Exhibit 10.45
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT, dated as of July 7, 2000 (this
"Third Amendment"), is entered into by and among RESPIRONICS, INC., a
corporation organized and existing under the laws of the State of Delaware (the
"Borrower"), the financial institutions listed on the signature pages hereto,
and each other financial institution which from time to time becomes a party
hereto in accordance with Subsection 9.6a of the Original Credit Agreement, as
defined below (individually a "Lender" and collectively the "Lenders"), PNC
BANK, NATIONAL ASSOCIATION as the issuer of Letters of Credit (in such capacity,
the "Issuing Bank") PNC BANK, NATIONAL ASSOCIATION as the administrative agent
(in such capacities, the "Administrative Agent"), BANK OF AMERICA, N.A.
(formerly known as "Bank of America National Trust and Savings Association") as
the syndication agent (in such capacity, the "Syndication Agent") and FIRST
UNION NATIONAL BANK as the documentation agent (in such capacity, the
"Documentation Agent") (the Administrative Agent, the Syndication Agent and the
Documentation Agent are herein collectively referred as the "Agents") and amends
that certain Credit Agreement dated as of May 8, 1998, as previously amended by
the First Amendment to Credit Agreement dated as of August 19, 1998, and the
Second Amendment to Credit Agreement dated as of December 9, 1998 (the Credit
Agreement, as amended by the First Amendment and the Second Amendment, together
with the exhibits and schedules thereto and all amendments, supplements,
extensions, renewals, modifications or replacements thereto or thereof, is
hereinafter referred to as the "Original Credit Agreement") entered into by and
among the Borrower, the Lenders, the Issuing Bank, the Administrative Agent, PNC
Bank, National Association as the syndication agent and Bank of America National
Trust and Savings Association as the documentation agent.
WITNESSETH:
WHEREAS, the BOrrower has requested that the Lenders agree to certain
modifications to the Original Credit Agreement.
NOW THEREFORE, in consideration of the foregoing recitals (each of which is
incorporated herein and made a material part hereof), the mutual covenants and
agreements contained herein and other valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and with the intent to be legally
bound hereby, the parties hereto agree as follows:
ARTICLE 1
AMENDMENTS TO ORIGINAL CREDIT AGREEMENT
---------------------------------------
Section 1.01. Amendments to Section 1.1 of the Original Credit Agreement.
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The following defined terms and the definitions therefor are hereby added to
Section 1.1 of the Original Credit Agreement and are inserted in correct
alphabetical order:
Third Amendment. The Third Amendment to Credit Agreement dated as of
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July 7, 2000.
Third Amendment Effective Date. The date on which the
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Administrative Agent shall have determined that each of the conditions
set forth in Article III of the Third Amendment have either been
satisfied by the Borrower or waived by the Lenders.
Section 1.02. Amendment to Section 5.1 of the Original Credit
-----------------------------------------------
Agreement. Section 5.1 of the Original Credit Agreement is hereby amended in its
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entirety to read as follows:
Indebtedness. The Borrower shall not and shall not permit its
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Subsidiaries to create, incur, assume or permit to exist or remain
outstanding any Indebtedness, except for:
(i) The Indebtedness owed by the Borrower to the Lenders
or the issuing Bank hereunder;
(ii) Consolidated Indebtedness of the Borrower and its
Subsidiaries existing on the Closing Date (exclusive of obligations
under Recourse Repurchase Agreements) to remain outstanding and unpaid
after the Closing Date and listed on Schedule 5.1 and any extensions,
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renewals or refinancings thereof, in outstanding principal amounts not
greater than those shown on Schedule 5.1;
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(iii) Consolidated Indebtedness represented by obligations,
whether contingent or actual, under Recourse Repurchase Agreements not
to exceed $40,000,000 at any one time outstanding;
(iv) Guarantees of the Borrower, guaranteeing the
Indebtedness of its Subsidiaries permitted pursuant to this Section
5.1; and
(v) Additional Consolidated Indebtedness, including
without limitation purchase money indebtedness and Capitalized Lease
Obligations, of the Borrower and its Subsidiaries in an amount not to
exceed $12,500,000 at any one time outstanding.
