Exhibit 10.17
INTERCOMPANY SUBORDINATION AGREEMENT
THIS INTERCOMPANY SUBORDINATION AGREEMENT (this "Agreement"), dated as of
October 7, 2003, is made among XXXXX FARGO FOOTHILL, INC., a California
corporation ("Agent"), and the Debtors (as defined below), with reference to the
following:
WHEREAS, Xxxxxx Respiratory Care Inc., a California corporation (the
"Borrower"), the lenders signatory thereto from time to time (individually and
collectively, being referred to as "Lenders"; together with Agent, individually
and collectively, the "Lender Group"), and Agent have entered into that certain
Loan and Security Agreement, dated as of even date herewith (as amended,
restated, modified, supplemented, refinanced, renewed, or extended from time to
time, the "Loan Agreement"), pursuant to which the Lender Group has agreed to
make certain financial accommodations to Borrower;
WHEREAS, each Debtor has made or may make certain loans or advances from
time to time to one or more other Debtors; and
WHEREAS, in order to induce the Lender Group to enter into the Loan
Agreement, each Debtor has agreed to the subordination of such indebtedness of
each other Debtor to such Debtor, upon the terms and subject to the conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
conditions, representations, and warranties set forth herein and for other good
and valuable consideration, the parties hereto agree as follows:
SECTION 1 Definitions; Interpretation.
(a) Terms Defined in Loan Agreement. All capitalized terms used in this
Agreement and not otherwise defined herein shall have the meanings assigned to
them in the Loan Agreement.
(b) Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"Agreement" has the meaning set forth in the preamble to this Agreement.
"Borrower" has the meaning set forth in the recitals to this Agreement.
"Debtors" means, collectively, Borrower, River Holding Corp., a Delaware
corporation, IH Holding LLC, a Delaware limited liability company, Industrias
Xxxxxx X.X. de C.V., a company organized under the laws of Mexico, Xxxxxx
Respiratory Care Tecate, S. de X.X. de C.V., a company organized under the laws
of Mexico, and HRC Holding Inc., a Delaware corporation.
"Insolvency Event" has the meaning set forth in Section 3.
"Lender Group" has the meaning set forth in the recitals to this Agreement.
"Lenders" has the meaning set forth in the recitals to this Agreement.
"Loan Agreement" has the meaning set forth in the recitals to this
Agreement.
"Senior Debt" means the Obligations and other indebtedness and liabilities
of the Debtors to Agent and the Lender Group under or in connection with the
Loan Agreement and the other Loan Documents, including all unpaid principal of
the Advances, all interest accrued thereon, all fees due under the Loan
Agreement and the other Loan Documents, and all other amounts payable by the
Debtors to Agent and the Lender Group thereunder or in connection therewith,
whether now existing or hereafter arising, and whether due or to become due,
absolute or contingent, liquidated or unliquidated, determined or undetermined,
and including without limitation interest, fees, and other such amounts, which
would accrue and become due but for the commencement of one or more of the
Insolvency Events, whether or not such interest, fees, and other amounts are
allowed or allowable in whole or in part in any of such Insolvency Events.
"Subordinated Debt" means, with respect to each Debtor, all indebtedness,
liabilities, and other monetary obligations of any other Debtor owing to such
Debtor in respect of any and all loans or advances made by such Debtor to such
other Debtor whether now existing or hereafter arising, and whether due or to
become due, absolute or contingent, liquidated or unliquidated, determined or
undetermined, including all fees and all other amounts payable by any other
Debtor to such Debtor under or in connection with any documents or instruments
related thereto.
"Subordinated Debt Payment" means any payment or distribution by or on
behalf of the Debtors, directly or indirectly, of assets of the Debtors of any
kind or character, whether in cash, property, or securities, including on
account of the purchase, redemption, or other acquisition of Subordinated Debt,
as a result of any collection, sale, or other disposition of collateral, or by
setoff, exchange, or in any other manner, for or on account of the Subordinated
Debt.
