Exhibit 10.35
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Amendment to Promissory Note
This Amendment to Promissory Note dated as of February 23,
2001 between McKesson HBOC, Inc., a Delaware corporation ("McKeeson"), and
Horizon Pharmacies, Inc. ("Borrower").
Recitals
Borrower is the maker of that certain $7,000,000 Promissory
Note dated July 31, 1999 (as amended, the "Note") originally issued to Bank One,
NA (main office Chicago) (successor by merger to Bank One, Texas, N.A.)
("Bank"). McKesson is the assignee of Bank with regard to the Note, the related
Loan Agreement between Borrower and Bank dated July 31, 1999 and other related
documents and agreement (as amended, the "Bank Loan Documents").
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, the parties agree as follows:
1. Acknowledgement of Assignment. Borrower agrees and
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acknowledges that McKesson is the assignee of all Bank's right, title and
interest under the Bank Loan Documents and that all the Bank Loan Documents are
in full force and effect and are valid, binding and enforceable against Borrower
according to their terms. In consideration of the amendment in Section 2 hereof,
Borrower waives any claims or defenses that it may have against McKesson or any
other person or entity under the Bank Loan Documents. Borrower agrees that the
outstanding principal amount under the Note is $6,999,694.45, that unpaid
interest in the amount of $29,165.39 has accrued through February 23,2001, and
that interest is accruing thereafter at the rate of interest stated in the Note.
2. Payment Terms. McKesson and Borrower agree that, in lieu of
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any fixed matuzity date for the Note, the Note shall be payable upon demand.
Interest shall continue to be payable as set forth in the Note.
3. Certain Arrangements. Borrower agrees and acknowledges that
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(a) any commitments to make additional loans under the Bank Loan Documents have
been terminated; (b) Borrower will not assert against McKesson any claims that
Borrower may have against Bank, whether in connection with the Bank Loan
Documents or otherwise; (c) McKesson will at its option have the right, in
McKesson's sole discretion, to pursue remedies either (i) under the
Indemnification Agreement dated as of July 31, 1999 between McKesson and
Borrower (the "Indemnification Agreement") and the Security Documents (as
defined in the Credit Agreement referred to in the Indemnification Agreement) or
(ii) under the Bank Loan Documents, provided that McKesson shall not have the
right to any duplicate recovery of amounts owing by Borrower; (d) the Tri-Party
Agreement entered into among Borrower, McKesson and Bank as of July 31, 1999
shall be terminated; and (e) the execution and delivery by McKesson of this
Amendment shall not be deemed to create a course of dealing or otherwise
obligate McKesson to forebear or execute similar amendments under the same or
similar circumstances in the future.
4. Expenses. Borrower will on demand pay to McKesson the
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amount of any and all reasonable costs and expenses, including but not limited
to the reasonable fees and disbursements of its counsel and of any experts or
agents, which McKesson may incur in connection with (i) the negotiation,
preparation and execution of this Amendment or other documents executed on or
about the date hereof with respect to the Bank Loan Documents, (ii) the exercise
or enforcement by McKesson of any of its rights or remedies hereunder, or (iii)
any failure by Borrower to perform any of its obligations under the Bank Loan
Documents or the Indemnification Agreement.
5. References. Each reference in the Note to "this Note",
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"hereunder", "hereof", "herein" or words of like import referring to the Note,
and each reference in the Bank Loan Documents to the "Note", "thereunder",
"thereof" or words of like import referring to the Note shall mean and be a
reference to the Note, as amended hereby.
6. Governing Law. This Amendment shall be governed by and
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construed under the laws of the State of Texas applicable to contracts made and
to be performed in the State of Texas. This Amendment shall be given a fair and
reasonable construction in accordance with the intention of the parties and
without regard to, or aid of, any provision of law which provides that an
agreement shall be construed against the drafter thereof.
7. Miscellaneous. Neither this Amendment nor any provision
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hereof may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought. This Amendment shall be
binding upon Borrower and its successors and assigns, and all persons claiming
under or through Borrower or any such successor or assign, and shall inure to
the benefit of and be enforceable by McKesson and its successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Amendment
to Promissory Note as of the day and year first above written.
HORIZON PHARMACIES, INC.
By /s/ Xxxxxxx X. Xxx
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McKESSON HBOC, INC.
By /s/ Xxxx Xxxxxx
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ACKNOWLEDGMENT AND CONSENT OF GUARANTOR
The undersigned in its capacity as a guarantor under that certain
Guaranty dated as of July 2, 1998 made in favor of McKesson hereby (i)
acknowledges and consents to the execution, delivery and performance by Borrower
of the foregoing Amendment to Promissory Note (the "Amendment"), (ii)
acknowledges that the undersigned's consent is being sought purely as a
protective measure and understands that the terms of the Credit Agreement dated
as of July 2, 1998 and related Loan Document may be amended without prior
notice to or consent of the undersigned and without discharging or otherwise
affecting the liability of the undersigned under the Guaranty, and (iii)
reaffirms that it will continue to be bound by all of the provisions of the
Guaranty and that such Guaranty will remain in full force and effect
notwithstanding the execution and delivery by Borrower of the Amendment referred
to above.
HORIZON HOME CARE, INC.
By:_________________________
Its:________________________
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