any Defaulted Amount.
SECTION 2.16. Evidence of Debt. (a) Each Lender Party shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Advance
owing to such Lender Party from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder. The
Borrower agrees that upon notice by any Lender Party to the Borrower (with a
copy of such notice to the Administrative Agent) to the effect that a promissory
note or other evidence of indebtedness is required or appropriate in order for
such Lender Party to evidence (whether for purposes of pledge, enforcement or
otherwise) the Advances owing to, or to be made by, such Lender Party, the
Borrower shall promptly execute and deliver to such Lender Party, with a copy to
the Administrative Agent, a Revolving Credit Note, in substantially the form of
Exhibit A hereto, payable to the order of such Lender Party in a principal
amount equal to the Revolving Credit Commitment, of such Lender Party. All
references to Notes in the Loan Documents shall mean Notes, if any, to the
extent issued hereunder.
(b) The Register maintained by the Administrative Agent pursuant to
Section 9.07(d) shall include a control account, and a subsidiary account for
each Lender Party, in which accounts (taken together) shall be recorded (i) the
date and amount of each Borrowing made hereunder, the Type of Advances
comprising such Borrowing and, if appropriate, the Interest Period applicable
thereto, (ii) the terms of each Assignment and Acceptance delivered to and
accepted by it, (iii) the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender Party hereunder, and
(iv) the amount of any sum received by the Administrative Agent from the
Borrower hereunder and each Lender Party's share thereof.
(c) Entries made in good faith by the Administrative Agent in the
Register pursuant to subsection (b) above, and by each Lender Party in its
account or accounts pursuant to subsection (a) above, shall be prima facie
evidence of the amount of principal and interest due and payable or to become
due and payable from the Borrower to, in the case of the Register, each Lender
Party and, in the case of such account or accounts, such Lender Party, under
this Agreement, absent manifest error; provided, however, that the failure of
the Administrative Agent or such Lender Party to make an entry, or any finding
that an entry is incorrect, in the Register or such account or accounts shall
not limit or otherwise affect the obligations of the Borrower under this
Agreement.
SECTION 2.17. Increase in Revolving Credit Facility. (a)
Increased Commitments. At any time following the completion of the syndication
of the Facilities (as reasonably determined by the Administrative Agent), the
Borrower may by written notice to the Administrative Agent elect to request an
increase to the existing Revolving Credit Commitments (any such increase, the
"INCREASED COMMITMENTS"), by an amount not in excess of $100,000,000 in the
aggregate or a lesser amount in integral multiples of $10,000,000 (any such
incremental facility the "INCREASED REVOLVING CREDIT FACILITY"). Each notice
shall (A) specify the date (an "INCREASED AMOUNT DATE") on which the Borrower
proposes that the Increased Commitments be made available, which shall be a date
not less than 5 Business Days after the date on which such notice is delivered
to the Administrative Agent, and (B) offer each Revolving Credit Lender the
right to increase its Revolving Credit Commitment on a pro rata basis. The
Borrower shall notify the Administrative Agent in writing of the identity of
each Revolving Credit Lender or other financial institution reasonably
acceptable to the Administrative Agent (each, an "INCREASING REVOLVING CREDIT
LENDER") to whom the Increased Commitments have been allocated and the amounts
of such allocations; provided that any Lender approached to provide all or a
portion of the Increased Commitments may elect or decline, in its sole
discretion, to provide an Increased Commitment; provided further that (1) no
Default or Event of Default shall exist on such Increased Amount Date before or
after giving effect to such Increased Commitments and Loans and (2) if the
Administrative Agent shall
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so request, such increase shall be evidenced by one or more joinder agreements
executed and delivered to Administrative Agent by each Increasing Revolving
Credit Lender, each of which shall be reasonably satisfactory to the
Administrative Agent and subject to the requirements set forth in Section
2.12(e) and each shall be recorded in the Register. The interest rates
applicable to any Increased Commitments shall be the same as the rate then in
effect for the existing Revolving Credit Commitments.
(b) On any Increased Amount Date on which Increased Commitments are
effected, subject to the satisfaction of the foregoing terms and conditions, (i)
each of the existing Revolving Credit Lenders shall assign to each of the
Increasing Revolving Credit Lenders, and each of the Increasing Revolving Credit
Lenders shall purchase from each of the existing Revolving Credit Lenders, at
the principal amount thereof, such interests in the outstanding Revolving Credit
Loans and participations in Letters of Credit and Swingline Loans outstanding on
such Increased Amount Date that will result in, after giving effect to all such
assignments and purchases, such Revolving Credit Loans and participations in
Letters of Credit and Swingline Loans being held by existing Revolving Credit
Lenders and Increasing Revolving Credit Lenders ratably in accordance with their
Revolving Credit Commitments after giving effect to the addition of such
Increased Commitments to the Revolving Credit Commitments, (ii) each Increased
Commitment shall be deemed for all purposes a Revolving Credit Commitment and
each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit
Loan and have the same terms as any existing Revolving Credit Loan and (iii)
each Increasing Revolving Credit Lender shall become a Lender with respect to
the Revolving Credit Commitments and all matters relating thereto.
(c) The Administrative Agent shall notify the Lenders promptly upon
receipt of the Borrower's notice of an Increased Amount Date and, in respect
thereof, the Increased Commitments and the Increasing Revolving Credit Lenders.
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of
Credit. Section 2.01 of this Agreement shall become effective on and as of the
first date (the "EFFECTIVE DATE") on which the following conditions have been
satisfied and the obligation of each Lender to make an Advance or of the Issuing
Bank to issue a Letter of Credit on the Effective Date is subject to the
satisfaction or waiver of such conditions precedent before or concurrently with
the Effective Date:
(a) The Administrative Agent shall have received on or before the
Effective Date the following, each dated such day (unless otherwise
specified), in form and substance reasonably satisfactory to the
Administrative Agent (unless otherwise specified) and (except for the
Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of the Lenders to the
extent requested by the Lenders pursuant to the terms of Section
2.16.
(ii) Supplements to the Security Agreement in substantially
the form of Exhibit D hereto, duly executed by each Subsidiary
Guarantor (to the extent not previously delivered to the
Administrative Agent):
(A) certificates, if any, representing the Pledged
Equity referred to therein accompanied by undated stock
powers executed in blank and instruments evidencing the
Pledged Debt indorsed in blank,
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(B) proper financing statements in form appropriate for
filing under the Uniform Commercial Code of all
jurisdictions that the Administrative Agent may reasonably
deem necessary or desirable in order to perfect and protect
the first priority liens and security interests created
under the Security Agreement, covering the Collateral
described in the Security Agreement,
(C) completed requests for information, dated on or
before the Effective Date, listing all effective financing
statements filed in the jurisdictions referred to in clause
(B) above that name any Loan Party as debtor, together with
copies of such other financing statements,
(D) evidence of the completion of all other Uniform
Commercial Code recordings and filings of or with respect to
the Security Agreement that the Administrative Agent may
deem reasonably necessary or desirable in order to perfect
and protect the security interest created thereunder, and
(E) evidence that all other action that the
Administrative Agent may reasonably deem necessary or
desirable in order to perfect and protect the first priority
liens and security interests created under the Security
Agreement has been taken (including receipt of duly executed
payoff letters and UCC-3 termination statements), which
request shall (i) have been made within reasonable time
prior to the Closing Date and (ii) absent an Event of
Default, shall be limited to filing of UCC-1 financing
statements and delivery of (A) certificates representing
Equity Interests, accompanied by undated stock powers for
such certificates indorsed in blank and (B) instruments
representing Pledged Debt and note powers indorsed in blank,
and otherwise on terms consistent with the Security
Agreement.
(iii) Certified copies of the resolutions of the board of
directors (or similar governing body) of each Loan Party
approving the Transaction and each Loan Document to which it is
or is to be a party, and of all documents evidencing other
necessary corporate (or limited liability company) action and
governmental and other material third party approvals and
consents, if any, with respect to the Transaction and each Loan
Document to which it is or is to be a party.
(iv) A copy of a certificate of the Secretary of State of
the jurisdiction of incorporation or formation, as applicable, of
each Loan Party, dated reasonably near the date of the Initial
Extension of Credit, certifying (A) as to a true and correct copy
of the charter of such Loan Party and each amendment thereto on
file in such Secretary's office and (B) that (1) such amendments
are the only amendments to such Loan Party's charter on file in
such Secretary's office, (2) such Loan Party has paid all
franchise taxes to the date of such certificate and (3) such Loan
Party is duly incorporated or formed, as applicable, and in good
standing or presently subsisting under the laws of the State of
the jurisdiction of its incorporation or formation, as
applicable.
(v) A certificate of each Loan Party, signed on behalf of
such Loan Party by its President or a Vice President and its
Secretary, dated the date of the Initial Extension of Credit (the
statements made in which certificate shall be true on and as of
the date of the Initial Extension of Credit), certifying as to
(A) the absence of any amendments to the charter of such Loan
Party since the date of the Secretary of State's certificate
referred to in Section 3.01(a)(iv), (B) a true and correct copy
of the bylaws (or other applicable
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formation documents) of such Loan Party as in effect on the date
on which the resolutions referred to in Section 3.01(a)(iii) were
adopted and on the date of the Initial Extension of Credit, (C)
the due incorporation (or formation) and good standing or valid
existence of such Loan Party as a corporation organized (or, in
the case of a limited liability company, formed) under the laws
of the jurisdiction of its incorporation (or formation) and the
absence of any proceeding for the dissolution or liquidation of
such Loan Party, (D) the truth in all material respects of the
representations and warranties contained in the Loan Documents as
though made on and as of the date of the Initial Extension of
Credit and (E) the absence of any event occurring and continuing,
or resulting from the Initial Extension of Credit, that
constitutes a Default.
(vi) A certificate of the Secretary of each Loan Party
certifying the names and true signatures of the officers of such
Loan Party authorized to sign each Loan Document to which it is
or is to be a party and the other documents to be delivered
hereunder and thereunder.
(vii) Certificates, in substantially the form of Exhibit F
hereto, attesting to the Solvency of the Loan Parties, taken as a
whole from the chief financial officer of the Borrower.
(viii) (A) unaudited Consolidated financial statements of
the Borrower and its Subsidiaries for the Fiscal Year ended June
30, 2006 in form and substance reasonably satisfactory to the
Administrative Agent and the Initial Lenders and prepared in
accordance with GAAP; (B) a pro forma quarterly budget for the
Fiscal Year ending June 30, 2007 including an income statement,
balance sheet and cash flow statement itemizing product lines and
capital expenditures, (C) forecasts prepared by management of the
Borrower, each in form reasonably satisfactory to the
Administrative Agent and the Initial Lenders, of balance sheets,
income statements and cash flow statements for the four Fiscal
Years following the Fiscal Year ending June 30, 2007; and (D) a
written certification from the chief financial officer of the
Borrower that (1) after giving effect to the Product Acquisition,
the pro forma Consolidated EBITDA of the Borrower and its
Subsidiaries for the twelve months ended June 30, 2006 was not
less than $85,000,000, (2) the pro forma Leverage Ratio as of
June 30, 2006 of the Borrower and its Subsidiaries (which pro
forma ratio shall be calculated in a manner acceptable to the
Administrative Agent, with such adjustments as are acceptable to
the Administrative Agent) was not greater than 3.50 to 1.00 and
(3) the pro forma unaudited financial statements delivered
pursuant to clause (A) above and the budget and forecasts
heretofore delivered to the Administrative Agent and delivered
pursuant to clauses (B) and (C) above were prepared in good faith
on the basis of the assumptions stated therein, which assumptions
are fair in light of then existing conditions.
(ix) The Administrative Agent shall be reasonably satisfied
with the amount, types and conditions of all insurance maintained
by the Borrower and the Subsidiaries and the Administrative Agent
shall have received evidence of insurance naming the Collateral
Agent as additional insured or loss payee, as the case may be,
under all insurance policies to be maintained with respect to the
properties of the Borrower and the Subsidiaries forming part of
the Collateral.
(x) A Notice of Borrowing relating to the Initial Extension
of Credit.
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(xi) A satisfactory opinion of ▇▇▇▇▇▇ & Bird LLP, counsel
for the Loan Parties, in substantially the form of Exhibit I
hereto and as to such other matters as any Lender Party through
the Administrative Agent may reasonably request.
(b) The Administrative Agent shall be satisfied that all Existing
Debt, other than Surviving Debt, has been prepaid, redeemed or
defeased in full or otherwise satisfied and extinguished and all
commitments relating thereto terminated and that all Surviving Debt
shall be in an amount and on terms and conditions reasonably
satisfactory to the Administrative Agent.
(c) All reasonable accrued and invoiced out-of-pocket fees and
expenses (including the reasonable fees and expenses of counsel to the
Lead Arranger and the Administrative Agent and local counsel to the
Agents) and all fees required to be paid under the Fee Letter of the
Lead Arranger and the Administrative Agent in connection with the Loan
Documents shall have been paid in full.
(d) The Administrative Agent shall have received such other
approvals, opinions or documents as any Appropriate Lender, acting
through the Administrative Agent, may reasonably request.
SECTION 3.02. Conditions Precedent to Each Borrowing and
Issuance. The obligation of each Appropriate Lender to make an Advance (other
than a Letter of Credit Advance made by the Issuing Bank or a Revolving Credit
Lender pursuant to Section 2.03(c)) on the occasion of each Borrowing (including
the initial Borrowing), and the obligation of the Issuing Bank to issue a Letter
of Credit (including the initial issuance), shall be subject to the further
conditions precedent that on the date of such Borrowing or issuance the
following statements shall be true and the Administrative Agent shall have
received for the account of such Lender or such Issuing Bank a certificate
signed by a Responsible Officer of the Borrower, dated the date of such
Borrowing or issuance, stating that:
(a) the representations and warranties contained in each Loan
Document are true and correct in all material respects on and as of
such date, before and after giving effect to such Borrowing or
issuance or renewal and to the application of the proceeds therefrom,
as though made on and as of such date, other than any such
representations or warranties that, by their terms, refer to a
specific date other than the date of such Borrowing or issuance, in
which case as of such specific date; and
(b) no Default has occurred and is continuing, or would result
from such Borrowing or issuance or from the application of the
proceeds therefrom.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Effective Date specifying its objection thereto and, if the
Initial Extension of Credit consists of a Borrowing, such Lender Party shall not
have made available to the Administrative Agent such Lender Party's ratable
portion of such Borrowing.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Loan Parties. Each
Loan Party represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries (i) is a corporation,
limited liability company or limited partnership duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
formation, (ii) is duly qualified and in good standing as a foreign corporation
or company in each other jurisdiction in which it owns or leases property or in
which the conduct of its business requires it to so qualify or be licensed,
except where the failure to so qualify or be licensed could not be reasonably
expected to have a Material Adverse Effect and (iii) has all requisite
corporate, limited liability company or partnership (as applicable) power and
authority (including, without limitation, all Governmental Authorizations) to
own or lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted, except where the lack of which could
not reasonably be expected to have a Material Adverse Effect.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate
list as of the date hereof of all Subsidiaries of each Loan Party, showing as of
the date hereof (as to each such Subsidiary) the jurisdiction of its formation,
the number of shares, membership interests or partnership interests (as
applicable) of each class of its Equity Interests authorized, and the number
outstanding, on the date hereof and the percentage of each such class of its
Equity Interests owned (directly or indirectly) by such Loan Party on the date
hereof and the number of shares covered by all outstanding options, warrants,
rights of conversion or purchase and similar rights at the date hereof. All of
the outstanding Equity Interests in each Loan Party's Subsidiaries have been
validly issued, are fully paid and non-assessable and are owned by such Loan
Party or one or more of its Subsidiaries free and clear of all Liens.
(c) The execution, delivery and performance by each Loan Party of each
Loan Document to which it is or is to be a party, and the consummation of the
Transaction, are within such Loan Party's corporate, limited liability company
or limited partnership (as applicable) powers, have been duly authorized by all
necessary corporate, limited liability company or limited partnership (as
applicable) action, and do not (i) contravene such Loan Party's charter, bylaws,
limited liability agreement, partnership agreement or other constituent
documents, (ii) violate any law, rule, regulation (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination or award,
except for any such violation that could not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, (iii)
conflict with, in any material respect, or result in the material breach of, or
constitute a material default or require any payment to be made under, any
contract, loan agreement, indenture, mortgage, deed of trust, lease or other
instrument binding on or affecting any Loan Party, any of its Subsidiaries or
any of their properties, except for any such conflict, breach, default or
required payment that could not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, or (iv) except for the
Liens created under the Loan Documents, result in or require the creation or
imposition of any Lien upon or with respect to any of the properties of any Loan
Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in
violation of any such law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award or in breach of any such contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument, the
violation or breach of which could be reasonably likely to have a Material
Adverse Effect.
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(d) No Governmental Authorization, and no notice to or filing with, or
consent of any Governmental Authority or any other third party is required for
(i) the grant by any Loan Party of the Liens granted by it pursuant to the
Collateral Documents, (ii) the perfection or maintenance of the Liens created
under the Collateral Documents (including the first priority nature thereof) or
(iii) the exercise by any Agent or any Lender Party of its rights under the Loan
Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents, except for the authorizations, approvals, actions, notices
and filings specifically contemplated by the Collateral Documents or listed on
Schedule 4.01(d) or Schedule 5.01(k) hereto, all of which have been, or shall be
within the time specified therefor on Schedule 5.01(k), duly obtained, taken,
given or made and are, or shall be within the time specified therefor on
Schedule 5.01(k), in full force and effect; provided, however, that the
representation in clauses (ii) and (iii) shall apply only to the extent of
actions required to be taken under the Loan Documents.
(e) This Agreement has been, and each other Loan Document when
delivered hereunder will have been, duly executed and delivered by each Loan
Party that is a party thereto. This Agreement is, and each other Loan Document
when delivered hereunder will be, the legal, valid and binding obligation of
each Loan Party that is a party thereto, enforceable against such Loan Party in
accordance with its terms.
(f) There is no action, suit, investigation, litigation or proceeding
affecting any Loan Party or any of its Subsidiaries, including any Environmental
Action, pending or, to the knowledge of any Loan Party, threatened before any
Governmental Authority or arbitrator that (i) would be reasonably likely to have
a Material Adverse Effect or (ii) purports to materially affect the legality,
validity or enforceability of any Loan Document.
(g) The Consolidated balance sheet of the Borrower and its
Subsidiaries as of June 30, 2005, and the related Consolidated statement of
income and Consolidated statement of cash flows of Borrower and its Subsidiaries
for the Fiscal Year then ended, accompanied by an unqualified opinion of the
Borrower's independent public accountants, and the Consolidated balance sheets
of the Borrower and its Subsidiaries as at March 31, 2006, and the related
unaudited Consolidated statement of income and Consolidated statement of cash
flows of the Borrower and its Subsidiaries for the nine months then ended, duly
certified by a Responsible Officer of the Borrower, copies of which have been
furnished to each Lender Party, fairly present in all material respects the
Consolidated financial condition of the Borrower and its Subsidiaries as at such
dates and the Consolidated results of operations of the Borrower and its
Subsidiaries for the periods ended on such dates, all in accordance with GAAP.
Since June 30, 2005, there has been no Material Adverse Change.
