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EXHIBIT 10.1
FORBEARANCE AGREEMENT
THIS FORBEARANCE AGREEMENT ("Agreement") is made as of the 30th day of
March, 2001 (the "Effective Date") among HORIZON MEDICAL PRODUCTS, INC., a
Georgia corporation (the "Borrower"), HORIZON ACQUISITION CORP.,
STRATO/INFUSAID, INC. and XXXXXX CORPORATION (collectively the "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").
RECITALS:
A. Lender has made a loan to Borrower (the "Loan") evidenced by
Revolving Credit Note in the original principal amount of $50,000,000.00 from
Borrower to Lender dated May 26, 1998 (the "Note").
B. The obligation of the parties under the Loan are governed by,
in part, that certain Amended and Restated Credit Agreement, dated as of May 26,
1998, as amended by the First Amendment to Amended and Restated Credit Agreement
dated as of November 11, 1998, and the Second Amendment to Amended and Restated
Credit Agreement and Waiver dated as of March 31, 1999 and the Third Amendment
to the Amended and Restated Credit Agreement and Waiver dated March 29, 2000 and
the Fourth Amendment to the Amended and Restated Credit Agreement and Waiver
dated June 6, 2000 and the Fifth Amendment to the Amended and Restated Credit
Agreement and Waiver dated August 14, 2000 (the "Credit Agreement"; capitalized
terms used in this Agreement and not otherwise defined herein have the meanings
given in the Credit Agreement).
C. The Guarantors executed and delivered to the Lender that
certain Subsidiary Guaranty Agreement dated as of July 15, 1997 from Horizon
Acquisition Corp. and Strato/Infusaid, Inc., as joined by Xxxxxx Corporation on
October 15, 1998 (as the same may be amended, supplemented, restated or
otherwise modified from time to time in accordance with its terms, the
"Guaranty") pursuant to which each of the Guarantors, jointly and severally,
unconditionally guaranteed the Note and all of the obligations under the Credit
Agreement.
D. The Loan is secured by that certain Security Agreement, dated
as of July 15, 1997, between Borrower and Lender, as amended by that certain
First Amendment to Security Agreement, dated May 26, 1998 (as the same may be
amended, supplemented, restated or otherwise modified from time to time in
accordance with its terms, the "Security Agreement").
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E. The Loan is further secured by that certain Subsidiary
Security Agreement, dated as of July 15, 1997, as amended by that certain First
Amendment to Subsidiary Security Agreement, Joinder Agreement and First
Amendment to Subsidiary Guaranty Agreement, dated as of May 26, 1998, by and
among Horizon Acquisition Corp., Strato/Infusaid, Inc. and Agent (as the same
may be amended, supplemented, restated or otherwise modified from time to time
in accordance with its terms, the "Subsidiary Security Agreement").
F. The Loan is further secured by that certain Trademark Security
Agreement from Borrower to Agent, dated as of May 26, 1998 (as the same may be
amended, supplemented, restated or otherwise modified from time to time in
accordance with its terms, the "Trademark Security Agreement").
G. The Loan is further secured by that certain Trademark Security
Agreement between Horizon Acquisition Corp. and Agent, dated as of May 26, 1998
(as the same may be amended, supplemented, restated or otherwise modified from
time to time in accordance with its terms, the "Horizon Trademark Security
Agreement").
H. The Loan is further secured by that certain Trademark Security
Agreement between Strato/Infusaid, Inc. and Agent, dated as of May 26, 1998 (as
the same may be amended, supplemented, restated or otherwise modified from time
to time in accordance with its terms, the "Strato Trademark Security
Agreement").
I. The Loan is further secured by that certain Patent Collateral
Assignment Agreement between Borrower and Agent, dated as of May 26, 1998 (as
the same may be amended, supplemented, restated or otherwise modified from time
to time in accordance with its terms, the "Patent Assignment").
J. The Loan is further secured by that certain Patent Collateral
Assignment Agreement between Strato/Infusaid, Inc. and Agent, dated as of May
26, 1998 (as the same may be amended, supplemented, restated or otherwise
modified from time to time in accordance with its terms, the "Strato Patent
Assignment").
K. The Borrower executed and delivered that certain Note dated
June 6, 2000 from Borrower to Lender for the Bridge Loan (the "Bridge Loan") in
the original principal amount of $900,000.00 (the "Bridge Note").
X. Xxxx Family Investments, L.L.L.P. ("Xxxx L.L.L.P.") and
Xxxxxxxx X. Xxxx ("Xxxx") executed and delivered to Borrower a Promissory Note
dated June 6, 2000 in the original principal amount of $900,000.00 which was
endorsed to Lender (the "Xxxx Note").
X. Xxxx L.L.L.P. and Xxxx executed and delivered to Borrower a
Loan Agreement dated June 6, 2000 for a loan (the "Xxxx Loan") which was
assigned to Lender (the "Xxxx Loan Agreement").
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N. The Xxxx Loan is secured by that certain Pledge Agreement,
dated June 6, 2000, between Xxxx, as pledgor, and Horizon Medical Products,
Inc., as pledgee, covering 1,889,733 shares of Horizon Medical Products, Inc.
common stock.