(c) Interpretation. Unless the context of this Agreement clearly requires
otherwise, references to the plural include the singular, references to the
singular include the plural, the term "including" is not limiting, and the term
"or" is not exclusive. The words "hereof," "herein," "hereby," "hereunder," and
similar terms in this Agreement refer to this Agreement as a whole and not to
any particular provision of this Agreement. Section, subsection, clause,
schedule, and exhibit references are to this Agreement unless otherwise
specified. References to agreements and other contractual instruments shall be
deemed to include all subsequent amendments, restatements and other
modifications thereto. References to statutes or regulations are to be construed
as including all statutory and regulatory provisions consolidating, amending, or
replacing the statute or regulation referred to. The captions and headings are
for convenience of reference only and shall not affect the construction of this
Agreement.
SECTION 2 Subordination To Payment Of Senior Debt. As to each Debtor, all
payments on account of the Subordinated Debt shall be subject, subordinate, and
junior, in right of payment and exercise of remedies, to the extent and in the
manner set forth herein, to the prior payment, in full, in cash or cash
equivalents of the Senior Debt.
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SECTION 3 Subordination Upon Any Distribution Of Assets Of The Debtors. As
to each Debtor, in the event of any payment or distribution of assets of any
other Debtor of any kind or character, whether in cash, property, or securities,
upon the dissolution, winding up, or total or partial liquidation or
reorganization, readjustment, arrangement, or similar proceeding relating to
such other Debtor or its property, whether voluntary or involuntary, or in
bankruptcy, insolvency, receivership, arrangement, or similar proceedings or
upon an assignment for the benefit of creditors, or upon any other marshaling or
composition of the assets and liabilities of such other Debtor, or otherwise,
(such events, collectively, the "Insolvency Events"): (i) all amounts owing on
account of the Senior Debt shall first be paid, in full, in cash, or payment
provided for in cash or in cash equivalents, before any Subordinated Debt
Payment is made; and (ii) to the extent permitted by applicable law, any
Subordinated Debt Payment to which such Debtor would be entitled except for the
provisions hereof, shall be paid or delivered by the trustee in bankruptcy,
receiver, assignee for the benefit of creditors, or other liquidating lender
making such payment or distribution directly to Agent for application to the
payment of the Senior Debt in accordance with clause (i), after giving effect to
any concurrent payment or distribution or provision therefor to Agent in respect
of such Senior Debt.
SECTION 4 Payments On Subordinated Debt.
(a) Permitted Payments. So long as no Event of Default has occurred and is
continuing, each Debtor may make, and each other Debtor shall be entitled to
accept and receive, (i) payments on account of the Subordinated Debt in the
ordinary course of business and (ii) payments allowed, if any, under the Loan
Agreement.
(b) No Payment Upon Senior Debt Defaults. Upon the occurrence of any Event
of Default, and until such Event of Default is cured or waived, no Debtor shall
make, and no other Debtor shall accept or receive, any Subordinated Debt
Payment.
SECTION 5 Subordination Of Remedies. As long as any Senior Debt shall
remain outstanding and unpaid, following the occurrence of any Event of Default
and until such Event of Default is cured or waived, no Debtor shall, without the
prior written consent of Agent:
(a) accelerate, make demand, or otherwise make due and payable prior to the
original due date thereof any Subordinated Debt or bring suit or institute any
other actions or proceedings to enforce its rights or interests in respect of
the obligations of any other Debtor owing to such Debtor;
(b) exercise any rights under or with respect to guaranties of the
Subordinated Debt, if any;
(c) exercise any rights to set-offs and counterclaims in respect of any
indebtedness, liabilities, or obligations of such Debtor to any other Debtor
against any of the Subordinated Debt; or
(d) commence, or cause to be commenced, or join with any creditor other
than Agent or any Lender in commencing, any bankruptcy, insolvency, or
receivership proceeding against the other Debtor.
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SECTION 6 Payment Over To Agent. In the event that, notwithstanding the
provisions of Sections 3, 4, or 5, any Subordinated Debt Payments shall be
received in contravention of such Sections 3, 4, or 5 by any Debtor before all
Senior Debt is paid, in full, in cash or cash equivalents, such Subordinated
Debt Payments shall be held in trust for the benefit of the Lender Group and
shall be paid over or delivered to Agent for application to the payment, in
full, in cash or cash equivalents of all Senior Debt remaining unpaid to the
extent necessary to give effect to such Sections 3, 4, or 5, after giving effect
to any concurrent payments or distributions to Agent in respect of the Senior
Debt.