(h) The Consolidated pro forma unaudited balance sheet of the Borrower
and its Subsidiaries as of June 30, 2006, and the related Consolidated pro forma
statements of income and cash flows of the Borrower and its Subsidiaries for the
twelve months then ended, certified by a Responsible Officer of the Borrower,
copies of which have been furnished to the Administrative Agent (for
distribution to the Lender Parties), fairly present in all material respects the
Consolidated pro forma financial condition of the Borrower and its Subsidiaries
as at such date and the Consolidated pro forma results of operations of the
Borrower and its Subsidiaries for the period ended on such date all in
accordance with GAAP.
(i) The Consolidated forecasted balance sheet, statements of income
and statements of cash flows of the Borrower and its Subsidiaries and the pro
forma quarterly budget for the Fiscal Year ending June 30, 2007 delivered, or to
be delivered, as the case may be, to the Lender Parties pursuant to Section
3.01(a)(viii)(B) and (C) or 5.03(d) were prepared, or will be prepared, as
applicable, in good faith on the basis of the assumptions stated therein, which
assumptions were fair in light of the
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conditions existing at the time of delivery of such forecasts, and represented,
at the time of delivery, the Borrower's reasonable estimate of its future
financial performance.
(j) Neither the Information Memorandum nor any other information,
exhibit or report furnished by or on behalf of any Loan Party to any Agent or
any Lender Party in connection with the negotiation and syndication of the Loan
Documents or pursuant to the terms of the Loan Documents contained any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements made therein not misleading.
(k) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System),
and no proceeds of any Advance will be used to purchase or carry any margin
stock or to extend credit to others for the purpose of purchasing or carrying
any margin stock.
(l) None of the Loan Parties or any of the Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended. None of the Loan Parties or any of
the Subsidiaries is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended. Neither the making of any Advances, nor the
issuance of any Letters of Credit, nor the application of the proceeds or
repayment thereof by the Borrower, will violate any provision of any such Act or
any rule, regulation or order of the Securities and Exchange Commission
thereunder.
(m) Except to the extent that such filings or other actions are not
required to be taken pursuant to the terms of this Agreement and the Collateral
Documents, all filings and other actions necessary to perfect and protect the
security interest in the Collateral created under the Collateral Documents have
been (or contemporaneously herewith will be) duly made or taken and are (or,
upon making such filings or taking such actions, will be) in full force and
effect, and the Collateral Documents create in favor of the Collateral Agent for
the benefit of the Secured Parties a valid and, together with such filings and
other actions, perfected first priority security interest in the Collateral,
securing the payment of the Secured Obligations. The Loan Parties are the legal
and beneficial owners of the Collateral free and clear of any Lien, except for
Liens created or permitted under Section 5.02(a).
(n) (i) As of the Effective Date, the Borrower is Solvent and (ii) the
Loan Parties, taken as a whole, are solvent.
(o) (i) Set forth on Schedule 4.01(o) hereto is, as of the Effective
Date, a complete and accurate list as of the date hereof of all Plans sponsored
by any Loan Party, Multiemployer Plans contributed to by any Loan Party and
Welfare Plans.
(ii) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan that could reasonably be expected to have a
Material Adverse Effect.
(iii) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) for each Plan, copies of which have been filed
with the Internal Revenue Service and furnished to the Lender Parties, is
complete and accurate and fairly presents in all material respects the
funding status of such Plan, and since the date of such Schedule B there
has been no material adverse change in such funding status.
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(iv) Neither any Loan Party nor any ERISA Affiliate has incurred or
is reasonably expected to incur any Withdrawal Liability to any
Multiemployer Plan that could reasonably be expected to have a Material
Adverse Effect.
(v) Neither any Loan Party nor any ERISA Affiliate has been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of
ERISA, and no such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of ERISA
that could reasonably be expected to have a Material Adverse Effect.
(p) Except as set forth on Schedule 4.01(p) hereto, the operations and
properties of each Loan Party and each of its Subsidiaries comply in all
material respects with all applicable Environmental Laws and Environmental
Permits, all past non-compliance with such Environmental Laws and Environmental
Permits within the last five years, and to Borrower's knowledge prior to that
period, has been resolved or otherwise addressed without ongoing obligations or
costs, and to the Borrower's knowledge no other circumstances exist in each
case, that could be reasonably expected to (A) form the basis of an
Environmental Action against any Loan Party or any of its Subsidiaries or any of
their properties that would reasonably be expected to have a Material Adverse
Effect or (B) cause any property described in the Mortgages to be subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law (excluding, for the avoidance of doubt, compliance obligations
and restrictions imposed in the ordinary course under Environmental Law).
(q) (i) Neither any Loan Party nor any of its Subsidiaries is party to
any tax sharing agreement with any party other than a Loan Party on terms
reasonably acceptable to the Administrative Agent.
(ii) Each Loan Party and each of its Subsidiaries and Affiliates
(excluding directors and officers of such Loan Party and its Subsidiaries)
has filed, has caused to be filed or has been included in all material tax
returns (Federal, state, local and foreign) required to be filed and has
paid all taxes shown thereon to be due, together with applicable interest
and penalties.
(iii) No issues have been raised by any Federal, state, local or
foreign tax authorities in respect of tax periods for which the applicable
statute of limitations for assessment or collection has not expired that,
individually or in the aggregate, could be reasonably likely to have a
Material Adverse Effect.
(r) Set forth on Schedule 4.01(r) hereto is a complete and accurate
list as of the Effective Date of all Existing Debt (other than Surviving Debt),
showing as of the Effective Date the obligor and the principal amount
outstanding thereunder.
(s) Set forth on Schedule 4.01(s) hereto is a complete and accurate
list as of the Effective Date of all Surviving Debt, except for the Debt created
under the Loan Documents, showing as of the Effective Date the obligor and the
principal amount outstanding thereunder, the maturity date thereof and the
amortization schedule therefor.
(t) Set forth on Schedule 4.01(t) hereto is a complete and accurate
list as of the Effective Date of all Liens on the property or assets of
Borrower, except for Liens created under the Loan showing as of the Effective
Date the lienholder thereof, the principal amount of the obligations secured
thereby and the property or assets of such Loan Party or such Subsidiary subject
thereto.
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(u) Set forth on Schedule 4.01(u) hereto is a complete and accurate
list as of the date hereof of all material U.S. patents, registered trademarks,
trade names, service marks and copyrights, and all applications therefor and
licenses thereof (other than licenses for commercially available, off-the shelf
software), owned by each Loan Party or any of its Subsidiaries, showing as of
the date hereof the jurisdiction in which registered and the registration
number.
(v) Neither the Borrower nor, to the knowledge of the Borrower, any of
its Affiliates is in violation of any laws relating to terrorism or money
laundering, including Executive Order No. 13224 on Terrorist Financing,
effective September 23, 2001, and the Patriot Act.
ARTICLE V
COVENANTS OF THE LOAN PARTIES
SECTION 5.01. Affirmative Covenants. So long as any Advance or
any other Obligation of any Loan Party under any Loan Document shall remain
unpaid (other than Unmatured Surviving Obligations), any Letter of Credit shall
be outstanding or any Lender Party shall have any Commitment hereunder, each
Loan Party will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply with all applicable laws, rules, regulations
and orders, such compliance to include, without limitation, compliance
with ERISA, the Racketeer Influenced and Corrupt Organizations Chapter
of the Organized Crime Control Act of 1970 and the Patriot Act, except
for such noncompliance as could not reasonably be expected to have a
Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all Federal, state and other taxes, assessments and
governmental charges or levies imposed upon it or upon its property
and (ii) all lawful claims that, if unpaid, might by law become a Lien
upon its property; provided, however, that neither any Loan Party nor
any of its Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim (i) that is being contested in good
faith and by proper proceedings and as to which appropriate reserves
are being maintained, unless and until any Lien resulting therefrom
attaches to its property and becomes enforceable against its other
creditors and (ii) that, if the same remains unpaid, would not
reasonably be expected to have a Material Adverse Effect.
(c) Compliance with Environmental Laws. Comply, and cause each of
its Subsidiaries to comply, and undertake commercially reasonable
efforts to ensure that all lessees and other Persons operating or
occupying its owned or leased properties to comply, in all material
respects, with all applicable Environmental Laws and Environmental
Permits; obtain and renew, and cause each of its Subsidiaries to
obtain and renew, all Environmental Permits necessary for its
operations and properties; and conduct, and cause each of its
Subsidiaries to conduct, any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials from any of
its properties, in accordance with the requirements of all
Environmental Laws, except in each case above, to the extent that any
such failure to comply with the foregoing could not reasonably be
expected have a Material Adverse Effect; provided, however, that
neither any Loan Party nor any of its Subsidiaries shall be required
to undertake any such cleanup, removal, remedial or other action to
the extent that
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its obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect
to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which such
Loan Party or such Subsidiary operates (taking into account
self-insurance).
(e) Preservation of Legal Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its
existence, legal structure, legal name, rights (charter and
statutory), permits, licenses, approvals, privileges and franchises,
other than those, in each case, that would not reasonably be expected
to have a Material Adverse Effect or except to the extent a Loan Party
is permitted to be sold or merged under Section 5.02(d) of this
Agreement.
(f) Visitation Rights. At any reasonable time and from time to
time, permit the Administrative Agent and the Lenders or any agents or
representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
the Borrower and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrower and any of its Subsidiaries with
any of their officers or directors and with their independent
certified public accountants; provided that so long as no Default or
Event of Default shall have occurred and be continuing, the
Administrative Agent or the Lenders, as the case may be, shall bear
the costs of such examinations and visitations.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are necessary in the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
(i) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under
the Loan Documents with any of their Affiliates on terms, taken as a
whole, that are fair and reasonable and no less favorable in any
material respect to such Loan Party or such Subsidiary than it would
obtain in a comparable arm's-length transaction with a Person not an
Affiliate; provided, however, that the foregoing restriction shall not
apply to (i) any transaction between or among any one or more of the
Loan Parties or (ii) transactions described on Schedule 5.01(i); (iii)
Restricted Payments permitted under Section 5.02(h); provided that
nothing in this Section 5.01(i) shall prohibit the Loan Parties or
their Subsidiaries from engaging in the following transactions: (x)
the performance of obligations under any employment contract,
collective bargaining agreement, employee benefit plan, related trust
agreement or any other similar arrangement heretofore or hereafter
entered into in the ordinary course of business, (y) the payment of
compensation to employees, officers, directors or consultants in the
ordinary course of business and reimbursement of directors' expenses
or (z) the maintenance of benefit programs or arrangements for
employees, officers or directors, including, without limitation,
vacation plans, health and life insurance plans, deferred compensation
plans, and
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54
retirement or savings plans and similar plans, in each case, in the
ordinary course of business.
(j) Covenant to Guarantee Obligations and Give Security. Upon (x)
the request of the Collateral Agent following the occurrence and
during the continuance of an Event of Default, (y) the formation or
acquisition of any new direct or indirect Subsidiary by any Loan Party
or (z) the acquisition of any property by any Loan Party, and such
property, in the judgment of the Collateral Agent, shall not already
be subject to a perfected first priority security interest in favor of
the Collateral Agent for the benefit of the Secured Parties (to the
extent required by the terms of the Loan Documents and on terms
consistent with the Security Agreement, which requirement, absent an
Event of Default, shall be limited to filing of UCC-1 financing
statements and delivery (A) certificates representing Equity
Interests, accompanied by undated stock powers for such certificates
indorsed in blank and (B) instruments representing Pledged Debt and
note powers indorsed in blank), then, in each case at the Borrower's
expense:
(i) in connection with the formation or acquisition of a
Subsidiary that is not (x) a Foreign Subsidiary or (y) a
Subsidiary that is held directly or indirectly by a Foreign
Subsidiary, within 30 days after such formation or acquisition,
cause each such Subsidiary, and cause each direct and indirect
Borrower of such Subsidiary (if it has not already done so), to
duly execute and deliver to the Collateral Agent a guaranty or
guaranty supplement, in form and substance reasonably
satisfactory to the Collateral Agent, guaranteeing the other Loan
Parties' obligations under the Loan Documents,
(ii) within 30 days after (A) such request or acquisition of
property by any Loan Party, duly execute and deliver, and cause
each Loan Party to duly execute and deliver, to the Collateral
Agent such additional pledges, assignments, security agreement
supplements and other security agreements as specified by, and in
form and substance reasonably satisfactory to the Collateral
Agent, securing payment of all the Obligations of such Loan Party
under the Loan Documents and constituting Liens on all such
properties and (B) such formation or acquisition of any new
Subsidiary, duly execute and deliver and cause each Subsidiary to
duly execute and deliver to the Collateral Agent, pledges,
assignments, security agreement supplements and other security
agreements as specified by, and in form and substance reasonably
satisfactory to the Collateral Agent, securing payment of all of
the obligations of such Subsidiary under the Loan Documents, such
pledges, assignments, security agreement and supplements and
other security agreements to be consistent in all material
respects with the Collateral Documents; provided that (x) the
stock and assets of any Subsidiary held by a Foreign Subsidiary
shall not be pledged and (y) if such new property is Equity
Interests in a Foreign Subsidiary, only 66% of such Equity
Interests shall be pledged in favor of the Secured Parties;
(iii) within 30 days after such request, formation or
acquisition (other than any Subsidiary that is a Foreign
Subsidiary or a Subsidiary that is held directly or indirectly by
a Foreign Subsidiary), take, and cause each Loan Party and each
newly acquired or newly formed Subsidiary to file, or authorize
the Collateral Agent to file, Uniform Commercial Code financing
statements, may be necessary or advisable in the reasonable
opinion of the Collateral Agent to vest in the Collateral Agent
(or in any representative of the Collateral Agent designated
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
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by it) valid and subsisting Liens on the properties purported to
be subject to the pledges, assignments, security agreement
supplements and security agreements delivered pursuant to this
Section 5.01(j), enforceable against all third parties in
accordance with their terms,
(iv) within 60 days after such request, formation or
acquisition, deliver to the Collateral Agent, upon the request of
the Collateral Agent in its sole reasonable discretion, a signed
copy of a favorable opinion, addressed to the Collateral Agent
and the other Lender Parties, of counsel for the Loan Parties
reasonably acceptable to the Collateral Agent as to (1) the
matters contained in clauses (i), (ii) and (iii) above, (2) such
guaranty, guaranty supplements, pledges, assignments, security
agreement supplements and security agreements being legal, valid
and binding obligations of each Loan Party which is a party
thereto enforceable in accordance with their terms, as to the
matters contained in clause (ii) above, (3) such recordings,
filings, notices, endorsements and other actions being sufficient
to create valid perfected Liens on such properties to the extent
required by the terms of the Collateral Documents, (4) as to
matters of corporate formalities as the Collateral Agent may
request, and (5) such other matters as the Collateral Agent may
reasonably request, and
(k) Further Assurances. (i) Promptly upon notice from any Agent,
or any Lender Party through the Administrative Agent of any material
defect or error that may be discovered in any Loan Document or in the
execution, acknowledgment, filing or recordation thereof, the Agent
and the Borrower shall be authorized to, and shall act in good faith
to promptly, correct any such defect or error;
(i) Promptly upon the request by any Agent, or any Lender
Party through the Administrative Agent, do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, deeds, conveyances,
pledge agreements, assignments, financing statements and
continuations thereof, termination statements, notices of
assignment, transfers, certificates, assurances and other
instruments as any Agent, or any Lender Party through the
Administrative Agent, may reasonably require from time to time in
order to (A) carry out more effectively the purposes of the Loan
Documents on the terms thereof, (B) to the fullest extent
permitted by applicable law, subject any Loan Party's or any of
its Subsidiaries' properties, assets, rights or interests to the
Liens now or hereafter purported to be covered by any of the
Collateral Documents, (C) perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents and
any of the Liens intended to be created thereunder and (D)
assure, convey, grant, assign, transfer, preserve, protect and
confirm more effectively unto the Secured Parties the rights
granted or now or hereafter purported to be granted to the
Secured Parties under any Loan Document or under any other
instrument executed in connection with any Loan Document to which
any Loan Party or any of its Subsidiaries is or is to be a party,
and cause each of its Subsidiaries to do so; provided, however,
that, unless an Event of Default shall have occurred and be
continuing, no Loan Party shall be required to take any action to
perfect any security interest covered by the Collateral Documents
other than (1) executing, authenticating and filing, or
authorizing the Collateral Agent to file, financing statements or
continuation statements, or amendments thereto, or similar action
having substantially the same effect and (2) delivering any (A)
certificated stock certificates (and blank
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stock powers) representing the Pledged Equity and (B) instruments
representing Pledged Debt (and blank note powers); and
(ii) Take or cause to be taken each action set forth on
Schedule 5.01(k) within the time period specified for the taking
of such action on such Schedule.
(l) Preparation of Environmental Reports. Upon the reasonable
written request of the Administrative Agent after the occurrence of an
Environmental Action or the presence of material quantities or
concentrations of any Hazardous Materials at any owned real property
of the Loan Parties, provide to the Lender Parties, which cause, or
would be reasonably likely to cause, a Material Adverse Effect, within
90 days after Borrower's receipt of such request, at the expense of
the Borrower or such Loan Party, an environmental site assessment
report for any of its or its Subsidiaries' properties described in
such request, prepared by an environmental consulting firm selected by
such Loan Party and reasonably acceptable to the Administrative Agent,
indicating the presence or absence of Hazardous Materials and the
estimated cost of any compliance, removal or remedial action required
under Environmental Laws or consistent with commercially reasonable
business practices in connection with any Hazardous Materials on such
properties; without limiting the generality of the foregoing, if the
Administrative Agent determines at any time that a material risk
exists that any such report will not be provided within the time
referred to above, the Administrative Agent may retain an
environmental consulting firm to prepare such report at the expense of
the Borrower or such Loan Party, and each Loan Party hereby agrees to
provide and cause any Subsidiary that owns any property described in
such request to provide reasonable access to the Agents, the Lender
Parties, such firm and any agents or representatives thereof, subject
to the rights of tenants, to enter onto their respective properties to
undertake such an assessment.
SECTION 5.02. Negative Covenants. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid
(other than Unmatured Surviving Obligations), any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment hereunder, no Loan
Party will at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Lien on or with respect to any of its properties of any
character (including, without limitation, accounts) whether now owned
or hereafter acquired, or sign or file or suffer to exist, or permit
any of its Subsidiaries to sign or file or suffer to exist, under the
Uniform Commercial Code of any jurisdiction, a financing statement
that names such Loan Party or any of its Subsidiaries as debtor, or
sign or suffer to exist, or permit any of its Subsidiaries to sign or
suffer to exist, any security agreement authorizing any secured party
thereunder to file such financing statement, or assign, or permit any
of its Subsidiaries to assign, any accounts or other right to receive
income, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described on
Schedule 4.01(u) hereto and any extensions, renewals or
replacements thereof,
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provided, that no such Lien shall extend to or cover any property
not theretofore subject to the Lien being extended, renewed or
replaced;
(iv) purchase money Liens upon or in property acquired or
held by such Loan Party or any of its Subsidiaries in the
ordinary course of business to secure the purchase price of such
property or to secure Debt incurred solely for the purpose of
financing the acquisition, construction or improvement of any
such property to be subject to such Liens, or Liens existing on
any such property at the time of acquisition (other than any such
Liens created in contemplation of such acquisition that do not
secure the purchase price), or extensions, renewals or
replacements of any of the foregoing for the same or a lesser
amount; provided, however, that no such Lien shall extend to or
cover any property other than the property being acquired,
constructed or improved, and no such extension, renewal or
replacement shall extend to or cover any property not theretofore
subject to the Lien being extended, renewed or replaced; and
provided further that the aggregate principal amount of the Debt
secured by Liens permitted by this clause (iv) when added to the
amount of Capitalized Leases, shall not exceed the amount
permitted under Section 5.02(b)(iii) or (iv) at any time
outstanding;
(v) Liens arising in connection with Capitalized Leases
permitted under Section 5.02(b)(iv); provided that no such Lien
shall extend to or cover any Collateral or assets other than the
assets subject to such Capitalized Leases;
(vi) other Liens securing Debt and other obligations
outstanding in an aggregate principal amount not to exceed
$5,000,000;
(vii) Liens attaching solely to ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits
in connection with any acquisition permitted by Section
5.02(f)(vii); and
(viii) Liens securing Debt of foreign Subsidiaries up to an
aggregate amount not to exceed $5,000,000; and
(ix) Liens securing Debt of Persons that have been acquired
as permitted by Section 5.02(f) so long as such Liens existed
prior to such Person's becoming a Subsidiary and were not created
in anticipation of such acquisition and attach only to specific
assets of such Person (and not assets of such Person generally).
