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EXHIBIT 10.2
FIRST AMENDMENT TO FORBEARANCE
AGREEMENT
THIS FIRST AMENDMENT TO FORBEARANCE AGREEMENT (the "Amendment") made
and entered into as of the 30th day of March, 2001, by and among HORIZON MEDICAL
PRODUCTS, INC., a Georgia corporation (the "Borrower"), HORIZON ACQUISITION
CORP., STRATO/INFUSAID, INC. and XXXXXX CORPORATION (collectively "Guarantors")
the Lender signatory to the Credit Agreement referred to below (the "Lender"),
and BANK OF AMERICA, N.A., successor to BANC OF AMERICA COMMERCIAL FINANCE
CORPORATION, formerly known as NationsCredit Commercial Corporation, as Agent
for the Lender (the "Agent")(Lender and Agent are at times hereinafter
collectively referred to as "Lender").
Statement of Facts
A. Borrower, Guarantors and Lenders are parties to the
Forbearance Agreement dated March 30, 2001 (the "Agreement"; capitalized terms
used in this Amendment and not otherwise defined herein have the meanings given
in the Agreement, as amended hereby).
B. The Borrower has requested that Lender agree to modify certain
terms of the Agreement and the Lender is willing to agree to such modifications
subject to the terms and conditions of this Amendment.
Statement of Terms
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendment to Agreement. Subject to the terms and conditions of this
Amendment, the Agreement is hereby amended as follows:
(a) Section 4(b) of the Agreement is hereby amended to read as
follows:
Note Modifications. Borrower agrees to pay any accrued and unpaid interest on
the Note on the first day of each month commencing on April 1, 2001 and
continuing on the same day of each successive month thereafter during the
Forbearance Period. Borrower agrees to make additional monthly principal
payments to Lender of $135,000.00 each month on the Note to be applied as
payment on the Acquisition Loans (as defined in the Credit Agreement), beginning
on May 15, 2001, and continuing on the 15th day of each month thereafter during
the Forbearance Period. In addition, on the 10th day of October, 2001, an
additional principal payment in the amount of the greater of $150,000 or the
gross proceeds payable under the Second Installment of Purchase Price under that
certain Asset Purchase Agreement by and between Horizon Medical Products, Inc.
and Vasutech Acquisition Corp. dated March 30, 2001 shall be due and payable.
Such
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payments will be applied in the Lender's sole discretion. In addition, on
the 90th day following the last day of each Fiscal Year, beginning with the
Fiscal Year ending December 31, 2000, there shall be due and payable and the
Borrower shall prepay on the Acquisition Loans an amount equal to 100% of the
Excess Cash Flow (as defined in the Credit Agreement), except as modified by the
Schedule (hereinafter defined) for such Fiscal Year. Interest will continue to
accrue and shall be computed on the outstanding principal balance of the Note
from time to time during the Forbearance Period at the Bank of America Prime
Rate plus two and one half percent (2.5%) per annum effective upon the Effective
Date. Upon a Termination Event (hereinafter defined), interest will accrue at
the interest rate then in effect plus six percent (6%). Except as modified
above, all other terms and conditions of the Note, Credit Agreement and Loan
Documents shall remain unchanged.
(b) Section 6 of the Agreement is hereby amended to read as
follows:
Amendment to Credit Agreement. Section 2.01(b) of the Credit Agreement is hereby
amended to read as follows:
(b)(i) Working Capital Loans shall be available for the working
capital needs of the Company and its Subsidiaries. The sum of Working Capital
Loans and Working Capital Letter of Credit Liabilities shall not at any time
exceed in aggregate principal amount outstanding the least of (said amount, the
"Working Capital Availability"):
(A) the Working Capital Sublimit of Ten Million Dollars
($10,000,000) less any Letter of Credit Liabilities
less any permanent reductions to the Working Capital
Sublimit as a result of sales of any Collateral
approved by Lender in its sole discretion. As to the
sale of certain Collateral pursuant to that certain
Asset Purchase Agreement by and between Horizon
Medical Products, Inc. and Vasutech Acquisition Corp.
dated March 30, 2001, Lender and Borrower shall agree
on or before April 15, 2001 as to the permanent
reduction to the Working Capital Sublimit which shall
be not less the Eight Hundred Thousand and No/100
Dollars ($800,000) and not greater than One Million
Two Hundred Thousand and No/100 Dollars ($1,200,000).