Section 1.03. No Other Amendments. The amendments to the Original
-------------------
Credit Agreement set forth in Sections 1.01 and 1.02 above do not either
implicitly or explicitly waive, alter or amend, except as expressly provided in
this Third Amendment, the provisions of the Original Credit Agreement. The
amendments set forth in Sections 1.01 and 1.02 hereof do not waive, now or in
the future, compliance with any other covenant, term or condition to be
performed or complied with nor do they impair any rights or remedies of the
Lenders and the Agents under the Original Credit Agreement with respect to any
such violation.
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ARTICLE II
BORROWER'S SUPPLEMENTAL REPRESENTATIONS
---------------------------------------
Section 2.01. Incorporation by Reference. As an inducement to the
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Lenders and the Agents to enter into this Third Amendment, except as previously
disclosed in writing by the Borrower to the Lenders and the Agents, the Borrower
hereby repeats herein for the benefit of the Lenders and the Agents the
representations and warranties made by the Borrower in Article 3 of the Original
Credit Agreement, except that for purposes hereof such representations and
warranties shall be deemed to extend to and cover this Third Amendment.
Section 2.02. Supplemental Representations. As a further inducement to
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the Lenders and the Agents to enter into this Third Amendment, the Borrower
hereby represents and warrants as follows:
(A) no petition by or against the Borrower or any Subsidiary
has, at any time since the date of the Original Credit Agreement, been filed
under the United States Bankruptcy Code or under any similar act;
(B) except those matters which have previously been disclosed to
the Lenders in writing, no Material Adverse Change in the properties, business,
operations, financial condition or prospects of the Borrower or any Subsidiary
has occurred; and
(C) the Borrower and each Restricted Subsidiary has in all
material respects performed all agreements, covenants and conditions required
to be performed on or prior to the date hereof under the Original Credit
Agreement and the other Loan Documents, except to the extent waived by the
Lenders on or before the Third Amendment Effective Date.
ARTICLE III
CONDITIONS PRECEDENT
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Section 3.01. Conditions Precedent. Each of the following shall be a
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condition precedent to the effectiveness of this Third Amendment:
The Lenders and the Agents shall have received, on or before the Third
Amendment Effective Date, the following items, each, unless otherwise indicated,
dated on or before the Third Amendment Effective Date and in form and substance
satisfactory to the Lenders, the Agents and the Administrative Agent's special
counsel, Xxxxxx Xxxxxxxxx, P.C..
(A) Duly executed counterpart originals of this Third Amendment,
executed by the Borrower, the Agents, and all of the Lenders;
(B) A certification from the Borrower that its certificate of
incorporation and its by-laws which were delivered to the Administrative Agent
on May 8, 1998 continue to remain complete and correct and in full force and
effect and have not been amended, supplemented or otherwise modified on or after
such date (except as set forth in such certificate), which certification states
the names of the Persons authorized to sign this Third Amendment and all other
documents, instruments and certificates delivered hereunder, together with the
true signatures of such Persons;
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(C) Consents from each Guarantor existing as of the Third Amendment
Effective Date to the execution by the Borrower of the Third Amendment; and
(D) Such other instruments, documents and opinions of counsel as the
Lenders and the Agents shall reasonably require, all of which shall be
satisfactory in form and substance to the Lenders and Agents and the
Administrative Agent's special counsel.
ARTICLE IV
GENERAL PROVISIONS
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Section 4.01. Ratification of Terms. Except as expressly amended by this
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Third Amendment, the Original Credit Agreement and each and every
representation, warranty, covenant, term and condition contained therein is
specifically ratified and confirmed. The Lenders are not obligated to make
further amendments, supplements, extensions or renewals thereto or thereof.
Section 4.02. References. All notices, communications, agreements,
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certificates, documents or other instruments executed and delivered after the
execution and delivery of this Third Amendment in connection with the Original
Credit Agreement, any other Loan Document or the transactions contemplated
thereby may refer to the Original Credit Agreement without making specific
reference to this Third Amendment, but nevertheless all such references shall
include this Third Amendment unless the context requires otherwise. From and
after the Third Amendment Effective Date, all references in the Original Credit
Agreement and each of the other Loan Documents to the "Agreement" shall be
deemed to be references to the Original Credit Agreement, as amended hereby.