(b) Debt. Create, incur, assume or suffer to exist, or permit any
of its Subsidiaries to create, incur, assume or suffer to exist, any
Debt, except:
(i) Debt under the Loan Documents;
(ii) the Permitted Convertible Notes;
(iii) Debt secured by Liens permitted by Section
5.02(a)(iv), in an aggregate amount not to exceed $5,000,000 at
any time outstanding;
(iv) (A) Debt secured by Liens permitted by Section
5.02(a)(iv) (or any refinancing or replacement thereof, in whole
or in part), and (B) Capitalized Leases; provided, however, that
the aggregate amount of Debt described by this
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
58
clause (iv) that the Borrower and its Subsidiaries may incur
shall not exceed $12,500,000 for each Fiscal Year that this
Agreement remains in effect;
(v) the Surviving Debt and any Debt extending the maturity
of, or refunding or refinancing, in whole or in part, any
Surviving Debt, provided that the terms of any such extending,
refunding or refinancing Debt, and of any agreement entered into
and of any instrument issued in connection therewith, are
otherwise permitted by the Loan Documents; provided further that
the principal amount of such Surviving Debt shall not be
increased above the principal amount thereof outstanding
immediately prior to such extension, refunding or refinancing,
plus the amount of any reasonable fees, expenses, premiums,
accrued interest and accrued amounts paid in connection with such
refinancing, and the direct and contingent obligors therefor
shall not be changed, as a result of or in connection with such
extension, refunding or refinancing;
(vi) Debt in respect of Hedge Agreements designed to hedge
against fluctuations in interest rates incurred in the ordinary
course of business and consistent with prudent business practice;
(vii) Debt owed to a Loan Party, which Debt shall (x)
constitute Pledged Debt and (y) be otherwise permitted under the
provisions of Section 5.02(f);
(viii) other Debt in an aggregate principal amount not to
exceed $10,000,000 at any time outstanding;
(ix) Debt of one or more foreign Subsidiaries up to an
aggregate amount outstanding at any one time not to exceed
$5,000,000;
(x) Debt of Persons that have been acquired as permitted by
Section 5.02(f) so long as such Debt existed prior to such
Person's becoming a Subsidiary and was not incurred in
anticipation of such acquisition;
(xi) the guarantee by any Loan Party of (A) Debt permitted
to be incurred by any other Loan Party and (B) any other
Subsidiary in an aggregate amount at any one time not to exceed
$5,000,000; and
(xii) Refinancing Debt.
(c) Change in Nature of Business. Engage in any line of business
other than those businesses engaged in on the Effective Date and
businesses reasonably related or incidental thereto or any reasonable
extension thereof.
(d) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Subsidiaries
to do so, except that:
(i) any Subsidiary of the Borrower may merge into or
consolidate with any other Subsidiary of the Borrower; provided
that, in the case of any such merger or consolidation to which a
Subsidiary Guarantor is a party, the Person formed by such merger
or consolidation shall be a wholly-owned Subsidiary Guarantor;
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
59
(ii) The Borrower or any Subsidiary of the Borrower may
merge into or consolidate with the Borrower; provided that, in
the case of any such merger or consolidation, the Borrower shall
be the surviving entity;
(iii) in connection with any acquisition permitted under
Section 5.02(f), any Subsidiary of the Borrower may merge into or
consolidate with any other Person or permit any other Person to
merge into or consolidate with it; provided that the Person
surviving such merger shall be a wholly-owned Subsidiary
Guarantor; and
(iv) in connection with any sale or other disposition
permitted under Section 5.02(e) (other than clause (ii) thereof),
any Subsidiary of the Borrower may merge into or consolidate with
any other Person or permit any other Person to merge into or
consolidate with it;
provided, however, that in each case, immediately before and
after giving effect thereto, no Default shall have occurred and
be continuing and, in the case of any such merger to which the
Borrower is a party, the Borrower is the surviving corporation.
(e) Sales, Etc., of Assets. Sell, lease, transfer or otherwise
voluntarily dispose of, or permit any of its Subsidiaries to sell,
lease, transfer or otherwise voluntarily dispose of, any assets, or
grant any option or other right to purchase, lease or otherwise
acquire any assets, except:
(i) sales of inventory in the ordinary course of its
business and the granting of any option or other right to
purchase, lease or otherwise acquire inventory in the ordinary
course of business;
(ii) in a transaction authorized by Section 5.02(d);
(iii) sales, transfers or other dispositions of assets among
Loan Parties;
(iv) sales, transfer or other dispositions of damaged,
obsolete or worn out property whether now owned or hereafter
acquired;
(v) so long as no Default shall have occurred and be
continuing or would result from such sale, sales, transfers or
other dispositions of assets for cash and for fair value in an
aggregate amount not to exceed $10,000,000 in any Fiscal Year;
(vi) licenses of intellectual property in the ordinary
course of business;
(vii) dispositions of cash and Cash Equivalents for cash or
Cash Equivalents;
(viii) the abandonment, termination or other disposition of
intellectual property or leasehold properties in the ordinary
course of business;
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
60
(ix) sales, discounts or forgiveness of accounts receivable
in connection with the collection or compromise thereof in the
ordinary course of business;
(x) licensing of intellectual property to any foreign
Subsidiary or other Persons pursuant to Investments permitted by
Section 5.02(f)(x);
(xi) dispositions constituting Investments permitted under
Section 5.02(f); and
(xii) subsequent sales and dispositions of non-core assets
acquired in a Permitted Acquisition under section 5.02(f)(vii) in
an aggregate amount not to exceed $20,000,000; provided that any
such sale or disposition shall be for fair market value and the
consideration therefor shall consist of at least 75% cash
consideration;
provided that in the case of sales of assets pursuant to clauses
(v) and (xii) above, the Borrower shall to the extent required,
apply Net Cash Proceeds from such sale, prepay the Advances
pursuant to, and in the amount and order of priority set forth
in, Section 2.06(b)(iii), as specified therein.
(f) Investments in Other Persons. Make or hold, or permit any of
its Subsidiaries to make or hold, any Investment in any Person,
except:
(i) Investments in Loan Parties;
(ii) loans and advances to employees in the ordinary course
of business as presently conducted in an aggregate principal
amount not to exceed $500,000 at any time outstanding;
(iii) Investments in Cash Equivalents;
(iv) Investments existing on the date hereof;
(v) Investments in Hedge Agreements required or permitted
under Article V;
(vi) Investments consisting of intercompany Debt permitted
under Section 5.02(b);
(vii) the purchase or other acquisition (a "PERMITTED
ACQUISITION") of all of the Equity Interests in, or all or
substantially all of the property and assets of, or any business
unit, line of business or other assets of any Person that, upon
the consummation thereof, will be wholly-owned directly by the
Borrower or one or more of its wholly-owned Subsidiaries
(including, without limitation, as a result of a merger or
consolidation) (x) if made solely with Equity Interests (or
proceeds thereof and applied within 90 days of issuance thereof)
up to 50% of the publicly recorded balance sheet book value of
stockholders' equity, or (y) otherwise, in an aggregate total
amount for all such purchases or acquisitions not to exceed
$200,000,000, in each case, inclusive of any contingent
obligations
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
61
incurred in respect of such purchase or acquisition; provided
that, with respect to such purchases or acquisitions made
pursuant to this clause (vii):
(A) (1) if made solely from the issuance of Equity Interests
or proceeds thereof pursuant to clause (x) above, no amount under
the Revolving Credit Facility shall be outstanding immediately
before and after giving effect to such Permitted Acquisition and
(2) if made pursuant to clause (y) above, not more than
$100,000,000 (the "THRESHOLD AMOUNT") of aggregate funds for all
such Permitted Acquisitions shall come from proceeds from the
issuance of senior secured Debt permitted under this Agreement;
(B) any such newly created or acquired Subsidiary shall,
within the time frames set forth, comply with the requirements of
Section 5.01(j);
(C) the lines of business of the Person to be (or the
property and assets of which are to be) so purchased or otherwise
acquired shall be substantially the same lines of business as one
or more of the principal businesses of the Borrower and its
Subsidiaries in the ordinary course or reasonably related or
incidental thereto or a reasonable extension thereof;
(D) (1) immediately before and immediately after giving
effect to any such Permitted Acquisition, no Default shall have
occurred and be continuing and (2) immediately after giving
effect to such Permitted Acquisition, on a pro forma basis the
Borrower and its Subsidiaries shall be in compliance with all of
the covenants set forth in Section 5.04, such compliance to be
determined on the basis of the financial information most
recently delivered to the Administrative Agent and the Lender
Parties pursuant to Section 5.03 as though such Permitted
Acquisition had been consummated as of the first day of the
fiscal period covered thereby and after giving effect of all
Permitted Pro Forma Adjustments;
(E) in the case where the aggregate amount of all such
Permitted Acquisitions (other than cash constituting proceeds of
an issuance of Equity Interests applied within 90 days) exceed
the Threshold Amount, the Leverage Ratio (after applying such
Permitted Acquisitions in excess of the Threshold Amount on a pro
forma basis) shall be no greater than 2:50:1:00, such compliance
to be determined on the basis of the financial information most
recently delivered to the Administrative Agent and the Lender
Parties pursuant to Section 5.03 as though such Permitted
Acquisition had been consummated as of the first day of the
fiscal period covered thereby and after giving effect of all
Permitted Pro Forma Adjustments.
(F) the Borrower shall have delivered to the Administrative
Agent, on behalf of the Lender Parties, at least five Business
Days prior to the date on which any Permitted Acquisition is to
be consummated, a certificate of a Responsible Officer, in form
and substance reasonably satisfactory to the Administrative
Agent, certifying that all of the requirements set forth in this
clause (vii) have been satisfied or will be satisfied on or prior
to the consummation of such Permitted Acquisition;
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
62
(G) such Permitted Acquisition was not preceded by, or
effected pursuant to, an unsolicited or hostile offer, or is not
otherwise on hostile terms;
(H) no Debt (other than Debt secured by Liens described in
Section 5.02(a)(iv) and (v)) ranking senior to the Revolving
Credit Facility shall be assumed or incurred by the Borrower or
any of its Subsidiaries as a result of such Permitted
Acquisition;
(I) such Permitted Acquisition shall be accretive to
Consolidated EBITDA; provided that no Permitted Acquisitions
shall be required to be accretive to Consolidated EBITDA until
the aggregate amount of all such Permitted Acquisitions reaches
the Threshold Amount and, thereafter, no individual Permitted
Acquisition shall be required to be accretive to Consolidated
EBITDA unless the consideration therefor exceeds $5,000,000, and
so long as the aggregate amount of such Permitted Acquisitions
that are not accretive to Consolidated EBITDA do not exceed
$10,000,000 in any Fiscal Year; and
(J) any assets acquired by the Borrower and its Subsidiaries
pursuant to any Permitted Acquisition under this Section
5.02(f)(vii) shall be located in jurisdictions in which the
Collateral Agent can obtain a first-priority lien on such assets
in accordance with the procedures set forth in the Security
Agreement.
(viii) Investments by the Borrower and its Subsidiaries not
otherwise permitted under this Section 5.02(f) in an aggregate
amount not to exceed $5,000,000;
(ix) (A) Investments in notes payable owing by account
debtors in conjunction with the settlement of accounts
receivables and (B) Investments in Equity Interests and notes
payable of account debtors received (and in the amount so
received) pursuant to any reorganization or similar arrangement
upon bankruptcy or insolvency of such account debtors;
(x) Investments constituting transfer of licenses of
intellectual property in respect of joint ventures with Persons
located outside the United States (or U.S. Persons with overseas
operations) for the purpose of the distribution of the Borrower's
product lines outside of the United States so long as in
compliance with the requirements of Section 5.02(e);
(xi) other Investments in foreign Subsidiaries not to exceed
$5,000,000 during the term of this Agreement; and
(xii) Investments in the form of non-cash consideration
received in connection with any sale or divestiture of assets
permitted under 5.02(e).
(g) Development and Research Expenditures. Incur, or cause or permit
any of its Subsidiaries to incur, any research or clinical development
expenditures for new or existing chemical entities, except:
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
63
(i) clinical development expenditures up to the greater of
(1) $50,000,000 or (2) 15% of the cumulative net consolidated
revenues of the Borrower for product modifications to (x)
existing ingredients approved by the Federal Drug Administration
as of the Effective Date, (y) products already in market and (z)
those products under development as of the Effective Date
identified to the Administrative Agent in a separate confidential
schedule; and
(ii) research expenditures associated with development of
the Erdosteine product line in a dollar amount up to and
inclusive of the amount permitted under Section 5.02(g)(i).
(h) Restricted Payments. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its
Equity Interests now or hereafter outstanding, return any capital to
its stockholders, partners or members (or the equivalent Persons
thereof) as such, make any distribution of assets, Equity Interests,
obligations or securities to its stockholders, partners or members (or
the equivalent Persons thereof) as such or, except in the case of the
Borrower, issue or sell any Equity Interests, or permit any of its
Subsidiaries to do any of the foregoing, or permit any of its
Subsidiaries to purchase, redeem, retire, defease or otherwise acquire
for value any Equity Interests in the Borrower or to issue or sell any
Equity Interests therein, except that, so long as no Default shall
have occurred and be continuing at the time of any action described
below (each a "RESTRICTED PAYMENT") or would result therefrom:
(i) (A) the Borrower may declare and pay dividends and
distributions payable only in common stock of the Borrower and
(B) except to the extent the Net Cash Proceeds thereof are
required to be applied to the prepayment of the Advances pursuant
to Section 2.06(b), the Borrower may purchase, redeem, retire,
defease or otherwise acquire shares of their capital stock with
the proceeds received contemporaneously from the issue of new
shares of their capital stock with equal or inferior voting
powers, designations, preferences and rights;
(ii) any Subsidiary of the Borrower may (A) declare and pay
cash dividends to the Borrower and (B) declare and pay cash
dividends (directly or indirectly) to any other Loan Party of
which it is a Subsidiary; and
(iii) the Borrower may make dividends and distributions from
time to time in an aggregate amount not to exceed (x) 50% of
cumulative positive Consolidated net income for the period from
July 1, 2006 to the date of the end of the most recent fiscal
quarter prior to which such dividends or distributions are
proposed to be made (treated as a single accounting period), to
the extent then actually available plus (y) 100% of the net
proceeds of the issuance of any Equity Interests since the
Effective Date not used to make acquisitions pursuant to Section
5.02(f)(vii); provided that immediately after giving effect to
any such dividends and distributions, the Borrower and its
subsidiaries shall be in pro forma compliance with the covenants
set forth in Section 5.04, and immediately before and immediately
after giving effect to such dividends and distributions, no
Default shall have occurred and be continuing.
(i) Amendments of Constitutive Documents. Amend, or permit any of
its Subsidiaries to amend, its certificate of incorporation or bylaws
or other constitutive
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
64
documents other than amendments that could not be reasonably expected
to have a Material Adverse Effect.
(j) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies
or reporting practices, except as required or permitted by GAAP, or
(ii) Fiscal Year.
(k) Prepayments, Etc., of Debt. Prepay, redeem, purchase, defease
or otherwise satisfy prior to the scheduled maturity thereof in any
manner, or make any payment in violation of any subordination terms
of, any subordinated Debt or Permitted Convertible Notes, except (i)
regularly scheduled or required repayments or redemptions of the
Surviving Debt or amend, modify or change in any manner any material
term or condition of any Surviving Debt or (ii) in connection with any
Refinancing Debt.
(l) Negative Pledge. Enter into or suffer to exist, or permit any
of its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien
upon any of its property or assets except (i) agreements that permit
the granting of Liens in favor of the Secured Parties pursuant to the
terms of the Loan Documents or (ii) in connection with (A) any
purchase money Debt permitted by Section 5.02(b)(iii) solely to the
extent that the agreement or instrument governing such Debt prohibits
a Lien on the property acquired with the proceeds of such Debt, (B)
any Capitalized Lease permitted by Section 5.02(b)(iii) solely to the
extent that such Capitalized Lease prohibits a Lien on the property
subject thereto, (C) any Debt outstanding on the date any Subsidiary
of such Loan Party becomes such a Subsidiary (so long as such
agreement was not entered into solely in contemplation of such
Subsidiary becoming a Subsidiary of such Loan Party), (D) customary
provisions in leases restricting assignability or subleasing, (E)
restrictions which are not more restrictive than those contained in
this Agreement contained in any documents governing any Debt incurred
after the Closing Date in accordance with the provisions of this
Agreement, (F) any customary restrictions imposed pursuant to an
agreement that has been entered into in connection with any
disposition permitted under Section 5.02(e), or (G) in the case of any
joint venture, customary restrictions in such person's organizational
or governing documents or pursuant to any joint venture agreement or
stockholders agreement.
(m) Partnerships, Etc. Become a general partner in any general or
limited partnership or joint venture, or permit any of its
Subsidiaries to do so, other than any Subsidiary the sole assets of
which consist of its interest in such partnership or joint venture.
(n) Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options
or futures contracts or any similar speculative transactions.
(o) Capital Expenditures. Make, or permit any of its Subsidiaries
to make, any Capital Expenditures (excluding any Investments and
acquisitions permitted under Section 5.02(f)) that would cause the
aggregate of all such Capital Expenditures made by the Borrower and
its Subsidiaries, as determined on a Consolidated basis in any Fiscal
Year set forth below to exceed the amount set forth below for such
Fiscal Year:
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
65
FISCAL YEAR ENDING IN AMOUNT
--------------------- -----------
2007 $15,000,000
2008 and thereafter $10,000,000
provided, however, that if, for any Fiscal Year set forth above, the
amount specified above for such Fiscal Year exceeds the aggregate
amount of Capital Expenditures made by the Borrower and its
Subsidiaries, as determined on a Consolidated basis during such Fiscal
Year (the amount of such excess being the "EXCESS AMOUNT"), the
Borrower and its Subsidiaries shall be entitled to make additional
Capital Expenditures in the immediately succeeding Fiscal Year in an
amount (such amount being referred to herein as the "CARRYOVER
AMOUNT") equal to the lesser of (i) the Excess Amount and (ii) 50% of
the amount specified above for such immediately preceding Fiscal Year;
provided further that the foregoing limitations shall not apply to
Capital Expenditures associated with the Cardinal Acquisition.