SECTION 7 Authorization To Agent. If, while any Subordinated Debt is
outstanding, any Insolvency Event shall occur and be continuing with respect to
any Debtor or its property: (i) Agent hereby is irrevocably authorized and
empowered (in the name of each other Debtor or otherwise), but shall have no
obligation, to demand, xxx for, collect, and receive every payment or
distribution in respect of the Subordinated Debt and give acquittance therefor
and to file claims and proofs of claim and take such other action (including
voting the Subordinated Debt) as it may deem necessary or advisable for the
exercise or enforcement of any of the rights or interests of Agent; and (ii)
each other Debtor shall promptly take such action as Agent reasonably may
request (a) to collect the Subordinated Debt, to the extent permitted by law,
for the account of the Lender Group and to file appropriate claims or proofs of
claim in respect of the Subordinated Debt, (b) to execute and deliver to Agent
such powers of attorney, assignments, and other instruments as it may request to
enable it to enforce any and all claims with respect to the Subordinated Debt,
and (c) to collect and receive any and all Subordinated Debt Payments, to the
extent permitted by law.
SECTION 8 Certain Agreements Of Each Debtor.
(a) No Benefits. Each Debtor understands that there may be various
agreements among Agent, the Lenders, and any other Debtor evidencing and
governing the Senior Debt, and each Debtor acknowledges and agrees that such
agreements are not intended to confer any benefits on such Debtor unless such
Debtor is also a party thereto and that Agent and the Lenders shall have no
obligation to such Debtor or any other Person to exercise any rights, enforce
any remedies, or take any actions which may be available to them under such
agreements unless such Debtor is also a party thereto.
(b) No Interference. Each Debtor acknowledges that certain other Debtors
have granted to Agent for the benefit of the Lender Group security interests in
all of such other Debtor's assets, and agrees not to interfere with or in any
manner oppose a disposition of any Collateral by Agent in accordance with
applicable law.
(c) Reliance by Agent and Lenders. Each Debtor acknowledges and agrees that
Agent and the Lenders will have relied upon and will continue to rely upon the
subordination provisions provided for herein and the other provisions hereof in
entering into the Loan Documents and making or issuing the Advances, the Letters
of Credit, or other financial accommodations thereunder.
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(d) Waivers. Except as provided under the Loan Agreement, each Debtor
hereby waives any and all notice of the incurrence of the Senior Debt or any
part thereof and any right to require marshaling of assets.
(e) Obligations of Each Debtor Not Affected. Each Debtor hereby agrees that
at any time and from time to time, without notice to or the consent of such
Debtor, without incurring responsibility to such Debtor, and without impairing
or releasing the subordination provided for herein or otherwise impairing the
rights of Agent hereunder: (i) the time for any other Debtor's performance of or
compliance with any of its agreements contained in the Loan Documents may be
extended or such performance or compliance may be waived by Agent or the
Lenders; (ii) the agreements of any other Debtor with respect to the Loan
Documents may from time to time be modified by such other Debtor, Agent, and the
Lenders for the purpose of adding any requirements thereto or changing in any
manner the rights and obligations of such other Debtor, Agent, or the Lenders
thereunder; (iii) the manner, place, or terms for payment by any other Debtor of
Senior Debt or any portion thereof may be altered or the terms for payment
extended, or the Senior Debt of any other Debtor may be renewed in whole or in
part; (iv) the maturity of the Senior Debt of any other Debtor may be
accelerated in accordance with the terms of any present or future agreement by
any other Debtor, Agent, and the Lenders; (v) any Collateral may be sold,
exchanged, released, or substituted and any Lien in favor of Agent may be
terminated, subordinated, or fail to be perfected or become unperfected; (vi)
any Person liable in any manner for Senior Debt may be discharged, released, or
substituted; and (vii) all other rights against the other Debtors, any other
Person, or with respect to any Collateral may be exercised (or Agent may waive
or refrain from exercising such rights).