Section 4.03. Counterparts. This Third Amendment may be executed in
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different counterparts, each of which when executed by the Borrower and the
Lenders shall be regarded as an original, and all such counterparts shall
constitute one Third Amendment.
Section 4.04. Capitalized Terms. Except for proper nouns and as otherwise
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defined herein, capitalized terms used herein as defined terms shall have the
meanings ascribed to them in the Original Credit Agreement, as amended hereby.
Section 4.05. Taxes. The Borrower shall pay any and all stamp and other
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taxes and fees payable or determined to be payable in connection with the
execution, delivery, filing and recording of this Third Amendment and such other
documents and instruments as are delivered in connection herewith and agrees to
save the Lenders harmless from and against any and all liabilities with respect
to or resulting from any delay in paying or omission to pay such taxes and fees.
Section 4.06. Costs and Expenses. The Borrower will pay all reasonable
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costs and expenses of the Lenders and the Agents (including, without limitation,
the reasonable fees and the disbursements of special counsel, Xxxxxx Xxxxxxxxx,
P.C.) in connection with the preparation, execution and delivery of this Third
Amendment and the other documents, instruments and certificates delivered in
connection herewith.
SECTION 4.07. GOVERNING LAW. THIS THIRD AMENDMENT AND THE RIGHTS AND
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OBLIGATIONS HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT REGARD TO THE PROVISIONS
THEREOF REGARDING CONFLICTS OF LAW.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Third Amendment to Credit Agreement to be executed by
their respective duly authorized officers as of the date first written above.
RESPIRONICS, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxx (SEAL)
------------------------------------
Name: Xxxxx X. Xxxxx
Title: President and CEO
PNC BANK, NATIONAL ASSOCIATION, as a
Lender and in its capacities as Administrative
Agent and Issuing Bank
By: _____________________________________(SEAL)
Name:
Title:
BANK OF AMERICA, N.A. (formerly known as
"Bank of America National Trust and Savings
Association"), as a Lender and in its capacity
as Syndication Agent
By: _____________________________________(SEAL)
Name:
Title:
FIRST UNION NATIONAL BANK, as a Lender
and in its capacity as Documentation Agent
By: _____________________________________(SEAL)
Name:
Title:
[SIGNATURES CONTINUED ON THE NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Third Amendment to Credit Agreement to be executed by
their respective duly authorized officers as of the date first written above.
RESPIRONICS, INC.,
a Delaware corporation
By: _____________________________________(SEAL)
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION, as a
Lender and in its capacities as
Administrative Agent and Issuing Bank
By: /s/ Xxxxxx X. Xxxxx Xxxxx (SEAL)
-------------------------------------
Name: Xxxxxx X. Xxxxx Xxxxx
Title: Vice President
BANK OF AMERICA, N.A. (formerly known as
"Bank of America National Trust and Savings
Association"), as a Lender and in its capacity
as Syndication Agent
By: _____________________________________(SEAL)
Name:
Title:
FIRST UNION NATIONAL BANK, as a Lender
and in its capacity as Documentation Agent
By: _____________________________________(SEAL)
Name:
Title:
[SIGNATURES CONTINUED ON THE NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Third Amendment to Credit Agreement to be executed by
their respective duly authorized officers as of the date first written above.
RESPIRONICS, INC.,
a Delaware corporation
By: _____________________________________(SEAL)
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION, as a Lender and
in its capacities as Administrative Agent and
Issuing Bank
By: _____________________________________(SEAL)
Name:
Title:
BANK OF AMERICA, N.A. (formerly known as
"Bank of America National Trust and Savings
Association"), as a Lender and in its capacity
as Syndication Agent
By: /s/ Xxxxxxx X. Xxxxxx (SEAL)
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
FIRST UNION NATIONAL BANK, as a Lender
and in its capacity as Documentation Agent
By: _____________________________________(SEAL)
Name:
Title:
[SIGNATURES CONTINUED ON THE NEXT PAGE]
5
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Third Amendment to Credit Agreement to be executed by
their respective duly authorized officers as of the date first written above.