(p) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or
arrangement limiting the ability of any of its Subsidiaries to declare
or pay dividends or other distributions in respect of its Equity
Interests or repay or prepay any Debt owed to, make loans or advances
to, or otherwise transfer assets to or invest in, the Borrower or any
Subsidiary of the Borrower (whether through a covenant restricting
dividends, loans, asset transfers or investments, a financial covenant
or otherwise), except (i) the Loan Documents, (ii) any agreement or
instrument evidencing Surviving Debt (or any refinancing thereof
permitted hereunder), (iii) any agreement in effect at the time such
Subsidiary becomes a Subsidiary of such Loan Party, so long as such
agreement was not entered into solely in contemplation of such Person
becoming a Subsidiary of such Loan Party, (iv) agreements evidencing
Indebtedness permitted by clauses (ii) and (iii) of Section 5.02(b)
that impose customary restrictions on the property so acquired, (v)
Secured Hedge Agreements, (vi) customary provisions in leases
restricting assignability or subleasing, (vii) restrictions which are
not more restrictive than those contained in this Agreement contained
in any documents governing any Debt incurred after the Closing Date in
accordance with the provisions of this Agreement and (viii) any
customary restrictions imposed pursuant to an agreement that has been
entered into in connection with any disposition permitted under
Section 5.02(e).
SECTION 5.03. Reporting Requirements. So long as any Advance or
any other Obligation of any Loan Party under any Loan Document shall remain
unpaid (other than Unmatured Surviving Obligations), any Letter of Credit shall
be outstanding or any Lender Party shall have any Commitment hereunder, the Loan
Parties will furnish to the Agents and the Lender Parties:
(a) Default Notice. Promptly upon any Responsible Officer of
Borrower obtaining knowledge thereof, and in any event within two
Business Days notice of the occurrence of (i) each Default or (ii) any
event, development or occurrence that is reasonably likely to have a
Material Adverse Effect continuing on the date of such statement, in
either case, a statement of a Responsible Officer of the Borrower
setting forth details of such Default and the action that the Borrower
has taken and proposes to take with respect thereto.
(b) Annual Financials. As soon as available and in any event
within 90 days after the end of each Fiscal Year, a copy of the annual
audit report for such year for the Borrower and its Subsidiaries,
including therein a Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Year and a Consolidated
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
66
statement of income and a Consolidated statement of cash flows of the
Borrower and its Subsidiaries for such Fiscal Year, in each case
accompanied by an opinion as to such audit report of independent
public accountants of recognized standing without a "going concern" or
scope of audit qualification, a Management Discussion & Analysis and a
comparison budget, and (ii) a certificate of a Responsible Officer of
the Borrower, substantially in the form annexed hereto as Exhibit H,
stating that no Default has occurred and is continuing or, if a
Default has occurred and is continuing, a statement as to the nature
thereof and the action that the Borrower has taken and proposes to
take with respect thereto and (iii) a schedule in reasonable detail
and in form reasonably satisfactory to the Administrative Agent of the
computations used by the Borrower in determining compliance with the
covenants contained in Section 5.04.
(c) Quarterly Financials. As soon as available and in any event
within 50 days after the end of each of the first three fiscal quarter
of each Fiscal Year, a Consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of such quarter and a Consolidated
statement of income and a Consolidated statement of cash flows of the
Borrower and its Subsidiaries for the period commencing at the end of
the previous fiscal quarter and ending with the end of such fiscal
quarter and a Consolidated statement of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries for the
period commencing at the end of the previous Fiscal Year and ending
with the end of such quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding date
or period of the preceding Fiscal Year, all in reasonable detail and
duly certified (subject to the exclusion of footnotes and year-end
audit adjustments) by a Responsible Officer of the Borrower as having
been prepared in accordance with GAAP, together with (i) a certificate
of a Responsible Officer, substantially in the form annexed hereto as
Exhibit H, stating that no Default has occurred and is continuing or,
if a Default has occurred and is continuing, a statement as to the
nature thereof and the action that the Borrower has taken and proposes
to take with respect thereto and (ii) a schedule in form reasonably
satisfactory to the Administrative Agent of the computations used by
the Borrower in determining compliance with the covenants contained in
Section 5.04.
(d) Annual Forecasts. Prior to the beginning of each fiscal year
(and, in the case of the 2007 Fiscal Year, prior to the Effective
Date), a Consolidated budget of the Borrower and its Subsidiaries as
of the end of such fiscal year, with breakdowns by product line in
reasonable detail, including a Consolidated statement of income and a
Consolidated statement of cash flows of the Borrower and its
Subsidiaries and a Consolidated statement of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries for each
fiscal quarter of such fiscal year and setting forth the forecasted
capital expenditures for such fiscal year, in each case in comparative
form the corresponding figures for the corresponding date or period of
the preceding Fiscal Year, all in reasonable detail and duly certified
(subject to the exclusion of footnotes and year-end audit adjustments)
by a Responsible Officer of the Borrower as having been prepared in
accordance with GAAP.
(e) Litigation. Promptly after the commencement thereof, notice
of all actions, suits, investigations, litigation and proceedings
before any Governmental Authority affecting any Loan Party or any of
its Subsidiaries of the type described in Section 4.01(f).
(f) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and
reports that any Loan Party or any of its Subsidiaries sends to its
stockholders generally, and copies of all regular, periodic and
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
67
special reports, and all registration statements, that any Loan Party
or any of its Subsidiaries files with the Securities and Exchange
Commission or any Governmental Authority that may be substituted
therefor, or with any national securities exchange.
(g) Agreement Notices. Promptly upon receipt thereof, copies of
all notices of default received by any Loan Party or any of its
Subsidiaries under or pursuant to any Related Document or instrument,
indenture, loan or credit or similar agreement governing Debt that is
outstanding in a principal amount of at least $5,000,000.
(h) Revenue Agent Reports. Promptly upon receipt thereof, copies
of all Revenue Agent Reports (Internal Revenue Service Form 886), or
other written proposals of the Internal Revenue Service, that propose,
determine or otherwise set forth positive adjustments to the Federal
income tax liability of the affiliated group (within the meaning of
Section 1504(a)(1) of the Internal Revenue Code) of which the Borrower
is a member that would reasonably be likely to have a Material Adverse
Effect.
(i) ERISA. (i) ERISA Events and ERISA Reports. (A) Promptly after
any Loan Party or any ERISA Affiliate knows or has reason to know that
any ERISA Event that could reasonably be expected to have a Material
Adverse Effect has occurred, a statement of a Responsible Officer of
the Borrower describing such ERISA Event and the action, if any, that
such Loan Party or such ERISA Affiliate has taken and proposes to take
with respect thereto and (B) on the date any records, documents or
other information must be furnished to the PBGC with respect to any
Plan pursuant to Section 4010 of ERISA, a copy of such records,
documents and information.
(i) Plan Terminations. Promptly after receipt thereof by any
Loan Party or any ERISA Affiliate, copies of each notice from the
PBGC stating its intention to terminate any Plan or to have a
trustee appointed to administer any Plan.
(ii) Plan Annual Reports. Promptly after the filing thereof
with the Internal Revenue Service, copies of each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series)
with respect to each Plan.
(iii) Multiemployer Plan Notices. Promptly after receipt
thereof by any Loan Party or any ERISA Affiliate from the sponsor
of a Multiemployer Plan, copies of each notice concerning (A) the
imposition of Withdrawal Liability by any such Multiemployer
Plan, (B) the reorganization or termination, within the meaning
of Title IV of ERISA, of any such Multiemployer Plan or (C) the
amount of liability incurred, or that may be incurred, by such
Loan Party or any ERISA Affiliate in connection with any event
described in clause (A) or (B).
(j) Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of
any noncompliance by any Loan Party or any of its Subsidiaries with
any Environmental Law or Environmental Permit that would reasonably be
expected to have a Material Adverse Effect or materially impact
current operations of the Borrowers and its Subsidiaries.
(k) Other Information. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party
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or any of its Subsidiaries as any Agent, or any Lender Party through
the Administrative Agent, may from time to time reasonably request
that would not vitiate the attorney-client privilege.
Information required to be delivered pursuant to Sections 5.03(b) and (c) shall
be deemed to have been delivered if such information shall be available on the
website of the Securities and Exchange Commission at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇ and the
Borrower shall have notified the Administrative Agent of the availability of all
such financial information; provided, that the Borrower shall deliver paper
copies of such information to any Agent or Lender Party that reasonably requests
such delivery. Information required to be delivered pursuant to this Section
5.03 (other than a Notice of Default) may also be delivered by electronic means
pursuant to Section 9.02(b).
SECTION 5.04. Financial Covenants. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid
(other than Unmatured Surviving Obligations), any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment hereunder, the
Borrower will:
(a) Leverage Ratio. Maintain, as at the end of each Measurement
Period, a Leverage Ratio not greater than 3.50:1.00.
(b) Senior Secured Leverage Ratio. Maintain, as of at the end of
each Measurement Period, a Senior Secured Leverage Ratio of not
greater than 2.00:1.00.
(c) Fixed Charge Coverage Ratio. Maintain, as at the end of each
Measurement Period, a Fixed Charge Coverage Ratio of not less than
2.00:1.00.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any
Advance when the same shall become due and payable or (ii) the
Borrower shall fail to pay any interest on any Advance, or any Loan
Party shall fail to make any other payment under any Loan Document, in
each case under this clause (ii) within three Business Days after the
same shall become due and payable; or
(b) any representation or warranty made by any Loan Party in any
Loan Document or in any document delivered in connection therewith
shall prove to have been incorrect in any material respect when made;
or
(c) the Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 2.14, 5.01(e), (f), (i) or
(j) or 5.02, 5.03 or 5.04; or
(d) any Loan Party shall fail to perform or observe any other
term, covenant or agreement contained in any Loan Document (which is
not specified in Section 6.01(c)) on its part to be performed or
observed if such failure shall remain unremedied for 45 days after the
earlier of the date on which (i) any Responsible Officer of a Loan
Party obtains
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actual knowledge of such failure or (ii) written notice thereof shall
have been given to the Borrower by any Agent or any Lender Party; or
(e) any Loan Party or any of its Subsidiaries shall fail to pay
any principal of, premium or interest on or any other amount payable
in respect of any Debt of such Loan Party or such Subsidiary (as the
case may be) that is outstanding in a principal amount (or, in the
case of any Hedge Agreement, an Agreement Value) of at least
$5,000,000 either individually or in the aggregate for all such Loan
Parties and Subsidiaries (but excluding Debt outstanding hereunder),
when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any
other event shall occur or condition shall exist under any agreement
or instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate,
or to permit the acceleration of, the maturity of such Debt or
otherwise to cause, or to permit the holder thereof to cause, such
Debt to mature; or any such Debt shall be declared to be due and
payable or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated
maturity thereof; or
(f) any Loan Party or any of its Subsidiaries shall generally not
pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any Loan Party or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee or other similar official for it or
for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is
being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of 60 days or any of
the actions sought in such proceeding (including, without limitation,
the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or any
substantial part of its property) shall occur; or any Loan Party or
any of its Subsidiaries shall take any corporate action to authorize
any of the actions set forth above in this subsection (f); or
(g) any judgments or orders, either individually or in the
aggregate, for the payment of money in excess of $25,000,000 shall be
rendered against any Loan Party or any of its Subsidiaries (to the
extent not covered by (a) insurance (other than self insurance)
maintained in accordance with this Agreement as to which the insurer
does not dispute coverage or (b) valid third party indemnification as
to which the indemnitor has not denied in writing coverage) and either
(i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of 60
consecutive days during which a stay of enforcement of such judgment
or order, by reason of a pending appeal, bonding or otherwise, shall
not be in effect; or
(h) any non-monetary judgment or order shall be rendered against
any Loan Party or any of its Subsidiaries that would be reasonably
likely to have a Material Adverse Effect, and there shall be any
period of 45 consecutive days during which a stay of enforcement of
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such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(i) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01 or 5.01(j) shall for any reason (other than
pursuant to the terms thereof) cease to be valid and binding on or
enforceable against any Loan Party to it, or any such Loan Party shall
so state in writing; or
(j) any Collateral Document or financing statement after delivery
thereof pursuant to Section 3.01 or 5.01(j) shall for any reason
(other than pursuant to the terms thereof) cease to create a valid and
perfected first priority lien on and security interest in the
Collateral purported to be covered thereby (except as a result of the
action or inaction of the Agents or Lenders, in each case through no
fault of any Loan Party) (with respect to intellectual property, only
if and to the extent perfection may be achieved by the filing of UCC
financing statements); or
(k) a Change of Control shall occur; or
(l) (i) any ERISA Event shall have occurred with respect to a
Plan, (ii) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan or (iii) any Loan
Party or any ERISA Affiliate shall have been notified by the sponsor
of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV
of ERISA, and, in any such case, such event would be reasonably
expected to have a Material Adverse Effect;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by written notice to the
Borrower, declare the Commitments of each Lender Party and the obligation of
each Lender Party to make Advances (other than Letter of Credit Advances by an
Issuing Bank or a Revolving Credit Lender pursuant to Section 2.03(c)) and of
the Issuing Bank to issue Letters of Credit to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, (A) by written notice to the Borrower, declare
the Advances, all interest thereon and all other amounts payable under this
Agreement and the other Loan Documents to be forthwith due and payable,
whereupon the Advances, all such interest and all such amounts shall become and
be forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower,
(B) by written notice to each party required under the terms of any agreement in
support of which a Letter of Credit is issued, request that all Obligations
under such agreement be declared to be due and payable; provided, however, that
in the event of an actual or deemed entry of an order for relief with respect to
the Borrower under the Federal Bankruptcy Code, (x) the Commitments of each
Lender Party and the obligation of each Lender Party to make Advances (other
than Letter of Credit Advances by an Issuing Bank or a Revolving Credit Lender
pursuant to Section 2.03(c) and of the Issuing Bank to issue Letters of Credit
shall automatically be terminated and (y) the Advances, all such interest and
all such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon an
Event of Default. If any Event of Default shall have occurred and be continuing,
the Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Collateral Agent on behalf of the Lender
Parties in same day
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funds at the Collateral Agent's Office, for deposit in the Collateral Account,
an amount equal to the aggregate Available Amount of all Letters of Credit then
outstanding; provided, however, that in the event of an actual or deemed entry
of an order for relief with respect to the Borrower under the Bankruptcy Law,
the Borrower will pay to the Collateral Agent on behalf of the Lender Parties in
same day funds at the Collateral Agent's Office, for deposit in the Collateral
Account, an amount equal to the aggregate Available Amount of all Letters of
Credit then outstanding, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by the Borrower. If at any
time after the occurrence and during the continuance of an Event of Default, the
Administrative Agent or the Collateral Agent determines that any funds held in
the Collateral Account are subject to any right or claim of any Person other
than the Agents and the Lender Parties or that the total amount of such funds is
less than the aggregate Available Amount of all Letters of Credit, the Borrower
will, forthwith upon demand by the Administrative Agent or the Collateral Agent,
pay to the Collateral Agent, as additional funds to be deposited and held in the
Collateral Account, an amount equal to the excess of (a) such aggregate
Available Amount over (b) the total amount of funds, if any, then held in the
Collateral Account that the Administrative Agent or the Collateral Agent, as the
case may be, determines to be free and clear of any such right and claim. Upon
the drawing of any Letter of Credit for which funds are on deposit in the
Collateral Account, such funds shall be applied to reimburse the relevant
Issuing Bank or Revolving Credit Lenders, as applicable, to the extent permitted
by applicable law.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. (a) Each Lender Party (in
its capacities as a Lender, an Issuing Bank (if applicable) or Swingline Bank
(if applicable) and on behalf of itself and its Affiliates as potential Hedge
Banks) hereby appoints and authorizes each Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement and
the other Loan Documents as are delegated to such Agent by the terms hereof and
thereof, together with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection of the Advances), no
Agent shall be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders,
and such instructions shall be binding upon all Lender Parties, all Hedge Banks
and all holders of Notes; provided, however, that no Agent shall be required to
take any action that exposes such Agent to personal liability or that is
contrary to this Agreement or applicable law. Each Agent agrees to give to each
Lender Party prompt notice of each notice given to it by the Borrower pursuant
to the terms of this Agreement.
(b) In furtherance of the foregoing, each Lender Party (in its
capacities as a Lender, an Issuing Bank (if applicable) or Swingline Bank, and
on behalf of itself and its Affiliates as potential Hedge Banks) hereby appoints
and authorizes the Collateral Agent to act as the agent of such Lender Party for
purposes of acquiring, holding and enforcing any and all Liens on Collateral
granted by any of the Loan Parties to secure any of the Secured Obligations,
together with such powers and discretion as are reasonably incidental thereto.
In this connection, the Collateral Agent (and any Supplemental Collateral Agents
appointed by the Collateral Agent pursuant to Section 7.01(c) for purposes of
holding or enforcing any Lien on the Collateral (or any portion thereof) granted
under the Collateral Documents, or for exercising any rights or remedies
thereunder at the direction of the Collateral Agent), shall be entitled to the
benefits of this Article VII (including, without limitation, Section 7.05 as
though any such Supplemental Collateral Agents were an "Agent" under the Loan
Documents) as if set forth in full herein with respect thereto.
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(c) Any Agent may execute any of its duties under this Agreement or
any other Loan Document (including for purposes of holding or enforcing any Lien
on the Collateral (or any portion thereof) granted under the Collateral
Documents or of exercising any rights and remedies thereunder at the direction
of the Collateral Agent) by or through agents, employees or attorneys-in-fact
and shall be entitled to advice of counsel and other consultants or experts
concerning all matters pertaining to such duties. The Collateral Agent may also
from time to time, when the Collateral Agent deems it to be necessary or
desirable, appoint one or more trustees, co-trustees, collateral co-agents,
collateral subagents or attorneys-in-fact (each, a "SUPPLEMENTAL COLLATERAL
AGENT") with respect to all or any part of the Collateral; provided, however,
that no such Supplemental Collateral Agent shall be authorized to take any
action with respect to any Collateral unless and except to the extent expressly
authorized in writing by the Collateral Agent. Should any instrument in writing
from the Borrower or any other Loan Party be reasonably required by any
Supplemental Collateral Agent so appointed by the Collateral Agent to more fully
or certainly vest in and confirm to such Supplemental Collateral Agent such
rights, powers, privileges and duties, the Borrower shall, or shall cause such
Loan Party to, execute, acknowledge and deliver any and all such instruments
promptly upon request by the Collateral Agent. If any Supplemental Collateral
Agent, or successor thereto, shall die, become incapable of acting, resign or be
removed, all rights, powers, privileges and duties of such Supplemental
Collateral Agent, to the extent permitted by law, shall automatically vest in
and be exercised by the Collateral Agent until the appointment of a new
Supplemental Collateral Agent. No Agent shall be responsible for the negligence
or misconduct of any agent, attorney-in-fact or Supplemental Collateral Agent
that it selects in accordance with the foregoing provisions of this Section
7.01(c) in the absence of such Agent's gross negligence or willful misconduct.