(f) Rights of Agent Not to Be Impaired. No right of Agent or the Lenders to
enforce the subordination provided for herein or to exercise its other rights
hereunder shall at any time in any way be prejudiced or impaired by any act or
failure to act by any Debtor, Agent, or the Lenders hereunder or under or in
connection with the other Loan Documents or by any noncompliance by the other
Debtors with the terms and provisions and covenants herein or in any other Loan
Document, regardless of any knowledge thereof Agent or the Lenders may have or
otherwise be charged with.
(g) Financial Condition of the Debtors. Except as provided under the Loan
Agreement or by applicable law, no Debtor shall have any right to require Agent
to obtain or disclose any information with respect to: (i) the financial
condition or character of any other Debtor or the ability of any other Debtor to
pay and perform Senior Debt; (ii) the Senior Debt; (iii) the Collateral or other
security for any or all of the Senior Debt; (iv) the existence or nonexistence
of any guarantees of, or any other subordination agreements with respect to, all
or any part of the Senior Debt; (v) any action or inaction on the part of Agent
or any other Person; or (vi) any other matter, fact, or occurrence whatsoever.
(h) Acquisition of Liens or Guaranties. No Debtor shall, without the prior
consent of Agent, acquire any right or interest in or to any Collateral not
owned by such Debtor or accept any guaranties for the Subordinated Debt.
SECTION 9 Subrogation.
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(a) Subrogation. Until the payment and performance in full of all Senior
Debt, each Debtor agrees to postpone, and shall not directly or indirectly
exercise, any rights that it may acquire by way of subrogation under this
Agreement, by any payment or distribution to Agent hereunder or otherwise. Upon
the payment and performance in full of all Senior Debt, each Debtor shall be
subrogated to the rights of Agent and Lenders to receive payments or
distributions applicable to the Senior Debt until the Subordinated Debt shall be
paid in full. For the purposes of the foregoing subrogation, no payments or
distributions to Agent of any cash, property, or securities to which any Debtor
would be entitled except for the provisions of Section 3, 4, or 5 shall, as
among such Debtor, its creditors (other than Agent and the Lenders), and the
other Debtors, be deemed to be a payment by the other Debtors to or on account
of the Senior Debt.
(b) Payments Over to the Debtors. If any payment or distribution to which
any Debtor would otherwise have been entitled but for the provisions of Section
3, 4, or 5 shall have been applied pursuant to the provisions of Section 3, 4,
or 5 to the payment of all amounts payable under the Senior Debt, such Debtor
shall be entitled to receive from Agent or the Lenders any payments or
distributions received by Agent or the Lenders in excess of the amount
sufficient to pay in full in cash all amounts payable under or in respect of the
Senior Debt. If any such excess payment is made to Agent or the Lenders, Agent
or the Lenders shall promptly remit such excess to such Debtor and until so
remitted shall hold such excess payment for the benefit of such Debtor.
SECTION 10 Continuing Agreement; Reinstatement.
(a) Continuing Agreement. This Agreement is a continuing agreement of
subordination and shall continue in effect and be binding upon each Debtor until
payment and performance in full in cash of the Senior Debt. The subordinations,
agreements, and priorities set forth herein shall remain in full force and
effect regardless of whether any party hereto in the future seeks to rescind,
amend, terminate, or reform, by litigation or otherwise, its respective
agreements with the other Debtor.
(b) Reinstatement. This Agreement shall continue to be effective or shall
be reinstated, as the case may be, if, for any reason, any payment of the Senior
Debt by or on behalf of any other Debtor shall be rescinded or must otherwise be
restored by Agent or the Lenders, whether as a result of an Insolvency Event or
otherwise.
SECTION 11 Transfer Of Subordinated Debt. No Debtor may assign or transfer
its rights and obligations in respect of the Subordinated Debt without the prior
written consent of Agent, and any such transferee or assignee, as a condition to
acquiring an interest in the Subordinated Debt shall agree to be bound hereby,
in form satisfactory to Agent.