(B) an amount equal to the Borrowing Base; and
(C) the Revolving Credit Commitment then in effect, less
the aggregate principal amount of Acquisition Loans
and Acquisition Letter of Credit Liabilities then
outstanding.
(ii) Each Working Capital Loan shall be in an aggregate amount of
$100,000 or an integral multiple of $10,000 in excess thereof. No more than two
Working Capital Loans shall be made within any month.
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2. No Other Amendments. Except for the amendments expressly set forth
herein, respectively, the Agreement shall remain unchanged and in full force and
effect.
3. Conditions to Effectiveness. This Amendment shall become effective upon
the date hereof, subject to the satisfaction of the following conditions:
(a) the receipt by the Lender of this Amendment, duly
executed, completed and delivered; and
(b) the receipt by the Lender of the fees and expenses
due from the Borrower; and
(c) the receipt by the Lender of the $2,250,500.00.
4. Counterparts. This Amendment may be executed in any number of
counterparts, all of which shall be deemed to constitute but one original and
shall be binding upon all parties, their successors and permitted assigns and
facsimile signatures shall be deemed binding and of the same force and effect as
originals.
5. Entire Agreement. The Agreement as amended by this Amendment embodies
the entire agreement between the parties hereto relating to the subject matter
hereof and supersedes all prior agreements, representations and understandings,
if any, relating to the subject matter hereof.
EXECUTED under seal as of the Effective Date.
BORROWER:
Signed, sealed and delivered
in the presence of:
HORIZON MEDICAL PRODUCTS, INC.
/s/ Xxx X. Xxxxxxxxx III
------------------------------
Unofficial Witness
/s/ Lluviscela Xxxxxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
------------------------------ ---------------------------------
Notary Public Name: Xxxxxxx X. Xxxxxxxx, Xx.
---------------------------
Title: President
---------------------------
My commission expires: June 29, 2004
(CORPORATE SEAL)
[NOTARIAL SEAL]
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GUARANTORS:
Signed, sealed and delivered
in the presence of:
/s/ Xxx X. Xxxxxxxxx III HORIZON ACQUISITION CORP.
--------------------------------
Unofficial Witness
/s/ Lluviscela Xxxxxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
-------------------------------- -----------------------------
Notary Public Name: Xxxxxxx X. Xxxxxxxx, Xx.
-------------------------
Title: Exec. VP
------------------------
My commission expires: June 29, 2004
(CORPORATE SEAL)
[NOTARIAL SEAL]
Signed, sealed and delivered in STRATO/INFUSAID, INC.
the presence of:
/s/ Xxx X. Xxxxxxxxx III
-------------------------------- By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Unofficial Witness ------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
-------------------------
Title: Exec. VP
/s/ Lluviscela Xxxxxxxxxxxxx ------------------------
--------------------------------
Notary Public (CORPORATE SEAL)
My commission expires: June 29, 2004
[NOTARIAL SEAL]
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XXXXXX CORPORATION
Signed, sealed and delivered
in the presence of: By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
/s/ Xxx X. Xxxxxxxxx, III ----------------------------
---------------------------- Title: President
Unofficial Witness ---------------------------
/s/ Lluviscela Xxxxxxxxxxxxx (CORPORATE SEAL)
----------------------------
Notary Public
My commission expires: June 29, 2004
[NOTARIAL SEAL]
LENDER AND AGENT:
Signed, sealed and delivered BANK OF AMERICA, N.A., successor to
in the presence of: BANC OF AMERICA COMMERCIAL
FINANCE CORPORATION
---------------------------- By: /s/ Xxxxxx X. Xxxxxx
Unofficial Witness ---------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------
Title: Sr. Vice President
---------------------------
---------------------------- (BANK SEAL)
Notary Public
My commission expires:
[NOTARIAL SEAL]
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