SECTION 7.02. Agents' Reliance, Etc. Neither any Agent nor any of
their respective directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them under or in connection
with the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Agent:
(a) may consult with legal counsel (including counsel for any Loan Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (b) makes no
warranty or representation to any Lender Party and shall not be responsible to
any Lender Party for any statements, warranties or representations (whether
written or oral) made in or in connection with the Loan Documents; (c) shall not
have any duty to ascertain or to inquire as to the performance, observance or
satisfaction of any of the terms, covenants or conditions of any Loan Document
on the part of any Loan Party or the existence at any time of any Default under
the Loan Documents or to inspect the property (including the books and records)
of any Loan Party; (d) shall not be responsible to any Lender Party for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto; and (e) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram or
telecopy) believed by it to be genuine and signed or sent by the proper party or
parties.
SECTION 7.03. Royal Bank and Affiliates. With respect to its
Commitments, the Advances made by it and any Notes issued to it, Royal Bank
shall have the same rights and powers under the Loan Documents as any other
Lender Party and may exercise the same as though it were not an Agent; and the
term "Lender Party" or "Lender Parties" shall, unless otherwise expressly
indicated, include Royal Bank in its individual capacity. Royal Bank and its
affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage
in any kind of business with, any Loan Party, any of its Subsidiaries and any
Person that may do business with or own securities of any Loan Party or any such
Subsidiary, all as if Royal Bank were not an Agent and without any duty to
account therefor to the Lender Parties. No Agent
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shall have any duty to disclose any information obtained or received by it or
any of its Affiliates relating to any Loan Party or any of its Subsidiaries to
the extent such information was obtained or received in any capacity other than
as such Agent.
SECTION 7.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
SECTION 7.05. Indemnification. Each Lender Party severally agrees
to indemnify each Agent (to the extent not promptly reimbursed by the Borrower
under Section 9.04) from and against such Lender Party's ratable share
(determined as provided below) of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against such Agent in any way relating to or arising out of the Loan
Documents or any action taken or omitted by such Agent under the Loan Documents
(collectively, the "INDEMNIFIED COSTS"); provided, however, that no Lender Party
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Agent's gross negligence or willful misconduct as found in a
final judgment by a court of competent jurisdiction. Without limitation of the
foregoing, each Lender Party agrees to reimburse each Agent promptly upon demand
for its ratable share of any costs and expenses (including, without limitation,
fees and expenses of counsel) payable by the Borrower under Section 9.04, to the
extent that such Agent is not promptly reimbursed for such costs and expenses by
the Borrower. In the case of any investigation, litigation or proceeding giving
rise to any Indemnified Costs, this Section 7.05 applies whether any such
investigation, litigation or proceeding is brought by any Lender Party or any
other Person.
(b) Each Lender Party severally agrees to indemnify the Issuing Bank
(to the extent not promptly reimbursed by the Borrower under Section 9.04) from
and against such Lender Party's ratable share (determined as provided below) of
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against such Issuing
Bank in any way relating to or arising out of the Loan Documents or any action
taken or omitted by such Issuing Bank under the Loan Documents; provided,
however, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Issuing Bank's gross
negligence or willful misconduct as found in a final, non-appealable judgment by
a court of competent jurisdiction. Without limitation of the foregoing, each
Lender Party agrees to reimburse such Issuing Bank promptly upon demand for its
ratable share of any costs and expenses (including, without limitation, fees and
expenses of counsel) payable by the Borrower under Section 9.04, to the extent
that such Issuing Bank is not promptly reimbursed for such costs and expenses by
the Borrower.
(c) For purposes of this Section 7.05, each Lender Party's respective
ratable share of any amount shall be determined, at any time, according to the
sum of (i) the aggregate principal amount of the Advances outstanding at such
time and owing to such Lender Party, (ii) such Lender Party's Pro Rata Share of
the aggregate Available Amount of all Letters of Credit outstanding at such time
and (iii) such Lender Party's Unused Revolving Credit Commitments at such time;
provided that the aggregate principal amount of Letter of Credit Advances owing
to the Issuing Bank shall be considered to be owed
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to the Revolving Credit Lenders ratably in accordance with their respective
Revolving Credit Commitments. The failure of any Lender Party to reimburse any
Agent or the Issuing Bank, as the case may be, promptly upon demand for its
ratable share of any amount required to be paid by the Lender Parties to such
Agent or the Issuing Bank, as the case may be, as provided herein shall not
relieve any other Lender Party of its obligation hereunder to reimburse such
Agent or such Issuing Bank, as the case may be, for its ratable share of such
amount, but no Lender Party shall be responsible for the failure of any other
Lender Party to reimburse such Agent or such Issuing Bank, as the case may be,
for such other Lender Party's ratable share of such amount. Without prejudice to
the survival of any other agreement of any Lender Party hereunder, the agreement
and obligations of each Lender Party contained in this Section 7.05 shall
survive the payment in full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
SECTION 7.06. Successor Agents. Any Agent may resign as to any or
all of the Facilities at any time by giving written notice thereof to the Lender
Parties and the Borrower and may be removed as to all of the Facilities at any
time with or without cause by the Required Lenders; provided, however, that any
removal of the Administrative Agent will not be effective until it has also been
replaced as Collateral Agent and Issuing Bank and released from all of its
obligations in respect thereof. Upon any such resignation or removal, the
Required Lenders shall have the right, upon five Business Days' notice to the
Borrower and with the Borrower's written consent (such written consent not to be
unreasonably withheld or delayed), to appoint a successor Agent as to such of
the Facilities as to which such Agent has resigned or been removed. If no
successor Agent shall have been so appointed by the Required Lenders, and shall
have accepted such appointment, within 30 days after the retiring Agent's giving
of notice of resignation or the Required Lenders' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Lender Parties, appoint a
successor Agent, which shall be a commercial bank organized under the laws of
the United States or of any State thereof and having a combined capital and
surplus of at least $250,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent as to all of the Facilities and, in the
case of a successor Collateral Agent, upon the execution and filing or recording
of such financing statements, or amendments thereto, and such other instruments
or notices, as may be necessary or desirable, or as the Required Lenders may
request, in order to continue the perfection of the Liens granted or purported
to be granted by the Collateral Documents, such successor Agent shall succeed to
and become vested with all the rights, powers, discretion, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations under the Loan Documents. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent as to less than all of the
Facilities and, in the case of a successor Collateral Agent, upon the execution
and filing or recording of such financing statements, or amendments thereto, and
such other instruments or notices, as may be necessary or desirable, or as the
Required Lenders may request, in order to continue the perfection of the Liens
granted or purported to be granted by the Collateral Documents, such successor
Agent shall succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Agent as to such Facilities,
other than with respect to funds transfers and other similar aspects of the
administration of Borrowings under such Facilities, issuances of Letters of
Credit (notwithstanding any resignation as Agent with respect to the Letter of
Credit Facility) and payments by the Borrower in respect of such Facilities, and
the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement as to such Facilities, other than as aforesaid.
If within 45 days after written notice is given of the retiring Agent's
resignation or removal under this Section 7.06 no successor Agent shall have
been appointed and shall have accepted such appointment, then on such 45th day
(a) the retiring Agent's resignation or removal shall become effective, (b) the
retiring Agent shall thereupon be discharged from its duties and obligations
under the Loan Documents (except that in the case of any Collateral held by the
retiring Agent on behalf of the Secured Parties under any of the Collateral
Documents, the retiring Agent shall continue to hold such Collateral until such
time as a successor Agent is appointed) and (c) the Required Lenders shall
thereafter perform all duties of the retiring Agent under the Loan Documents
until such time, if any, as the Required Lenders
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appoint a successor Agent as provided above. After any retiring Agent's
resignation or removal hereunder as Agent as to any of the Facilities shall have
become effective, the provisions of this Article VII shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Agent as to
such Facilities under this Agreement.
SECTION 7.07. Other Agents; Arrangers and Managers. None of the
Lender Parties or other Persons identified on the facing page or signature pages
of this Agreement as a "syndication agent," "documentation agent," "bookrunner,"
or "lead arranger" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than to the extent expressly
set forth herein and, in the case of such Lenders, those applicable to all
Lender Parties as such. Without limiting the foregoing, none of the Lender
Parties or other Persons so identified shall have or be deemed to have any
fiduciary relationship with any Lender. Each Lender Party acknowledges that it
has not relied, and will not rely, on any of the Lender Parties or other Persons
so identified in deciding to enter into this Agreement or in taking or not
taking action hereunder.
ARTICLE VIII
SUBSIDIARY GUARANTY
SECTION 8.01. Subsidiary Guaranty; Limitation of Liability. (a)
Each Subsidiary Guarantor, jointly and severally, hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when due,
whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all Obligations of each other Loan Party
now or hereafter existing under or in respect of the Loan Documents (including,
without limitation, any extensions, modifications, substitutions, amendments or
renewals of any or all of the foregoing Obligations), whether direct or
indirect, absolute or contingent, and whether for principal, interest, premiums,
fees, indemnities, contract causes of action, costs, expenses or otherwise (such
Obligations being the "GUARANTEED OBLIGATIONS"), and agrees to pay any and all
reasonable expenses (including, without limitation, reasonable fees and expenses
of counsel) incurred by any Agent or any Lender Party in enforcing any rights
under this Subsidiary Guaranty or any other Loan Document. Without limiting the
generality of the foregoing, each Subsidiary Guarantor's liability shall extend
to all amounts that constitute part of the Guaranteed Obligations and would be
owed by any other Loan Party to any Agent or any Lender Party under or in
respect of the Loan Documents but for the fact that they are unenforceable or
not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such other Loan Party.
(b) Each Subsidiary Guarantor, and by its acceptance of this
Subsidiary Guaranty, the Administrative Agent and each Lender Party, hereby
confirms that it is the intention of all such Persons that this Subsidiary
Guaranty and the Obligations of each Subsidiary Guarantor hereunder not
constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar foreign, federal or state law to the extent applicable to this
Subsidiary Guaranty and the Obligations of each Subsidiary Guarantor hereunder.
To effectuate the foregoing intention, the Administrative Agent, the Lender
Parties and the Subsidiary Guarantors hereby irrevocably agree that the
Obligations of each Subsidiary Guarantor under this Subsidiary Guaranty at any
time shall be limited to the maximum amount as will result in the Obligations of
such Subsidiary Guarantor under this Subsidiary Guaranty not constituting a
fraudulent transfer or conveyance.
(c) Each Subsidiary Guarantor hereby unconditionally and irrevocably
agrees that in the event any payment shall be required to be made to any Lender
Party under this Subsidiary Guaranty or any other guaranty, such Subsidiary
Guarantor will contribute, to the maximum extent permitted by law,
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such amounts to each other Subsidiary Guarantor and each other guarantor so as
to maximize the aggregate amount paid to the Agents and the Lender Parties under
or in respect of the Loan Documents.
SECTION 8.02. Subsidiary Guaranty Absolute. Each Subsidiary
Guarantor guarantees that the Guaranteed Obligations will be paid strictly in
accordance with the terms of the Loan Documents, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of any Agent or any Lender Party with respect
thereto. The Obligations of each Subsidiary Guarantor under or in respect of
this Subsidiary Guaranty are independent of the Guaranteed Obligations or any
other Obligations of any other Loan Party under or in respect of the Loan
Documents, and a separate action or actions may be brought and prosecuted
against each Subsidiary Guarantor to enforce this Subsidiary Guaranty,
irrespective of whether any action is brought against the Borrower or any other
Loan Party or whether the Borrower or any other Loan Party is joined in any such
action or actions. The liability of each Subsidiary Guarantor under this
Subsidiary Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and each Subsidiary Guarantor hereby irrevocably waives any
defenses it may now have or hereafter acquire in any way relating to, any or all
of the following:
(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party under or in respect of the Loan
Documents, or any other amendment or waiver of or any consent to departure
from any Loan Document, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional credit to
any Loan Party or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any Collateral
or any other collateral, or any taking, release or amendment or waiver of,
or consent to departure from, any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any manner of application of Collateral or any other collateral,
or proceeds thereof, to all or any of the Guaranteed Obligations, or any
manner of sale or other disposition of any Collateral or any other
collateral for all or any of the Guaranteed Obligations or any other
Obligations of any Loan Party under the Loan Documents or any other assets
of any Loan Party or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
(f) any failure of any Agent or any Lender Party to disclose to any
Loan Party any information relating to the business, condition (financial
or otherwise), operations, performance, properties or prospects of any
other Loan Party now or hereafter known to such Agent or such Lender Party,
as the case may be (each Subsidiary Guarantor waiving any duty on the part
of the Agents and the Lender Parties to disclose such information);
(g) the failure of any other Person to execute or deliver this
Subsidiary Guaranty, any Subsidiary Guaranty Supplement or any other
guaranty or agreement or the release or reduction of liability of any
Subsidiary Guarantor or other guarantor or surety with respect to the
Guaranteed Obligations; or
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(h) any other circumstance (including, without limitation, any statute
of limitations) or any existence of or reliance on any representation by
any Agent or any Lender Party that might otherwise constitute a defense
available to, or a discharge of, any Loan Party or any other guarantor or
surety.
This Subsidiary Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by any Agent or any Lender Party or any
other Person upon the insolvency, bankruptcy or reorganization of the Borrower
or any other Loan Party or otherwise, all as though such payment had not been
made.
SECTION 8.03. Waivers and Acknowledgments. (a) To the fullest
extent permitted by law, each Subsidiary Guarantor hereby unconditionally and
irrevocably waives promptness, diligence, notice of acceptance, presentment,
demand for performance, notice of nonperformance, default, acceleration, protest
or dishonor and any other notice with respect to any of the Guaranteed
Obligations and this Subsidiary Guaranty and any requirement that any Agent or
any Lender Party protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Loan Party
or any other Person or any Collateral.
(b) Each Subsidiary Guarantor hereby unconditionally and irrevocably
waives any right to revoke this Subsidiary Guaranty and acknowledges that this
Subsidiary Guaranty is continuing in nature and applies to all Guaranteed
Obligations, whether existing now or in the future.
(c) Each Subsidiary Guarantor hereby unconditionally and irrevocably
waives (i) any defense arising by reason of any claim or defense based upon an
election of remedies by any Agent or any Lender Party that in any manner
impairs, reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of such
Subsidiary Guarantor or other rights of such Subsidiary Guarantor to proceed
against any of the other Loan Parties, any other guarantor or any other Person
or any Collateral and (ii) any defense based on any right of set-off or
counterclaim against or in respect of the Obligations of such Subsidiary
Guarantor hereunder.
(d) Each Subsidiary Guarantor acknowledges that the Collateral Agent
may, without notice to or demand upon such Subsidiary Guarantor and without
affecting the liability of such Subsidiary Guarantor under this Subsidiary
Guaranty, foreclose under any mortgage by nonjudicial sale, and each Subsidiary
Guarantor hereby waives any defense to the recovery by the Collateral Agent and
the other Secured Parties against such Subsidiary Guarantor of any deficiency
after such nonjudicial sale and any defense or benefits that may be afforded by
applicable law.
(e) Each Subsidiary Guarantor hereby unconditionally and irrevocably
waives any duty on the part of any Agent or any Lender Party to disclose to such
Subsidiary Guarantor any matter, fact or thing relating to the business,
condition (financial or otherwise), operations, performance, properties or
prospects of any other Loan Party or any of its Subsidiaries now or hereafter
known by such Agent or such Secured Party, as the case may be.
(f) Each Subsidiary Guarantor acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in Section
8.02 and this Section 8.03 are knowingly made in contemplation of such benefits.
SECTION 8.04. Subrogation. Each Subsidiary Guarantor hereby
unconditionally and irrevocably agrees not to exercise any rights that it may
now have or hereafter acquire against the Borrower, any other Loan Party or any
other insider guarantor that arise from the
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existence, payment, performance or enforcement of such Subsidiary Guarantor's
Obligations under or in respect of this Subsidiary Guaranty or any other Loan
Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of any Agent or any Lender Party against the
Borrower, any other Loan Party or any other insider guarantor or any Collateral,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, including, without limitation, the right to take or
receive from the Borrower, any other Loan Party or any other insider guarantor,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim, remedy or right, unless
and until all of the Guaranteed Obligations and all other amounts payable under
this Subsidiary Guaranty (other than Unmatured Surviving Obligations) shall have
been paid in full in cash, all Letters of Credit and all Secured Hedge
Agreements shall have expired or been terminated and the Commitments shall have
expired or been terminated. If any amount shall be paid to any Subsidiary
Guarantor in violation of the immediately preceding sentence at any time prior
to the latest of (a) the payment in full in cash of the Guaranteed Obligations
and all other amounts payable under this Subsidiary Guaranty (other than
Unmatured Surviving Obligations), (b) the Termination Date and (c) the latest
date of expiration or termination of all Letters of Credit and all Secured Hedge
Agreements, such amount shall be received and held in trust for the benefit of
the Secured Parties, shall be segregated from other property and funds of such
Subsidiary Guarantor and shall forthwith be paid or delivered to the
Administrative Agent in the same form as so received (with any necessary
endorsement or assignment) to be credited and applied to the Guaranteed
Obligations and all other amounts payable under this Subsidiary Guaranty,
whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as Collateral for any Guaranteed Obligations or other
amounts payable under this Subsidiary Guaranty thereafter arising. If (i) any
Subsidiary Guarantor shall make payment to any Secured Party of all or any part
of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all
other amounts payable under this Subsidiary Guaranty shall have been paid in
full in cash, (iii) the Termination Date shall have occurred and (iv) all
Letters of Credit and all Secured Hedge Agreements shall have expired or been
terminated, the Agents and the Lender Parties will, at such Subsidiary
Guarantor's request and expense, execute and deliver to such Subsidiary
Guarantor appropriate documents, without recourse and without representation or
warranty, necessary to evidence the transfer by subrogation to such Subsidiary
Guarantor of an interest in the Guaranteed Obligations resulting from such
payment made by such Subsidiary Guarantor pursuant to this Subsidiary Guaranty.
SECTION 8.05. Subsidiary Guaranty Supplements. Upon the execution
and delivery by any Person of a Subsidiary Guaranty supplement in substantially
the form of Exhibit E hereto (each, a "SUBSIDIARY GUARANTY SUPPLEMENT"), (a)
such Person shall be referred to as an "ADDITIONAL SUBSIDIARY GUARANTOR" and
shall become and be a Subsidiary Guarantor hereunder, and each reference in this
Subsidiary Guaranty to a "SUBSIDIARY GUARANTOR" shall also mean and be a
reference to such Additional Subsidiary Guarantor, and each reference in any
other Loan Document to a "SUBSIDIARY GUARANTOR" shall also mean and be a
reference to such Additional Subsidiary Guarantor, and (b) each reference herein
to "THIS SUBSIDIARY GUARANTY," "HEREUNDER," "HEREOF" or words of like import
referring to this Subsidiary Guaranty, and each reference in any other Loan
Document to the "SUBSIDIARY GUARANTY," "THEREUNDER," "THEREOF" or words of like
import referring to this Subsidiary Guaranty, shall mean and be a reference to
this Subsidiary Guaranty as supplemented by such Subsidiary Guaranty Supplement.
