Exhibit 10.6
CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH
"***". A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION
REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 24B-2 OF THE EXCHANGE ACT OF 1934.
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT, dated as of June 27, 2008 (as amended,
restated, supplemented or otherwise modified from time to time, this
"Agreement") is among GENERAL ELECTRIC CAPITAL CORPORATION ("GECC"), in its
capacity as agent for Lenders (as defined below) (together with its successors
and assigns in such capacity, "Agent"), OXFORD FINANCE CORPORATION ("Oxford"),
the other financial institutions who are or hereafter become parties to this
Agreement as lenders (together with GECC and Oxford, collectively the "Lenders",
and each individually, a "Lender"), DEPOMED, INC., a California corporation
("Borrower"), and the other entities or persons, if any, who are or hereafter
become parties to this Agreement as guarantors (each a "Guarantor" and
collectively, the "Guarantors", and together with Borrower, each a "Loan Party"
and collectively, "Loan Parties").
RECITALS
Borrower wishes to borrow funds from time to time from Lenders, and Lenders
desire to make loans, advances and other extensions of credit, severally and not
jointly, to Borrower from time to time pursuant to the terms and conditions of
this Agreement.
AGREEMENT
Loan Parties, Agent and Lenders agree as follows:
1.
DEFINITIONS.
As used in this Agreement, all capitalized terms shall have the definitions as
provided herein.
Any accounting term used but not defined herein shall be
construed in accordance with generally accepted accounting principles in the
United States of America, as in effect from time to time ("GAAP") and all
calculations shall be made in accordance with GAAP.
The term "financial
statements" shall include the accompanying notes and schedules.
All other terms
used but not defined herein shall have the meaning given to such terms in the
Uniform Commercial Code as adopted in the State of New York, as amended and
supplemented from time to time (the "UCC").
2.
LOANS AND TERMS OF PAYMENT.
2.1.
PROMISE TO PAY.
BORROWER PROMISES TO PAY AGENT, FOR THE RATABLE
ACCOUNTS OF LENDERS, WHEN DUE PURSUANT TO THE TERMS HEREOF, THE AGGREGATE UNPAID
PRINCIPAL AMOUNT OF ALL LOANS, ADVANCES AND OTHER EXTENSIONS OF CREDIT MADE
SEVERALLY BY THE LENDERS TO BORROWER UNDER THIS AGREEMENT, TOGETHER WITH
INTEREST ON THE UNPAID PRINCIPAL AMOUNT OF SUCH LOANS, ADVANCES AND OTHER
EXTENSIONS OF CREDIT AT THE INTEREST RATES SET FORTH HEREIN.
2.2.
TERM LOANS.
(A)
COMMITMENT.
SUBJECT TO THE TERMS AND CONDITIONS HEREOF, EACH
LENDER, SEVERALLY, BUT NOT JOINTLY, AGREES TO MAKE THE TERM LOAN A, TERM LOAN B
AND TERM LOAN C (EACH AS
1
Confidential Information, indicated by [***] has been omitted from this filing
and filed separately with the Securities Exchange Commission
DEFINED BELOW AND EACH SOMETIMES INDIVIDUALLY REFERRED TO AS A "TERM LOAN" AND
COLLECTIVELY REFERRED TO AS THE "TERM LOANS") TO BORROWER FROM TIME TO TIME ON
ANY