RESPIRONICS, INC.,
a Delaware corporation
By: _____________________________________(SEAL)
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION, as a
Lender and its capacities as Administrative
Agent and Issuing Bank
By: _____________________________________(SEAL)
Name:
Title:
BANK OF AMERICA, N.A. (formerly known as
"Bank of America National Trust and Savings
Association"), as a lender and in its capacity
as Syndication Agent
By: _____________________________________(SEAL)
Name:
Title:
FIRST UNION NATIONAL BANK, as Lender
and in its capacity as Documentation Agent
By: /s/ Xxxxx X. Law (SEAL)
-------------------------------------
Name: Xxxxx X. Law
Title: Vice President
[SIGNATURES CONTINUED ON THE NEXT PAGE]
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[CONTINUATION OF SIGNATURES RE: THIRD AMENDMENT TO CREDIT AGREEMENT]
FLEET NATIONAL BANK
By: /s/ Xxxxxx X XxXxxxxx (SEAL)
--------------------------
Name: XXXXXX X. XxXXXXXX
Title: V.P.
NORWEST BANK COLORADO, NATIONAL
ASSOCIATION
By: __________________________(SEAL)
Name:
Title:
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By: __________________________(SEAL)
Name:
Title:
[GUARANTOR ACCEPTANCE ON THE NEXT PAGE]
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[CONTINUATION OF SIGNATURES RE: THIRD AMENDMENT TO CREDIT AGREEMENT]
FLEET NATIONAL BANK
By: __________________________(SEAL)
Name:
Title:
NORWEST BANK COLORADO, NATIONAL
ASSOCIATION
By: /s/ Xxxxx X. Xxxxx (SEAL)
--------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By: __________________________(SEAL)
Name:
Title:
[GUARANTOR ACCEPTANCE ON THE NEXT PAGE]
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GUARANTOR ACCEPTANCE
The terms of the foregoing Third Amendment to Credit Agreement are hereby
acknowledged, accepted and consented and agreed to by each of the undersigned as
guarantors under those certain Subsidiary Guaranty Agreements, each dated as of
May 8, 1998 and made by each of the undersigned guarantors in favor of PNC Bank,
National Association. All of the terms of each such Subsidiary Guaranty
Agreement shall maintain and persist and all of the rights and liabilities of
the undersigned guarantors and PNC Bank, National Association under each such
Guaranty Agreement shall continue unimpaired notwithstanding any such amendment.
A copy of the foregoing Third Amendment and this Guarantor Acceptance may be
attached to each of the Subsidiary Guaranty Agreements and deemed an amendment
thereto and a confirmation and ratification thereof. This Guarantor Acceptance
shall be deemed delivered by each of the undersigned guarantors as of the date
of their respective signatures below, but effective as of July 7, 2000.
Agreed to and Accepted this RESPIRONICS COLORADO, INC.:
7th day of July, 2000
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: President and CEO
Agreed to and Accepted this RESPIRONICS GEORGIA, INC.:
7th day of July, 2000
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: President and CEO
Agreed to and Accepted this RIC INVESTMENTS, INC.:
7th day of July, 2000
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
Title: President and Treasurer
Agreed to and Accepted this RESPIRONICS DEUTSCHLAND GmbH & Co. by
____day of ____, 2000 Respironics Verwaltungsgesellschaft
mbH, its General Partner
By: ___________________________
Name:
Title:
Agreed to and Accepted this RESPIRONICS (HK) LTD.:
___ day of ____, 2000
By: ___________________________
Name:
Title:
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GUARANTOR ACCEPTANCE
The terms of the foregoing Third Amendment to Credit Agreement are hereby
acknowledged, accepted and consented and agreed to by each of the undersigned as
guarantors under those certain Subsidiary Guaranty Agreements, each dated as of
May 8, 1998 and made by each of the undersigned guarantors in favor of PNC Bank,
National Association. All of the terms of each such Subsidiary Guaranty
Agreement shall maintain and persist and all of the rights and liabilities of
the undersigned guarantors and PNC Bank, National Association under each such
Guaranty Agreement shall continue unimpaired notwithstanding any such amendment.
A copy of the foregoing Third Amendment and this Guarantor Acceptance may be
attached to each of the Subsidiary Guaranty Agreements and deemed an amendment
thereto and a confirmation and ratification thereof. This Guarantor Acceptance
shall be deemed delivered by each of the undersigned guarantors as of the date
of their respective signatures below, but effective as of July 7, 2000.