SECTION 8.06. Subordination. Each Subsidiary Guarantor hereby
subordinates any and all debts, liabilities and other Obligations owed to such
Subsidiary Guarantor by each other Loan Party (the "SUBORDINATED OBLIGATIONS")
to the Guaranteed Obligations to the extent and in the manner hereinafter set
forth in this Section 8.06:
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(a) Prohibited Payments, Etc. Except during the continuance of an
Event of Default, each Subsidiary Guarantor may receive regularly scheduled
payments from any other Loan Party on account of the Subordinated
Obligations. After the occurrence and during the continuance of any Event
of Default, however, unless the Required Lenders otherwise agree, no
Subsidiary Guarantor shall demand, accept or take any action to collect any
payment on account of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding under
any Bankruptcy Law relating to any other Loan Party, each Subsidiary
Guarantor agrees that the Agents and the Lender Parties shall be entitled
to receive payment in full in cash of all Guaranteed Obligations (including
all interest and expenses accruing after the commencement of a proceeding
under any Bankruptcy Law, whether or not constituting an allowed claim in
such proceeding ("POST-PETITION INTEREST")) before such Subsidiary
Guarantor receives payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance of any
Event of Default, each Subsidiary Guarantor shall, if the Administrative
Agent so requests, collect, enforce and receive payments on account of the
Subordinated Obligations as trustee for the Agents and the Lender Parties
and deliver such payments to the Administrative Agent on account of the
Guaranteed Obligations (including all Post-Petition Interest), together
with any necessary endorsements or other instruments of transfer, but
without reducing or affecting in any manner the liability of such
Subsidiary Guarantor under the other provisions of this Subsidiary
Guaranty.
(d) Administrative Agent Authorization. After the occurrence and
during the continuance of any Event of Default, the Administrative Agent is
authorized and empowered (but without any obligation to so do), in its
discretion, (i) in the name of each Subsidiary Guarantor, to collect and
enforce, and to submit claims in respect of, the Subordinated Obligations
and to apply any amounts received thereon to the Guaranteed Obligations
(including any and all Post-Petition Interest), and (ii) to require each
Subsidiary Guarantor (A) to collect and enforce, and to submit claims in
respect of, Subordinated Obligations and (B) to pay any amounts received on
such obligations to the Administrative Agent for application to the
Guaranteed Obligations (including any and all Post-Petition Interest).
SECTION 8.07. Continuing Subsidiary Guaranty; Assignments. This
Subsidiary Guaranty is a continuing guaranty and shall (a) remain in full force
and effect until the latest of (i) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Subsidiary Guaranty (other
than Unmatured Surviving Obligations), (ii) the Termination Date and (iii) the
latest date of expiration or termination of all Letters of Credit and all
Secured Hedge Agreements, (b) be binding upon each Subsidiary Guarantor, its
successors and permitted assigns and (c) inure to the benefit of and be
enforceable by the Agents and the Lender Parties and their successors,
transferees and assigns. Without limiting the generality of clause (c) of the
immediately preceding sentence, any Lender Party may assign or otherwise
transfer all or any portion of its rights and obligations under this Agreement
(including, without limitation, all or any portion of its Commitments, the
Advances owing to it and any Note or Notes held by it) to any other Person, and
such other Person shall thereupon become vested with all the benefits in respect
thereof granted to such Lender Party herein or otherwise, in each case as and to
the extent provided in Section 9.07. No Subsidiary Guarantor shall have the
right to assign its rights hereunder or any interest herein without the prior
written consent of the Secured Parties.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or any other Loan Document, nor consent to any
departure by any Loan Party therefrom, shall in any event be effective unless
the same shall be in writing and signed (or, in the case of the Collateral
Documents, consented to) by the Required Lenders and the Borrower, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that (a) no amendment,
waiver or consent shall, unless in writing and signed by all of the Lender
Parties (other than any Lender Party that is, at such time, a Defaulting Lender)
and the Borrower, do any of the following at any time:
(i) waive any of the conditions specified in Section 3.01;
(ii) change the percentage of (x) the Commitments, (y) the aggregate
unpaid principal amount of the Advances or (z) the aggregate Available
Amount of outstanding Letters of Credit that, in each case, shall be
required for the Lenders or any of them to take any action hereunder;
(iii) other than in connection with a transaction specifically
permitted hereby, release one or more Subsidiary Guarantors (or otherwise
limit such Subsidiary Guarantors' liability with respect to the Obligations
owing to the Agents and the Lender Parties under the Guaranties) if such
release or limitation is in respect of all or substantially all of the
value of the Guaranties to the Lender Parties; or
(iv) release more than 50% of the Collateral in any transaction or
series of related transactions;
and (b) no amendment, waiver or consent shall, unless in writing and signed by
the Required Lenders and each Lender specified below for such amendment, waiver
or consent, and the Borrower, as the case may be:
(i) increase the Commitments of a Lender Party without the consent of
such Lender Party;
(ii) reduce the principal of, or stated rate of interest on, the
Advances owed to a Lender Party or any fees or other amounts stated to be
payable hereunder or under the other Loan Documents to such Lender Party
without the consent of such Lender Party; or
(iii) postpone any date scheduled for any payment of principal of, or
interest on, the Advances pursuant to Section 2.04 or 2.07 or any date
fixed for any payment of fees hereunder to a Lender Party without the
consent of such Lender Party;
provided, further, that no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Bank, in addition to the Lenders required
above to take such action and the Borrower, affect the rights or
obligations of the Issuing Bank, as the case may be, under this Agreement;
and provided, further, that no amendment, waiver or consent shall, unless
in writing and signed by an Agent in addition to the Lenders required above
to take such action and the Borrower, affect the rights or duties of such
Agent under this Agreement or the other Loan Documents.
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SECTION 9.02. Notices, Etc. (a) Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications provided for hereunder shall be either (x) in writing
(including telecopy communication) and mailed, telecopied or delivered by hand
or overnight courier service, or (y) as and to the extent set forth in Section
9.02(b) and in the proviso to this Section 9.02(a), in an electronic medium and
as delivered as set forth in Section 9.02(b), if to any Loan Party, at the
Borrower's address, telecopy number or electronic mail address at ▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Farm, Chester, New Jersey 07930, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Chief
Financial Officer; if to any Initial Lender Party, at its Domestic Lending
Office, telecopy number or electronic mail address specified opposite its name
on Schedule I hereto; if to any other Lender Party, at its Domestic Lending
Office, telecopy number or electronic mail address specified in the Assignment
and Acceptance pursuant to which it became a Lender Party; if to the Collateral
Agent or the Administrative Agent, at its address, telecopy number or electronic
mail address at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ Bank Plaza,
Toronto, Ontario M5J 2W7, Attention Manager, Agency, telecopy number:
▇▇▇-▇▇▇-▇▇▇▇, or, as to any party, at such other address, telecopy number or
electronic mail address as shall be designated by such party in a written notice
to the other parties; provided, however, that materials and information
described in Section 9.02(b) shall be delivered to the Administrative Agent in
accordance with the provisions thereof or as otherwise specified to the Borrower
by the Administrative Agent in writing. All such notices and other
communications shall, when mailed, telegraphed or telecopied, be effective when
deposited in the mails, delivered to the telegraph company or transmitted by
telecopier, respectively, except that notices and communications to any Agent
pursuant to Article II, III or VII shall not be effective until received by such
Agent. Delivery by telecopier of an executed counterpart of a signature page to
any amendment or waiver of any provision of this Agreement or the Notes or of
any Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of an original executed counterpart thereof. As agreed to among the
Borrower, including as set forth in subsection (b) below, the Administrative
Agent and the applicable Lender Parties from time to time, notices and other
communications may also be delivered by e-mail to the e-mail address of a
representative of the applicable Person provided from time to time by such
Person.
(b) The Borrower hereby agrees that it will provide to the
Administrative Agent all information, documents and other materials that it is
obligated to furnish to the Administrative Agent pursuant to the Loan Documents,
including, without limitation, all notices, requests, financial statements,
financial and other reports, certificates and other information materials, but
excluding (i) any Notice of Borrowing, Notice of Issuance, Notice of Renewal or
notice of Conversion pursuant to Section 2.09, (ii) any notice of any prepayment
of the Advances pursuant to Section 2.06, (iii) any notice of a Default or Event
of Default under this Agreement or (iv) any certificate, agreement or other
document required to be delivered to satisfy any condition set forth in Article
III of this Agreement (all such non-excluded communications being referred to
herein collectively as "COMMUNICATIONS"), by delivering the Communications by
e-mail to an e-mail address specified by the Administrative Agent to the
Borrower. In addition, the Borrower agrees to continue to provide the
Communications to the Administrative Agent in the manner specified in the Loan
Documents but only to the extent reasonably requested by the Administrative
Agent. The Borrower further agrees that the Administrative Agent may make the
Communications available to the Lenders by posting the Communications on
Intralinks or a substantially similar electronic transmission system (the
"PLATFORM").
(c) The Platform is provided on an "as is" and "as available" basis
and the Agent Parties (as defined below) make no representation or warranty of
any kind as the accuracy or completeness of the Communications or as to the
adequacy of the Platform, and expressly disclaim any liability for any errors or
omissions in the Communications. In no event shall the Administrative Agent or
any of its Affiliates or any of their respective officers, directors, employees,
agents, Advisors or representatives (collectively, the "AGENT PARTIES") have any
liability to the Borrower, any Lender Party or any other Person or entity for
damages of any kind, including, without limitation, any direct or indirect,
special, incidental or
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consequential damages, losses or expenses (whether in tort, contract or
otherwise) arising out of the Borrower's or the Administrative Agent's delivery
of any Communications through the internet, except to the extent the liability
of any Agent Party is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted primarily from such Agent Party's gross
negligence or willful misconduct.
(d) The Administrative Agent agrees that the receipt of the
Communications by the Administrative Agent at its e-mail address set forth above
shall constitute effective delivery of the Communications to the Administrative
Agent for purposes of the Loan Documents. Each Lender Party agrees that notice
to it (as provided in the next sentence) specifying that the Communications have
been posted to the Platform shall constitute effective delivery of the
Communications to such Lender Party for purposes of the Loan Documents. Each
Lender Party agrees to (i) notify the Administrative Agent in writing (including
by e-mail) from time to time of such Lender Party's e-mail address to which the
foregoing notice may be sent by electronic transmission and (ii) that the
foregoing notice may be sent to such e-mail address. Nothing herein shall
prejudice the right of the Administrative Agent or any Lender Party to give any
notice or other communication pursuant to any Loan Document in any other manner
specified in such Loan Document.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender Party or any Agent to exercise, and no delay in exercising, any right
hereunder or under any Note or any other Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrower agrees to pay
on demand (i) all reasonable out-of-pocket costs and expenses of each Agent in
connection with the preparation, execution, delivery, administration,
modification and amendment of, or any consent or waiver under, the Loan
Documents (including, without limitation, (A) all reasonable out-of-pocket due
diligence, collateral review, syndication, transportation, duplication,
appraisal, audit, title insurance, consultant, lien search, filing and recording
fees and expenses and (B) the reasonable out-of-pocket fees and expenses of
counsel for the Agents, collectively, with respect thereto, with respect to
advising each Agent as to its rights and responsibilities, or the perfection,
protection or preservation of rights or interests, under the Loan Documents,
with respect to negotiations with any Loan Party or with other creditors of any
Loan Party or any of its Subsidiaries arising out of any Default or any events
or circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto) and (ii) all costs and expenses of each Agent and
each Lender Party in connection with the enforcement of the Loan Documents,
whether in any action, suit or litigation, or any bankruptcy, insolvency or
other similar proceeding affecting creditors' rights generally (including,
without limitation, the reasonable fees and expenses of counsel for the
Administrative Agent and each Lender Party with respect thereto).
(b) The Borrower agrees to indemnify, defend and save and hold
harmless each Agent, each Lender Party and each of their Affiliates and their
respective officers, directors, employees, agents and advisors (each, an
"INDEMNIFIED PARTY") from and against, and shall pay on demand, any and all
actual claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation or proceeding or preparation of a
defense in connection therewith) (i) the Facilities, the actual or proposed use
of the proceeds of the Advances or the Letters of Credit, the Loan Documents or
any of the transactions contemplated thereby or (ii) the actual or alleged
presence of
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Hazardous Materials on any owned or leased property of any Loan Party or any of
its Subsidiaries in violation of any Environmental Law or any Environmental
Action relating in any way to any Loan Party or any of its Subsidiaries, except
to the extent such claim, damage, loss, liability or expense is found in a final
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 9.04(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by any Loan Party, its
directors, shareholders or creditors or any Indemnified Party or any other
Person, whether or not any Indemnified Party is otherwise a party thereto. The
Borrower also agrees not to assert any claim against any Agent, any Lender Party
or any of their Affiliates, or any of their respective officers, directors,
employees, agents and advisors, on any theory of liability, for special,
indirect, consequential or punitive damages arising out of or otherwise relating
to the Facilities, the actual or proposed use of the proceeds of the Advances or
the Letters of Credit, the Loan Documents or any of the transactions
contemplated by the Loan Documents. The Borrower shall not be obligated to
reimburse any Indemnified Party for the legal fees and expenses of more than one
law firm (and one local counsel in each appropriate jurisdiction) in any loss,
claim, action or proceeding arising out of the same facts and circumstances,
except to the extent that any Indemnified Party reasonably believes that the use
of a single counsel would result in a conflict of interest. No Indemnified Party
shall settle any claim, action or proceeding in which such Indemnified Party
seeks indemnification hereunder without the Borrower's written consent, such
consent not to be unreasonably withheld or delayed.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender Party
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.06, 2.09(b)(i) or 2.10(d),
acceleration of the maturity of the Advances pursuant to Section 6.01 or for any
other reason, or by an Eligible Assignee to a Lender Party other than on the
last day of the Interest Period for such Advance upon an assignment of rights
and obligations under this Agreement pursuant to Section 9.07 as a result of a
demand by the Borrower pursuant to Section 2.10(e) or Section 9.10, or if the
Borrower fails to make any payment or prepayment of an Advance for which a
notice of prepayment has been given or that is otherwise required to be made,
whether pursuant to Section 2.04, 2.06 or 6.01 or otherwise, the Borrower shall,
upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender Party any amounts required to compensate such Lender Party for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment or Conversion or such failure to pay or prepay, as the case may be,
including, without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender Party to fund or maintain such
Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by the Administrative Agent or any Lender
Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.10 and 2.12 (other than any
reimbursement, indemnity or other obligation of any Loan Party under any of
Sections 2.10 and 2.12 if demand therefor is not made within after 180 days
after the incurrence of the cost, tax or other obligation for which such
reimbursement, indemnity or performance by such Loan Party is sought) and this
Section 9.04 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under any of the other Loan Documents.
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84
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Advances due and payable pursuant to the
provisions of Section 6.01, each Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Agent, such Lender Party
or such Affiliate to or for the credit or the account of the Borrower against
any and all of the Obligations of the Borrower now or hereafter existing under
the Loan Documents, irrespective of whether such Agent or such Lender Party
shall have made any demand under this Agreement or the other Loan Documents and
although such Obligations may be unmatured. Each Agent and each Lender Party
agrees promptly to notify the Borrower after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Agent and each
Lender Party and their respective Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Agent, such Lender Party and their respective Affiliates may
have.
SECTION 9.06. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and each Agent and
the Administrative Agent shall have been notified by each Initial Lender Party
that such Initial Lender Party has executed it and thereafter shall be binding
upon and inure to the benefit of the Borrower, each Agent and each Lender Party
and their respective successors and assigns, except that the Borrower shall not
have the right to assign its rights hereunder or any interest herein without the
prior written consent of each Lender Party.
SECTION 9.07. Assignments and Participations. (a) Each Lender may
assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment or Commitments, the Advances owing to it and the Note
or Notes held by it); provided, however, that (i) each such assignment shall be
of a uniform, and not a varying, percentage of all rights and obligations under
and in respect of any or all Facilities, (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender,
an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of
all of a Lender's rights and obligations under this Agreement, the aggregate
amount of the Commitments being assigned to such Eligible Assignee pursuant to
such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $1,000,000 (or such
lesser amount as shall be approved by the Administrative Agent and, so long as
no Event of Default shall have occurred and be continuing at the time of
effectiveness of such assignment, the Borrower) under each Facility for which a
Commitment is being assigned, (iii) each such assignment shall be to an Eligible
Assignee, (iv) each such assignment made as a result of a demand by the Borrower
pursuant to Section 2.10(e) or Section 9.10 shall be arranged by the Borrower
after consultation with the Administrative Agent and shall be either an
assignment of all of the rights and obligations of the assigning Lender under
this Agreement or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that
together cover all of the rights and obligations of the assigning Lender under
this Agreement, (v) no Lender shall be obligated to make any such assignment as
a result of a demand by the Borrower pursuant to Section 2.10(e) or Section 9.10
unless and until such Lender shall have received one or more payments from
either the Borrower or one or more Eligible Assignees in an aggregate amount at
least equal to the aggregate outstanding principal amount of the Advances owing
to such Lender, together with accrued interest thereon to the date of payment of
such principal amount and all other amounts payable to such Lender under this
Agreement and (vi) the parties to each such assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording in the Register,
an Assignment and Acceptance, and the forms described in Section 2.12(e),
together with any Note or Notes (if any) subject to such assignment and a
processing and
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85
recordation fee of $3,500; provided, however, that for each such assignment made
as a result of a demand by the Borrower pursuant to Section 2.10(e) or Section
9.10, the Borrower shall pay to the Administrative Agent the applicable
processing and recordation fee.
(b) Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in such Assignment and Acceptance, (i) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the
case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights (other than
its rights under Sections 2.10, 2.12 and 9.04 to the extent any claim thereunder
relates to an event arising prior to such assignment) and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the remaining portion of an assigning Lender's or
Issuing Bank's rights and obligations under this Agreement, such Lender or
Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each
Lender Party assignor thereunder and each assignee thereunder confirm to and
agree with each other and the other parties thereto and hereto as follows: (i)
other than as provided in such Assignment and Acceptance, such assigning Lender
Party makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; (ii) such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or observance by any
Loan Party of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon any Agent, such assigning Lender Party
or any other Lender Party and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to such Agent by the terms
hereof and thereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender or Issuing Bank, as the
case may be.
(d) The Administrative Agent, acting for this purpose (but only for
this purpose) as the agent of the Borrower, shall maintain at its address
referred to in Section 9.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lender Parties and the Commitment under each Facility of, and
principal amount of the Advances owing under each Facility to, each Lender Party
from time to time (the "REGISTER"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agents and the Lender Parties may treat each Person whose name is
recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Agent or any Lender Party at any reasonable time and from time to time upon
reasonable prior notice.
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86
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower and each other Agent. In the case of any assignment by a Lender, within
five Business Days after its receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Administrative Agent in exchange for
the surrendered Note or Notes (if any) a new Note to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it under each Facility
pursuant to such Assignment and Acceptance and, if any assigning Lender that had
a Note or Notes prior to such assignment has retained a Commitment hereunder
under such Facility, a new Note to the order of such assigning Lender in an
amount equal to the Commitment retained by it hereunder. Such new Note or Notes
shall be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A hereto.