SECTION 12 Obligations Of The Debtors Not Affected. The provisions of this
Agreement are intended solely for the purpose of defining the relative rights of
each Debtor against the other Debtors, on the one hand, and of Agent and the
Lenders against the Debtors, on the other hand. Nothing contained in this
Agreement shall (i) impair, as between each Debtor and the other Debtors, the
obligation of the other Debtors to pay their respective obligations with respect
to the Subordinated Debt as and when the same shall become due and payable, or
(ii)
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otherwise affect the relative rights of each Debtor against the other Debtors,
on the one hand, and of the creditors (other than Agent or the Lenders) of the
other Debtors against the other Debtors, on the other hand.
SECTION 13 Endorsement Of Debtor Documents; Further Assurances And
Additional Acts.
(a) Endorsement of Debtor Documents. At the request of Agent, all documents
and instruments evidencing any of the Subordinated Debt, if any, shall be
endorsed with a legend noting that such documents and instruments are subject to
this Agreement, and each Debtor shall promptly deliver to Agent evidence of the
same.
(b) Further Assurances and Additional Acts. Each Debtor shall execute,
acknowledge, deliver, file, notarize, and register at its own expense all such
further agreements, instruments, certificates, financing statements, documents,
and assurances, and perform such acts as Agent reasonably shall deem necessary
or appropriate to effectuate the purposes of this Agreement, and promptly
provide Agent with evidence of the foregoing reasonably satisfactory in form and
substance to Agent.
SECTION 14 Notices. All notices and other communications hereunder to Agent
shall be in writing and shall be mailed, sent or delivered in accordance with
the Loan Agreement and all notices and other communications hereunder to a
Debtor shall be in writing and shall be mailed, sent or delivered in care of
Borrower in accordance with the Loan Agreement.
SECTION 15 No Waiver; Cumulative Remedies. No failure on the part of Agent
or the Lenders to exercise, and no delay in exercising, any right, remedy,
power, or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, remedy, power, or privilege
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power, or privilege. The rights and remedies under this Agreement
are cumulative and not exclusive of any rights, remedies, powers, and privileges
that may otherwise be available to Agent and the Lenders.
SECTION 16 Costs And Expenses. Each of the Debtors, jointly and severally,
agrees to pay to Agent on demand the (a) reasonable out-of-pocket costs and
expenses of Agent, and the reasonable fees and disbursements of counsel to
Agent, in connection with the negotiation, preparation, execution, delivery, and
administration of this Agreement, and any amendments, modifications, or waivers
of the terms thereof; and (b) all reasonable out-of-pocket costs and expenses of
Agent, and the reasonable fees and disbursements of counsel, in connection with
the enforcement or attempted enforcement of, and preservation of rights or
interests under, this Agreement, including any losses, reasonable out-of-pocket
costs and expenses sustained by Agent as a result of any failure by any Debtor
to perform or observe its obligations contained in this Agreement.
SECTION 17 Survival. All covenants, agreements, representations and
warranties made in this Agreement shall, except to the extent otherwise provided
herein, survive the execution and delivery of this Agreement, and shall continue
in full force and effect so long
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as any Senior Debt remains unpaid. Without limiting the generality of the
foregoing, the obligations of each Debtor under Section 16 shall survive the
satisfaction of the Senior Debt.
SECTION 18 Benefits Of Agreement. This Agreement is entered into for the
sole protection and benefit of the parties hereto and their successors and
assigns, and no other person shall be a direct or indirect beneficiary of, or
shall have any direct or indirect cause of action or claim in connection with,
this Agreement.
SECTION 19 Binding Effect. This Agreement shall be binding upon, inure to
the benefit of and be enforceable by each Debtor, Agent, and the Lenders and
their respective successors and permitted assigns.
SECTION 20 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the law of the State of California.