Agreed to and Accepted this RESPIRONICS COLORADO, INC.:
____ day of ________________, 2000
By: __________________________________________
Name:
Title:
Agreed to and Accepted this RESPIRONICS GEORGIA, INC.:
____ day of ________________, 2000
By: __________________________________________
Name:
Title:
Agreed to and Accepted this RIC INVESTMENTS, INC.:
____ day of ________________, 2000
By: __________________________________________
Name:
Title:
Agreed to and Accepted this RESPIRONICS DEUTSCHLAND GmbH &
7th day of July, 2000 Co. by Respironics Verwaltungsgesellschaft
mbH, its General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President, International Division
Agreed to and Accepted this RESPIRONICS (HK) LTD.:
____ day of ________________, 2000
By: __________________________________________
Name:
Title:
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GUARANTOR ACCEPTANCE
The terms of the foregoing Third Amendment to Credit Agreement are hereby
acknowledged, accepted and consented and agreed to by each of the undersigned as
guarantors under those certain Subsidiary Guaranty Agreements, each dated as of
May 8, 1998 and made by each of the undersigned guarantors in favor of PNC Bank,
National Association. All of the terms of each such Subsidiary Guaranty
Agreement shall maintain and persist and all of the rights and liabilities of
the undersigned guarantors and PNC Bank, National Association under each such
Guaranty Agreement shall continue unimpaired notwithstanding any such amendment.
A copy of the foregoing Third Amendment and this Guarantor Acceptance may be
attached to each of the Subsidiary Guaranty Agreements and deemed an amendment
thereto and a confirmation and ratification thereof. This Guarantor Acceptance
shall be deemed delivered by each of the undersigned guarantors as of the date
of their respective signatures below, but effective as of July 7, 2000.
Agreed to and Accepted this RESPIRONICS COLORADO, INC.:
___ day of ____, 2000
By: _____________________________
Name:
Title:
Agreed to and Accepted this RESPIRONICS GEORGIA, INC.:
___ day of ____, 2000
By: _____________________________
Name:
Title:
Agreed to and Accepted this RIC INVESTMENTS, INC.:
___ day of ____, 2000
By: _____________________________
Name:
Title:
Agreed to and Accepted this RESPIRONICS DEUTSCHLAND GmbH & Co. by
____day of ____, 2000 Respironics Verwaltungsgesellschaft
mbH, its General Partner
By: _____________________________
Name:
Title:
Agreed to and Accepted this RESPIRONICS (HK) LTD.:
7th day of July, 2000
By: /s/ Xxxxx Xxxxxxx, Xx.
------------------------------
Name: Xxxxx Xxxxxxx, Xx.
Title: Managing Director
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RESPIRONICS, INC.
SECRETARY'S CERTIFICATE
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I, XXXXXX X. XXXXXX, hereby certify that I am the duly elected, qualified
and acting Secretary of Respironics, Inc., a Delaware corporation (the
"Corporation") and that:
1. The Certificate of Incorporation and all amendments thereto as delivered to
the Administrative Agent on May 8, 1998 continue to remain complete and
correct and in full force and effect and have not been amended,
supplemented or otherwise modified on or after such date;
2. The By-Laws and all amendments thereto as delivered to the Administrative
Agent on May 8, 1998 continue to remain complete and correct and in full
force and effect and have not been amended, supplemented or otherwise
modified on or after such date; and
3. The following named persons have been duly elected to and currently hold
the offices in the Corporation set forth opposite their names, and their
signatures set forth opposite their names are their genuine signatures:
Name Office Signature
---- ------ ---------
Xxxxx X. Xxxxx President and CEO /s/ Xxxxx X. Xxxxx
--------------------------
Xxxxxx X. Xxxxxxxx Vice President and Chief /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Financial Officer
Xxxxx X. Xxxx Vice President and Corporate /s/ Xxxxx X. Xxxx
--------------------------
Controller and Treasurer
Xxxxxx X. Xxxxxx Secretary /s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx Vice President and General /s/ Xxxxxx X. Xxxxxx
--------------------------
Counsel
IN WITNESS WHEREOF, I have hereunder set my hand and the seal of the
Corporation on this 7th day of July, 2000.
RESPIRONICS, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Secretary