(f) The Issuing Bank may assign to one or more Eligible Assignees all
or a portion of its rights and obligations under the undrawn portion of its
Letter of Credit Fronting Commitment at any time; provided, however, that (i)
each such assignment shall be to an Eligible Assignee and (ii) the parties to
each such assignment shall execute and deliver to the Administrative Agent, for
its acceptance and recording in the Register, an Assignment and Acceptance,
together with a processing and recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates) in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
any Note or Notes held by it); provided, however, that (i) such Lender Party's
obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender Party shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Agents and the other Lender
Parties shall continue to deal solely and directly with such Lender Party in
connection with such Lender Party's rights and obligations under this Agreement
and (v) no participant under any such participation shall have any right to
approve any amendment or waiver of any provision of any Loan Document, or any
consent to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Advances or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, postpone any date fixed for any payment of
principal of, or interest on, the Advances or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, or release
all or substantially all of the Collateral or the value of the Guaranties.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement,
any Lender Party may at any time (and without the consent of the Administrative
Agent or the Borrower) create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and any Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System; provided that no
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87
such pledge or assignment shall release such Lender Party from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
Party as a party hereto.
(j) Notwithstanding anything to the contrary contained herein, any
Lender that is a fund that invests in bank loans may create a security interest
in all or any portion of the Advances owing to it and the Note or Notes held by
it to the trustee for holders of obligations owed, or securities issued, by such
fund as security for such obligations or securities, provided, however, that
unless and until such trustee actually becomes a Lender in compliance with the
other provisions of this Section 9.07, (i) no such pledge shall release the
pledging Lender from any of its obligations under the Loan Documents and (ii)
such trustee shall not be entitled to exercise any of the rights of a Lender
under the Loan Documents even though such trustee may have acquired ownership
rights with respect to the pledged interest through foreclosure or otherwise.
(k) Notwithstanding anything to the contrary contained herein, any
Lender Party (a "GRANTING LENDER") may grant to a special purpose funding
vehicle identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrower (an "SPC") the option to provide
all or any part of any Advance that such Granting Lender would otherwise be
obligated to make pursuant to this Agreement; provided, however, that (i)
nothing herein shall constitute a commitment by any SPC to fund any Advance, and
(ii) if an SPC elects not to exercise such option or otherwise fails to make all
or any part of such Advance, the Granting Lender shall be obligated to make such
Advance pursuant to the terms hereof. The making of an Advance by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Advance were made by such Granting Lender. Each party
hereto hereby agrees that (i) no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement for which a Lender Party would
be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.10 and
2.12 (or any other increased costs protection provision) and (iii) the Granting
Lender shall for all purposes, including, without limitation, the approval of
any amendment or waiver of any provision of any Loan Document, remain the Lender
Party of record hereunder. In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior Debt of any SPC, it will not
institute against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding
under the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained in this Agreement, any SPC may (i) with
notice to, but without prior consent of, the Borrower and the Administrative
Agent, assign all or any portion of its interest in any Advance to the Granting
Lender and (ii) disclose on a confidential basis any non-public information
relating to its funding of Advances to any rating agency, commercial paper
dealer or provider of any surety or guarantee or credit or liquidity enhancement
to such SPC. This subsection (k) may not be amended without the prior written
consent of each Granting Lender, all or any part of whose Advances are being
funded by the SPC at the time of such amendment.
SECTION 9.08. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery by telecopier of an executed counterpart of a signature page
to this Agreement shall be effective as delivery of an original executed
counterpart of this Agreement.
SECTION 9.09. No Liability of the Issuing Bank. The Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
any Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of
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88
documents, or of any endorsement thereon, even if such documents should prove to
be in any or all respects invalid, insufficient, fraudulent or forged; (c)
payment by such Issuing Bank against presentation of documents that do not
comply with the terms of a Letter of Credit, including failure of any documents
to bear any reference or adequate reference to the Letter of Credit; or (d) any
other circumstances whatsoever in making or failing to make payment under any
Letter of Credit, except that the Borrower shall have a claim against such
Issuing Bank, and such Issuing Bank shall be liable to the Borrower, to the
extent of any direct, but not consequential, damages suffered by the Borrower
that the Borrower proves were caused by (i) such Issuing Bank's bad faith,
willful misconduct or gross negligence as determined in a final judgment by a
court of competent jurisdiction in determining whether documents presented under
any Letter of Credit comply with the terms of the Letter of Credit or (ii) such
Issuing Bank's willful failure to make lawful payment under a Letter of Credit
after the presentation to it of a draft and certificates strictly complying with
the terms and conditions of the Letter of Credit. In furtherance and not in
limitation of the foregoing, such Issuing Bank may accept documents that appear
on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.
SECTION 9.10. Non-Consenting Lenders. If at any time, any Lender
becomes a Non-Consenting Lender, then the Borrower may, at its sole cost and
expense, on five Business Days' prior written notice to the Administrative Agent
and such Lender, replace such Lender by causing such Lender to (and such Lender
shall be obligated to) assign pursuant to Section 9.07 all of its rights and
obligations under this Agreement to one or more Eligible Assignees; provided
that neither the Administrative Agent nor any Lender shall have any obligation
to the Borrower to find a replacement Lender or other such Person; provided,
further, that such Non-Consenting Lender shall be entitled to receive the full
outstanding principal amount of Advances so assigned, together with accrued
interest and fees payable in respect of such Advances as of the date of such
assignment.
SECTION 9.11. Confidentiality. Neither any Agent nor any Lender
Party shall disclose any Confidential Information to any Person without the
consent of the Borrower, other than (a) to such Agent's or such Lender Party's
Affiliates and their officers, directors, employees, agents and advisors and to
actual or prospective Eligible Assignees and participants, and then only on a
confidential basis, (b) as required by any law, rule or regulation or judicial
process, provided that to the extent practicable and permitted by applicable
law, the applicable Agent or Lender Party shall notify the Borrower of any
disclosure under this clause (b), (c) as requested or required by any state,
Federal or foreign authority or examiner (including the National Association of
Insurance Commissioners or any similar organization or quasi-regulatory
authority) regulating such Lender Party, (d) to any rating agency when required
by it, provided that, prior to any such disclosure, such rating agency shall
undertake to preserve the confidentiality of any Confidential Information
relating to the Loan Parties received by it from such Lender Party, (e) in
connection with any litigation or proceeding to which such Agent or such Lender
Party or any of its Affiliates may be a party or (f) in connection with the
exercise of any right or remedy under this Agreement or any other Loan Document;
provided that Agent and Lender Parties shall notify the Borrower of any
disclosure under clauses (b), (c) or (e) and shall cooperate with Borrower to
obtain confidential treatment of such Confidential Information.
SECTION 9.12. Release of Collateral. Upon the sale, lease,
transfer or other disposition of any item of Collateral of any Loan Party
(including, without limitation, as a result of the sale, in accordance with the
terms of the Loan Documents, of the Loan Party that owns such Collateral) in
accordance with the terms of the Loan Documents, the security interests granted
under the Loan Documents in such Collateral (and in the case of a sale of all of
the Equity Interests of a Subsidiary Guarantor, the Subsidiary Guaranty) shall
automatically terminate and the Collateral Agent will, at the Borrower's
expense, execute and deliver to such Loan Party such documents as such Loan
Party may reasonably request to evidence the release of such Subsidiary Guaranty
or item of Collateral from the
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89
assignment and security interest granted under the Collateral Documents in
accordance with the terms of the Loan Documents.
SECTION 9.13. Patriot Act Notice. Each Lender Party and each
Agent (for itself and not on behalf of any Lender Party) hereby notifies the
Loan Parties that pursuant to the requirements of the Patriot Act, it is
required to obtain, verify and record information that identifies each Loan
Party, which information includes the name and address of such Loan Party and
other information that will allow such Lender Party or such Agent, as
applicable, to identify such Loan Party in accordance with the Patriot Act. The
Borrower shall, and shall cause each of its Subsidiaries to, provide to the
extent commercially reasonable, such information and take such actions as are
reasonably requested by any Agents or any Lender Party in order to assist the
Agents and the Lender Parties in maintaining compliance with the Patriot Act.
SECTION 9.14. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or Federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the fullest extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Loan Documents in the
courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any of the other Loan
Documents to which it is a party in any New York State or Federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
SECTION 9.15. Governing Law. This Agreement and the Notes shall
be governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 9.16. Waiver of Jury Trial. Each of the Borrower, the
Agents and the Lender Parties irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to any of the Loan Documents, the
Advances, the Letters of Credit or the actions of any Agent or any Lender Party
in the negotiation, administration, performance or enforcement thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective representatives thereunto duly authorized, as of
the date first above written.
▇▇▇▇▇ RESPIRATORY THERAPEUTICS, INC.,
as Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Address for notices to Borrower:
▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇ RESPIRATORY OPERATIONS SUB, INC.,
as Subsidiary Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
▇▇▇▇▇ RESPIRATORY PRODUCTS, INC.,
as Subsidiary Guarantor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
[Signatures continued on next page]
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
▇▇▇▇▇ RESPIRATORY OPERATIONS, INC.,
as Subsidiary Guarantor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Address for notices to each of the
Subsidiary Guarantors:
c/o Adams Respiratory Therapeutics, Inc.
▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
ROYAL BANK OF CANADA, as Administrative
Agent and Collateral Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: Manager, Agency
---------------------------------
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
WACHOVIA BANK, N.A., as Documentation
Agent and Initial Lender
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Title: Senior Vice President
---------------------------------
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
INITIAL LENDERS
ROYAL BANK OF CANADA, as Initial Lender,
Initial Issuing Bank and Swingline
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Title: Authorized Signatory
---------------------------------
CITIZENS BANK OF PENNSYLVANIA,
as Initial Lender
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
COMMERCE BANK, N.A.,
as Initial Lender
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
SILICON VALLEY BANK,
as Initial Lender
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
REVOLVING DOMESTIC EURODOLLAR
CREDIT L/C FRONTING SWINGLINE LENDING LENDING
NAME OF INITIAL LENDER COMMITMENT COMMITMENT COMMITMENT OFFICE OFFICE
---------------------- ---------- ------------ ----------- -------- ----------
Royal Bank of Canada $ 15,000,00 $30,000,00 $10,000,000
Citizens Bank of Pennsylvania $ 8,750,000
Commerce Bank, N.A. $ 8,750,000
Silicon Valley Bank $ 8,750,000
Wachovia Bank, N.A. $ 8,750,000
----------- ----------- -----------
TOTAL $50,000,000 $30,000,000 $10,000,000
=========== =========== ===========
▇▇▇▇▇ Respiratory - Revolving Credit Agreement
EXHIBIT A - FORM OF
REVOLVING CREDIT NOTE
[INSERT AMOUNT] Dated: ____________, 200_
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇ RESPIRATORY THERAPEUTICS,
INC., a corporation organized under the laws of the State of Delaware (the
"Borrower"), HEREBY PROMISES TO PAY to the order of [insert name of institution]
(the "Lender") for the account of its lending office (as specified to the
Borrower in writing) on the Termination Date (as defined in the Credit Agreement
referred to below) the principal sum of U.S.$_____________ or, if less, the
aggregate principal amount of the Advances made by the Lender to the Borrower
pursuant to the Senior Revolving Credit Agreement dated as of September 26, 2006
among the Borrower, the Subsidiary Guarantors party thereto, Royal Bank of
Canada, as Administrative Agent and the Lenders from time to time party thereto
(as amended or modified from time to time, the "Credit Agreement"; the terms
defined therein being used herein as therein defined) outstanding on the
Termination Date.
The Borrower promises to pay interest on the unpaid principal amount
of each Advance from the date of such Advance until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to the Lender at the account specified by the Lender in same
day funds. Each Advance owing to the Lender by the Borrower pursuant to the
Credit Agreement, and all payments made on account of principal thereof, shall
be recorded by the Lender and, prior to any transfer hereof, endorsed on the
grid attached hereto which is part of this Revolving Credit Note.
This Revolving Credit Note is the Note referred to in, and is entitled
to the benefits of, the Credit Agreement. The Credit Agreement, among other
things, (i) provides for the making of Advances by the Lender to the Borrower
from time to time in an aggregate amount not to exceed at any time outstanding
the U.S. dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such Advance being evidenced by this Revolving Credit Note,
and (ii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
This Revolving Credit Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
▇▇▇▇▇ RESPIRATORY THERAPEUTICS, INC.
By
-------------------------------------
Title:
---------------------------------
ADVANCES AND PAYMENTS OF PRINCIPAL
AMOUNT OF PRINCIPAL UNPAID PRINCIPAL
DATE AMOUNT OF ADVANCE PAID OR PREPAID BALANCE NOTATION MADE BY
---- ----------------- ------------------- ---------------- ----------------
EXHIBIT B
FORM OF NOTICE OF BORROWING
Royal Bank of Canada - Agency Services
12th Floor, Royal Bank Plaza, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Manager
[Date]
Ladies and Gentlemen:
Reference is made to that certain Senior Revolving Credit Agreement
(the "Credit Agreement"; the terms defined therein being used herein as therein
defined) dated as of September 26, 2006 among the undersigned, as Borrower, the
Subsidiary Guarantors party thereto, Royal Bank of Canada, as Administrative
Agent, and the Lenders from time to time party thereto. Pursuant to Section 2.02
of the Credit Agreement, the undersigned hereby gives you irrevocable notice of
a request for a[n] [Revolving Credit/ Letter of Credit/ Swingline] Advance under
the Credit Agreement. In that connection, the undersigned sets forth below the
information relating to such requested Advance (the "Proposed Advance") as
required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Advance is _______________, 200_.
(ii) The Type of Advances comprising the Proposed Advance is [Base
Rate Advance] [LIBOR Advance].
(iii) The aggregate amount of the Proposed Advance is
$_______________.
(vi) The proceeds of such Advances should be disbursed to the
following account:
[Bank]
[Bank address]
[Bank address]
[Account name]
[Account number]
[ABA #]
Very truly yours,
▇▇▇▇▇ RESPIRATORY THERAPEUTICS, INC.
By:
------------------------------------
Title:
---------------------------------
3
EXHIBIT C
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Senior Revolving Credit Agreement dated as of
September 26 2006 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"; the terms defined therein,
unless otherwise defined herein, being used herein as therein defined) among
▇▇▇▇▇ RESPIRATORY THERAPEUTICS, INC., a Delaware corporation (the "BORROWER"),
the Subsidiary Guarantors party thereto, Royal Bank of Canada, as Administrative
Agent, and the Lenders from time to time party thereto.
Each "Assignor" referred to on Schedule 1 hereto (each, an "ASSIGNOR")
and each "Assignee" referred to on Schedule 1 hereto (each, an "ASSIGNEE")
agrees severally with respect to all information relating to it and its
assignment hereunder and on Schedule 1 hereto as follows:
1. Such Assignor hereby sells and assigns, without recourse except as
to the representations and warranties made by it herein, to such Assignee, and
such Assignee hereby purchases and assumes from such Assignor, an interest in
and to such Assignor's rights and obligations under the Credit Agreement as of
the Effective Date (as defined herein) equal to the percentage interest
specified on Schedule 1 hereto of all outstanding rights and obligations under
the Credit Agreement. After giving effect to such sale and assignment, such
Assignee's Commitments and the amount of the Advances owing to such Assignee
will be as set forth on Schedule 1 hereto.
2. Such Assignor (i) represents and warrants that its name set forth
on Schedule 1 hereto is its legal name, that it is the legal and beneficial
owner of the interest or interests being assigned by it hereunder and that such
interest or interests are free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any Loan
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, any
Loan Document or any other instrument or document furnished pursuant thereto;
(iii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Loan Party or the performance or
observance by any Loan Party of any of its obligations under any Loan Document
or any other instrument or document furnished pursuant thereto; and (iv)
attaches the Note or Notes (if any) held by such Assignor and requests that the
Administrative Agent exchange such Note or Notes for a new Note or Notes payable
to the order of such Assignee in an amount equal to the Commitments assumed by
such Assignee pursuant hereto or new Notes payable to the order of such Assignee
in an amount equal to the Commitments assumed by such Assignee pursuant hereto
and such Assignor in an amount equal to the Commitments retained by such
Assignor under the Credit Agreement, respectively, as specified on Schedule 1
hereto.
3. Such Assignee (i) confirms that, to the extent it has so requested,
it has received a copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 4.01 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon any Agent, any Assignor or
any other Lender Party and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iii) represents and
warrants that its name set forth on Schedule 1 hereto is its legal name; (iv)
confirms that it is an Eligible Assignee; (v) appoints and authorizes each Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to such Agent by the terms
thereof, together with such powers and discretion as are reasonably incidental
thereto; (vi) agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of the Credit Agreement are required to be performed by it as a Lender Party;
and (vii) attaches any U.S. Internal Revenue Service forms required under
Section 2.12 of the Credit Agreement (and undertakes to deliver to the
Administrative Agent originals of any such U.S. Internal Revenue Service form).
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Administrative Agent for acceptance and recording by the
Administrative Agent. The effective date for this Assignment and Acceptance (the
"EFFECTIVE DATE") shall be the date of acceptance hereof by the Administrative
Agent.
5. Upon such acceptance and recording by the Administrative Agent, as
of the Effective Date, (i) such Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder and (ii) such Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement (other than its
rights and obligations under the Loan Documents that are specified under the
terms of such Loan Documents to survive the payment in full of the Obligations
of the Loan Parties under the Loan Documents to the extent any claim thereunder
relates to an event arising prior to the Effective Date of this Assignment and
Acceptance) and, if this Assignment and Acceptance covers all of the remaining
portion of the rights and obligations of such Assignor under the Credit
Agreement, such Assignor shall cease to be a party thereto.
6. Upon such acceptance and recording by the Administrative Agent,
from and after the Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement and the other Loan Documents in respect of
the interest assigned hereby (including, without limitation, all payments of
principal, interest and commitment fees with respect thereto) to such Assignee.
Such Assignor and such Assignee shall make all appropriate adjustments in
payments under the Credit Agreement and the other Loan Documents for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of an original executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, each Assignor and each Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
[The Remainder of this Page Has Intentionally Been Left Blank]
2
Effective Date:
(1)__________, 200_
ASSIGNOR
__________, as Assignor
[Type or print legal name of Assignor]
By
-------------------------------------
Title:
--------------------------------
Dated: __________, 200_
----------
(1) This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Administrative Agent.
3
ASSIGNEE
___________, as Assignee
[Type or print legal name of Assignee]
By
-------------------------------------
Title:
---------------------------------
Dated: __________, 200_
Lending Office:
------------------------
4
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
ASSIGNORS:
REVOLVING CREDIT FACILITY
Percentage interest assigned __________%
Revolving Credit Commitment assigned $__________
Aggregate outstanding principal amount of Revolving Credit
Advances assigned $__________
Principal amount of Revolving Credit Note payable to ASSIGNOR $__________
LETTER OF CREDIT FACILITY
Letter of Credit Commitment assigned $__________
Letter of Credit Commitment retained $__________
5
EXHIBIT D
FORM OF SECURITY AGREEMENT SUPPLEMENT
FORM OF SECURITY AGREEMENT SUPPLEMENT
[Date of Security Agreement Supplement]
ROYAL BANK OF CANADA,
as the Collateral Agent for the
Secured Parties referred to in the
Credit Agreement referred to below
__________________________________
__________________________________
Attn: ____________________________
▇▇▇▇▇ RESPIRATORY THERAPEUTICS, INC.