SECTION 21 Submission To Jurisdiction; Waiver of Jury Trial. Each Debtor
hereby (i) submits to the exclusive jurisdiction of the courts of the County of
Los Angeles, State of California and the federal courts of the United States
sitting in the County of Los Angeles, State of California, for the purpose of
any action or proceeding arising out of or relating to this Agreement, (ii)
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such courts, or at the sole option of Agent, in any other
court which has subject matter jurisdiction over the matter in controversy,
(iii) irrevocably waives (to the extent permitted by applicable law) any
objection which it now or hereafter may have to the laying of venue of any such
action or proceeding brought in any of the foregoing courts, and any objection
on the ground that any such action or proceeding in any such court has been
brought in an inconvenient forum, (iv) 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 permitted by law,
and (v) EACH DEBTOR HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF
THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH DEBTOR
REPRESENTS THAT EACH SUCH PARTY HAS REVIEWED THIS WAIVER AND EACH SUCH PARTY
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
SECTION 22 Entire Agreement; Amendments And Waivers.
(a) Entire Agreement. This Agreement constitutes the entire agreement of
each of the Debtors and Agent with respect to the matters set forth herein and
supersedes any prior agreements, commitments, drafts, communications,
discussions, and understandings, oral or written, with respect thereto. None of
the terms or conditions of this Agreement imposes on the Debtors any obligation
or liability under any Loan Document (other than this Agreement). The foregoing
notwithstanding, the terms and conditions of this Agreement shall not in any way
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limit or affect the obligations or liabilities of any Debtor under the Loan
Documents to which such Debtor is a party.
(b) Amendments and Waivers. No amendment to any provision of this Agreement
shall in any event be effective unless the same shall be in writing and signed
by each of the Debtors and Agent; and no waiver of any provision of this
Agreement, or consent to any departure by any Debtor therefrom, shall in any
event be effective unless the same shall be in writing and signed by Agent. Any
such amendment, waiver, or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 23 Conflicts. In case of any conflict or inconsistency between any
terms of this Agreement, on the one hand, and any documents or instruments in
respect of the Subordinated Debt, on the other hand, then the terms of this
Agreement shall control.
SECTION 24 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
all applicable laws and regulations. If, however, any provision of this
Agreement shall be prohibited by or invalid under any such law or regulation in
any jurisdiction, it shall, as to such jurisdiction, be deemed modified to
conform to the minimum requirements of such law or regulation, or, if for any
reason it is not deemed so modified, it shall be ineffective and invalid only to
the extent of such prohibition or invalidity without affecting the remaining
provisions of this Agreement or the validity or effectiveness of such provision
in any other jurisdiction.
SECTION 25 Interpretation. This Agreement is the result of negotiations
between, and has been reviewed by the respective counsel to, the Debtors and
Agent and is the product of all parties hereto. Accordingly, this Agreement
shall not be construed against Agent merely because of Agent's involvement in
the preparation hereof.
SECTION 26 Counterparts; Telefacsimile Execution. 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 but one and the same
agreement. Delivery of an executed counterpart of this Agreement by
telefacsimile shall be equally effective as delivery of an original executed
counterpart of this Agreement. Any party delivering an executed counterpart of
this Agreement by telefacsimile also shall deliver an original executed
counterpart of this Agreement but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Agreement.
SECTION 27 Termination Of Agreement. Upon indefeasible payment and
performance in full of the Senior Debt, this Agreement shall terminate and Agent
shall promptly execute and deliver to each Debtor such documents and instruments
as shall be reasonably necessary to evidence such termination; provided,
however, that the obligations of each Debtor under Section 16 shall survive such
termination.
[Signature page follows.]
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IN WITNESS WHEREOF, the undersigned has executed and delivered this
Agreement as of the date first written above.
RIVER HOLDING CORP.,
a Delaware corporation
By: ___________________________________
Title:
XXXXXX RESPIRATORY CARE INC.,
a California corporation
By: ___________________________________
Title:
IH HOLDING LLC,
a Delaware limited liability company
By: ___________________________________
Title:
XXXXXX RESPIRATORY CARE TECATE, S. DE X.X.
DE C.V.,
a company organized under the laws of Mexico
By: ___________________________________
Title:
INDUSTRIAS XXXXXX X.X. DE C.V.,
a company organized under the laws of Mexico
By: ___________________________________
Title:
HRC HOLDING INC.,
a Delaware corporation
By: ___________________________________
Title:
S-1
XXXXX FARGO FOOTHILL, INC.,
a California corporation, as Agent
By: ___________________________________
Title:
S-2