Ladies and Gentlemen:
Reference is made to the Senior Revolving Credit Agreement dated as of
September 26, 2006 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Credit Agreement") among ▇▇▇▇▇ RESPIRATORY
THERAPEUTICS, INC., as Borrower, Subsidiary Guarantors party thereto, and ROYAL
BANK OF CANADA ("Royal Bank"), together with its successors and assigns, as
Administrative Agent, and the Lenders from time to time party thereto, and (iii)
the Security Agreement dated July 11, 2006 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "Security Agreement")
made by the Grantors from time to time party thereto in favor of Royal Bank as
collateral agent (together with any successor collateral agent, the "Collateral
Agent") for the Secured Parties under the Loan Documents. Terms defined in the
Credit Agreement or the Security Agreement and not otherwise defined herein are
used herein as defined in the Credit Agreement or the Security Agreement.
SECTION 1. Grant of Security. The undersigned hereby grants to the
Collateral Agent, for the ratable benefit of the Secured Parties under the Loan
Documents, a security interest in, all of its right, title and interest in and
to all of the Collateral of the undersigned, whether now owned or hereafter
acquired by the undersigned, wherever located and whether now or hereafter
existing or arising, including, without limitation, the property and assets of
the undersigned set forth on the attached supplemental schedules to the
Schedules to the Security Agreement.
SECTION 2. Security for Obligations. The grant of a security interest
in the Collateral by the undersigned under this Security Agreement Supplement
and the Security Agreement secures the payment of all Obligations of the
undersigned now or hereafter existing under or in respect of the Loan Documents,
whether direct or indirect, absolute or contingent, and whether for principal,
reimbursement obligations, interest, premiums, penalties, fees,
indemnifications, contract causes of action, costs, expenses or otherwise.
Without limiting the generality of the foregoing, this Security Agreement
Supplement and the Security Agreement secure the payment of all amounts that
constitute part of the Secured Obligations and that would be owed by the
undersigned to any Secured Party under the Loan Documents but for the fact that
such Secured Obligations are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving a Loan Party.
SECTION 3. Supplements to Security Agreement Schedules. The
undersigned has attached hereto supplemental Schedules I through IV to Schedules
I through IV, respectively, to the
6
Security Agreement, and the undersigned hereby certifies, as of the date first
above written, that such supplemental schedules have been prepared by the
undersigned in substantially the form of the equivalent Schedules to the
Security Agreement and are complete and correct.
SECTION 4. Representations and Warranties. The undersigned hereby
makes each representation and warranty set forth in Section 4 of the Security
Agreement (as supplemented by the attached supplemental schedules) to the same
extent as each other Grantor.
SECTION 5. Obligations Under the Security Agreement. The undersigned
hereby agrees, as of the date first above written, to be bound as a Grantor by
all of the terms and provisions of the Security Agreement to the same extent as
each of the other Grantors. The undersigned further agrees, as of the date first
above written, that each reference in the Security Agreement to an "Additional
Grantor" or a "Grantor" shall also mean and be a reference to the undersigned.
SECTION 6. Governing Law. This Security Agreement Supplement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
Very truly yours,
[NAME OF ADDITIONAL GRANTOR]
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address for notices:
__________________________
__________________________
_______________
7
EXHIBIT E
FORM OF SUBSIDIARY GUARANTY SUPPLEMENT
_________ __, 20__
Royal Bank of Canada, as Administrative Agent
under the Credit Agreement referred to below
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ Bank Plaza,
Toronto, Ontario M5J 2W7
Attn: Manager, Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Senior Revolving Credit Agreement dated as of September 26, 2006 among ▇▇▇▇▇
Respiratory Therapeutics, Inc., a Delaware corporation (the "BORROWER"), the
Subsidiary Guarantors party thereto, Royal Bank of Canada, as Collateral Agent
and Administrative Agent, and the Lenders from time to time party thereto.
Ladies and Gentlemen:
Reference is made to the above-captioned Credit Agreement and to the
Guaranty incorporated therein (such Guaranty, as in effect on the date hereof
and as it may hereafter be amended, supplemented or otherwise modified from time
to time, together with this Guaranty Supplement, being the "GUARANTY"). The
capitalized terms defined in the Credit Agreement and not otherwise defined
herein are used herein as therein defined.
Section 1. Guaranty; Limitation of Liability. (a) The undersigned
hereby absolutely, unconditionally and irrevocably guarantees the punctual
payment when due, whether at scheduled maturity or on any date of a required
prepayment or by acceleration, demand or otherwise, of all Obligations of each
other Loan Party now or hereafter existing under or in respect of the Loan
Documents (including, without limitation, any extensions, modifications,
substitutions, amendments or renewals of any or all of the foregoing
Obligations), whether direct or indirect, absolute or contingent, and whether
for principal, interest, premium, fees, indemnities, contract causes of action,
costs, expenses or otherwise (such Obligations being the "GUARANTEED
OBLIGATIONS"), and agrees to pay any and all reasonable expenses (including,
without limitation, reasonable fees and expenses of counsel, provided that the
undersigned shall not be required to reimburse the legal fees and expenses of
more than one law firm (and one local counsel in each applicable local
jurisdiction) for the Agents and the Lenders, collectively, except to the extent
the Administrative Agent reasonably believes that the use of single counsel
would result in a conflict of interest) incurred by the Administrative Agent or
any other Secured Party in enforcing any rights under this Guaranty Supplement,
the Guaranty or any other Loan Document. Without limiting the generality of the
foregoing, the undersigned's liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any other
Loan Party to any Secured Party under or in respect of the Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving such other Loan
Party.
(b) The undersigned, and by its acceptance of this Guaranty
Supplement, the Administrative Agent and each other Secured Party, hereby
confirms that it is the intention of all such
8
Persons that this Guaranty Supplement, the Guaranty and the Obligations of the
undersigned hereunder and thereunder not constitute a fraudulent transfer or
conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or
state law to the extent applicable to this Guaranty Supplement, the Guaranty and
the Obligations of the undersigned hereunder and thereunder. To effectuate the
foregoing intention, the Administrative Agent, the other Secured Parties and the
undersigned hereby irrevocably agree that the Obligations of the undersigned
under this Guaranty Supplement and the Guaranty at any time shall be limited to
the maximum amount as will result in the Obligations of the undersigned under
this Guaranty Supplement and the Guaranty not constituting a fraudulent transfer
or conveyance.
(c) The undersigned hereby unconditionally and irrevocably agrees that
in the event any payment shall be required to be made to any Secured Party under
this Guaranty Supplement, the Guaranty or any other guaranty of the Obligations,
the undersigned will contribute, to the maximum extent permitted by applicable
law, such amounts to each other Guarantor and each other guarantor of the
Obligations so as to maximize the aggregate amount paid to the Secured Parties
under or in respect of the Guaranteed Obligations.
Section 2. Obligations Under the Guaranty. The undersigned hereby
agrees, as of the date first above written, to be bound as a Guarantor by all of
the terms and conditions of the Guaranty to the same extent as each of the other
Guarantors thereunder. The undersigned further agrees, as of the date first
above written, that each reference in the Guaranty to an "Additional Guarantor"
or a "Guarantor" shall also mean and be a reference to the undersigned.
Section 3. Representations and Warranties. The undersigned hereby
makes each representation and warranty set forth in Section 4.01 of the Credit
Agreement to the same extent as each other Guarantor.
Section 4. Delivery by Telecopier. Delivery of an executed counterpart
of a signature page to this Guaranty Supplement by telecopier shall be effective
as delivery of an original executed counterpart of this Guaranty Supplement.
Section 5. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. (a)
This Guaranty Supplement shall be governed by, and construed in accordance with,
the laws of the State of New York.
(b) The undersigned hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of any New York
State court or any federal court of the United States of America sitting in New
York City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Guaranty Supplement, the Guaranty or any of
the other Loan Documents to which it is or is to be a party, or for recognition
or enforcement of any judgment, and the undersigned hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. The undersigned agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Guaranty Supplement or the Guaranty or any
other Loan Document shall affect any right that any party may otherwise have to
bring any action or proceeding relating to this Guaranty Supplement, the
Guaranty or any of the other Loan Documents to which it is or is to be a party
in the courts of any other jurisdiction.
(c) The undersigned irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Guaranty Supplement, the Guaranty or
9
any of the other Loan Documents to which it is or is to be a party in any New
York State or federal court. The undersigned hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such suit, action or proceeding in any such court.
(d) THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT
OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE
ADVANCES OR THE ACTIONS OF ANY SECURED PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
Very truly yours,
[NAME OF ADDITIONAL GUARANTOR]
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
10
EXHIBIT F
FORM OF SOLVENCY CERTIFICATE
September 26, 2006
The undersigned chief financial officer of ▇▇▇▇▇ RESPIRATORY
THERAPEUTICS, INC. (the "BORROWER"), is familiar with the properties,
businesses, assets and liabilities of the Loan Parties and is duly authorized to
execute this certificate on behalf of the Borrower
Reference is made to that Senior Revolving Credit Agreement, dated as
of September 26, 2006 (as amended, restated or otherwise modified, the "CREDIT
AGREEMENT"; all capitalized terms used herein and not defined shall have the
meanings provided in the Credit Agreement), by and among the Borrower, the
Subsidiary Guarantors party thereto, Royal Bank of Canada, as Administrative
Agent for the Lenders (the "ADMINISTRATIVE AGENT"), and the Lenders from time to
time party thereto.
1. The undersigned certifies that he has made such investigation and
inquiries as to the financial condition of the Loan Parties as the undersigned
deems reasonably necessary and prudent for the purpose of providing this
certificate (this "CERTIFICATE"). The undersigned acknowledges that the
Administrative Agent and the Lenders are relying on the truth and accuracy of
this Certificate in connection with the making of Advances under the Credit
Agreement.
2. The undersigned certifies that the financial information,
projections and assumptions which underlie and form the basis for the
representations made in this Certificate, to his knowledge after reasonable
inquiry, (a) were reasonable when made and were made in good faith and (b)
continue to be reasonable as of the Effective Date.
BASED ON THE FOREGOING, the undersigned certifies that, both before
and after giving effect to the Product Acquisition as of the Effective Date:
A. Each of the Loan Parties, on a consolidated basis, are able to pay
their debts and other liabilities (including contingent obligations) as
they mature in the ordinary course of business.
B. The Loan Parties, taken as a whole, do not intend to, or believe
that they will, incur debts or liabilities beyond their ability to pay as
such debts and liabilities mature in the ordinary course of business.
C. The Loan Parties, taken as a whole, are not engaged in any business
or transaction, and are not about to engage in any business or transaction,
for which the assets of the Loan Parties, taken as a whole, would
constitute unreasonably small capital.
D. The present fair saleable value of the consolidated assets
(tangible and intangible) of the Loan Parties is not less than the amount
that will be required to pay the probable liability on the debts of the
Loan Parties, taken as a whole, as they become absolute and as they mature.
For purposes of this Certificate, "contingent liabilities" have been
computed in the amount that can be reasonably expected to become an actual or
matured liability as determined in good faith by the Borrower.
11
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of the day and year first above written on behalf of the Parent, and not in his
personal capacity.
▇▇▇▇▇ RESPIRATORY THERAPEUTICS, INC.
By
-------------------------------------
Name:
----------------------------------
Title: Chief Financial Officer
12
EXHIBIT H
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: ________,
To: Royal Bank of Canada, as Administrative Agent
Attn: Manager Agency
Ladies and Gentlemen:
Reference is made to that certain Senior Revolving Credit Agreement,
dated as of September 2[6], 2006 (as amended, restated, extended, supplemented
or otherwise modified in writing from time to time, the "CREDIT AGREEMENT;" the
terms defined therein being used herein as therein defined), among ▇▇▇▇▇
Respiratory Therapeutics, Inc., a Delaware corporation (the "BORROWER"), the
Lenders from time to time party thereto, and Royal Bank of Canada., as
Administrative Agent and Collateral Agent.
The undersigned Financial Officer hereby certifies as of the date
hereof that he/she is the ______ of the Borrower, and that, as such, he/she is
authorized to execute and deliver this Certificate to the Administrative Agent
on the behalf of the Borrower, and that:
[Use following paragraph 1 for fiscal year-end financial statements]
1. This Certificate is delivered in conjunction with the annual
audited Consolidated financial statements for the Borrower and its Subsidiaries
for the Fiscal Year of the Borrower ended as of ________________, 20___,
together with the annual audit report and opinion of an independent certified
public accountant for such Fiscal Year that are required to be delivered by
Section 5.03(b) of the Credit Agreement. Each such document referred to herein
is currently available on the website of the Securities and Exchange Commission
at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇.
[Use following paragraph 1 for fiscal quarter-end financial statements]
1. This Certificate is delivered in conjunction with the Consolidated
balance sheet, Consolidated statement of income and a Consolidated statement of
cash flows of the Borrower and its Subsidiaries required by Section 5.03(c) of
the Credit Agreement for the fiscal quarter of the Borrower ended as of the
above date. Each such document referred to herein is currently available on the
website of the Securities and Exchange Commission at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇. Such
financial statements fairly present, in all material respects, the financial
condition, results of operations and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP as at such date and for such period,
subject only to normal year-end audit adjustments and the absence of footnotes.
2. Based on my knowledge, the financial statements do not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by the
financial statements.
3. The undersigned has reviewed and is familiar with the terms of the
Credit Agreement and has made, or has caused to be made under his/her
supervision, a detailed review of the transactions and condition (financial or
otherwise) of the Borrower and its Subsidiaries during the accounting period
covered by the financial statements referred to in this Certificate.
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4. A review of the activities of the Borrower and its Subsidiaries
during such fiscal period has been made under the supervision of the undersigned
with a view to determining whether during such fiscal period the Borrower and
its Subsidiaries performed and observed all their respective Obligations under
the Loan Documents, and
[select one:]
[each of the Loan Parties performed and observed each covenant and
condition of the Loan Documents applicable to it, and no Event of Default or
Default has occurred and is continuing.]
--or--
[the following covenants or conditions have not been performed or
observed and the following is a list of each such Default, its nature and status
and steps implemented to correct such Default or Event of Default:]
5. The representations and warranties of the Borrower contained in
Article V of the Agreement, or which are contained in any document furnished at
any time under or in connection with the Loan Documents, are true and correct in
all material respects on and as of the date hereof, except to the extent that
such representations and warranties specifically refer to an earlier date, in
which case they are true and correct as of such earlier date, and except that
for purposes of this Compliance Certificate, the representations and warranties
contained in subsection (g) and (h) of Section 4.01 of the Credit Agreement
shall be deemed to refer to the most recent statements furnished pursuant to
clause (b) and (c), respectively, of Section 5.03 of the Credit Agreement,
including the statements in connection with which this Compliance Certificate is
delivered.
6. The financial covenant analyses and information set forth on
Schedule 1 attached hereto, demonstrating compliance with the covenants set
forth in Sections 5.02(o), 5.04(a), (b) and (c) of the Credit Agreement, are
true and accurate on and as of the date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of _________________________________, ______________________.
▇▇▇▇▇ RESPIRATORY THERAPEUTICS, INC.
By
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Name:
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Title:
---------------------------------
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Compliance Certificate
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SCHEDULE 1
to the Compliance Certificate
($ in 000's)
A. EBITDA OF THE BORROWER AND ITS SUBSIDIARIES FOR THE FISCAL
[QUARTER/YEAR] ENDING ON [______, 20__] ("SUBJECT PERIOD"):
1. Net income (or net loss) for Subject Period: $________
2. Interest expense for Subject Period: $________
3. Income tax expense for Subject Period: $________
4. Depreciation expense for Subject Period: $________
5. Amortization expense for Subject Period (including $________
amortization of intangibles, debt discount and
organization costs):
6. Other non-cash losses, charges or items for Subject Period $________
(excluding any such non-cash item to the extent that it
represents an accrual for potential ordinary course cash
items in any future period or amortization of a prepaid
cash item that was paid in a prior period):
7. Extraordinary or non-recurring losses or charges for $________
Subject Period:
8. Losses from the sale or other disposition of assets made $________
other than in the ordinary course of business for Subject
Period:
9. Losses from discontinued operations for Subject Period: $________
10. Fees and expenses associated with the early extinguishment $________
of Debt for Subject Period:
11. Fees, charges and other expenses incurred in connection $________
with the issuance of Debt (including under the Credit
Agreement) or Equity Interests during Subject Period:
12. Fees, charges and other expenses incurred in connection $________
with permitted Investments permitted under Section 5.02(f)
whether or not such transaction is consummated:
13. To the extent added in calculating net income (or net $________
loss), other non-recurring non-cash items (excluding any
non-cash item to the extent it represents the reversal of
an accrual or reserve for potential cash item in any prior
period) for Subject Period:
14. Extraordinary or non-recurring gains during Subject $________
Period:
15. Permitted Pro Forma Adjustments, as applicable $________
(itemize each adjustment as permitted by Regulation S-X or
as otherwise acceptable to the Administrative Agent):
16. EBITDA of Borrower and its Subsidiaries (Lines A.1 + 2 + 3 $________
+ 4 + 5 + 6 + 7 + 8 + 9 + 10 + 11 + 12 (in each case, to
the extent deducted in calculating net income (or net
loss)) - (13+14) + 15)):
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B. LEVERAGE RATIO
1. EBITDA for Subject Period (Line A.16 above): $________
2. Total Debt for Borrowed Money (determined for Borrower and $________
its Subsidiaries on a Consolidated Basis) as of last day
of Subject Period:
3. Total Leverage Ratio (Line B.2 / B.1) ___ : 1.0
Maximum permitted: 3.5:1.0
C. SENIOR SECURED LEVERAGE RATIO:
1. EBITDA for Subject Period (Line A.16 above): $________
2. Senior secured Debt for Borrowed Money (determined for $________
Borrower and its Subsidiaries on a Consolidated Basis) as
of last of Subject Period:
3. Senior Secured Leverage Ratio (Line C.2 / C.1): ___ : 1.0
Minimum Required: 2.0:1.0
D. FIXED CHARGE COVERAGE RATIO:
1. EBITDA for Subject Period (Line A.16 above): $________
2. Interest Expense for Subject Period (excluding fees and $________
expenses associated with the early extinguishment of
Debt):
3. Scheduled principal payments on all Debt for Borrowed $________
Money paid in cash, including without limitation under the
Credit Agreement (but excluding for purposes of Fiscal
Year ending December 31, 2011, the obligation to repay all
Advances on the Termination Date) during Subject Period:
4. Taxes on income paid in cash $________
5. Restricted Payments made in cash by Borrower during $________
Subject Period:
6. Non-financed Capital Expenditures for Subject Period, $________
determined for the Borrower and its Subsidiaries on a
Consolidated basis:
7. Fixed Charge Coverage Ratio (Line D.1 / (D.2 + 3 + 4 + 5 + ___ : 1.0
6)):
Minimum required: 2.0:1.00
E. CAPITAL EXPENDITURES
1.. Capital Expenditures made during current Fiscal Year to $________
date:
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2. Capital Expenditure basket for current Fiscal Year
[$15,000,000](1)/[$10,000,000](2):
3. Capital Expenditures that could have been made during the $________
immediately prior fiscal year but which were not made:
4. Maximum permitted Capital Expenditures $________
(Line E.2 plus the lesser of (i) [$7,500,000](3)
[$5,000,000](4) and (ii) Line E.3)
5. Excess (deficiency) for covenant compliance (Line E.4 - $________
E.1)
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(1) Applicable only to Fiscal Year 2007.
(2) Applicable to Fiscal Year 2008 and beyond.
(3) Applicable only to Fiscal Year 2008.
(4) Applicable to Fiscal Year 2009 and beyond.
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