O. The Xxxx Loan is further secured by that certain Pledge
Agreement, dated June 6, 2000, between Xxxx L.L.L.P., as pledgor, and Horizon
Medical Products, Inc., as pledgee, covering 924,210 shares of Horizon Medical
Products, Inc. common stock.
P. The Bridge Loan is secured by that certain Pledge and
Assignment of Note and Collateral Agreement, dated June 6, 2000, by and between
Horizon Medical Products, Inc. and Lender (the "Xxxx Assignment").
Q. The documents and instruments described in A to P herein
above, as well as all other documents executed in connection with the Loan and
the Bridge Loan, are collectively hereinafter referred to as the "Loan
Documents".
R. The Borrower represents and certifies that the Guarantors are
all wholly or partially owned subsidiaries of Borrower (collectively the
"Subsidiaries").
S. Certain events of default have occurred and are continuing
under the Loan Documents, including, but not limited to (i) at the present time
Borrower is in default under the terms of the Credit Agreement and Promissory
Note in that Borrower has failed to make certain principal payments that were
due on or before October 1, 2000 and January 1, 2001; (ii) Borrower has
defaulted on its financial performance as required under the Credit Agreement in
that the following financial covenants (as defined in the Credit Agreement) have
been breached: Minimum Net Worth, Total Debt Service Coverage Ratio, Leverage,
Minimum EBITDA, Interest Coverage and Debt to Capitalization; (iii) the Bridge
Loan Note matured on August 30, 2000 and remains unpaid; and the Lawsuit
(hereinafter defined).
T. Borrower and the Guarantors have requested that the Lender
forbear from exercising its rights and remedies under the Loan Documents for a
period of time specified herein in reliance upon the agreements, covenants,
representations and warranties of the Borrower and Guarantors herein and for
other consideration.
U. Horizon Acquisition Corp. acknowledges that it has and
continues to receive direct and indirect benefits from the financial
accommodations made by the Lender to Borrower under the Credit Agreement and
Loan Documents and will receive direct and indirect benefits from the execution
of this Agreement and, accordingly, is willing to continue to guaranty the
Borrower's obligations to the Lender on the terms and conditions contained in
the Guaranty and to pledge its assets to the Lender on the terms and conditions
set forth in the Loan Documents.
V. Strato/Infusaid, Inc. acknowledges that it has and continues
to receive direct and indirect benefits from the financial accommodations made
by the Lender to Borrower under the Credit Agreement and Loan Documents and will
receive direct and
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indirect benefits from the execution of this Agreement and, accordingly, is
willing to continue to guaranty the Borrower's obligations to the Lender on the
terms and conditions contained in the Guaranty and to pledge its assets to the
Lender on the terms and conditions set forth in the in the Loan Documents.
X. Xxxxxx Corporation acknowledges that it has and continues to
receive direct and indirect benefits from the financial accommodations made by
the Lender to Borrower under the Credit Agreement and will receive direct and
indirect benefits from the execution of this Agreement and, accordingly, is
willing to continue to guaranty the Borrower's obligations to the Lender on the
terms and conditions contained in the Guaranty and to pledge its assets to the
Lender on the terms and conditions set forth in the Loan Documents.
AGREEMENT:
For and in consideration of the mutual covenants herein, Ten Dollars
($10.00), and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Borrower, Guarantors, Lender and Agent agree
as follows:
1. Recitals. The foregoing recitals are confirmed by the parties
as true and correct and are incorporated herein by reference. The recitals are a
substantive, contractual part of this Agreement.
2. No Waiver. The execution, delivery and performance of this
Agreement by Lender and the acceptance by Lender of performance of Borrower and
Guarantors hereunder (a) shall not constitute a waiver or release by Lender of
any default that may now or hereafter exist under the Loan Documents, (b) shall
not constitute a novation of the Loan Documents as it is the intent of the
parties to modify the Loan Documents as expressly set out herein and (c) except
as expressly provided in this Agreement, shall be without prejudice to, and is
not a waiver or release of, Lender's rights at any time in the future to
exercise any and all rights conferred upon Lender by the Loan Documents or
otherwise at law or in equity, including but not limited to the right to
institute collection or arbitration proceedings against Borrower and/or
Guarantors and/or to exercise any right against any other person or entity not a
party to this Agreement.
3. Forbearance. So long as this Agreement is not terminated
earlier as provided herein, Lender agrees not to foreclose or initiate or
continue any foreclosure action or effort with respect to any collateral
securing either the Note or the Bridge Note, institute suit or arbitration
proceedings for collection of the Note or the Bridge Note against Borrower,
Guarantors, Xxxx or Xxxx L.L.L.P., or exercise any other remedies available to
it under the Loan Documents or under applicable law from the Effective Date
until the earlier of March 31, 2002 or the time at which this Agreement is
terminated pursuant to paragraph 5 below (the "Termination Date"). The period of
time from the Effective Date through the Termination Date shall be referred to
as the "Forbearance Period". If all amounts due and owing under the Loan
Documents are not paid in full on or before the Termination Date, then Lender
may seek to foreclose upon any collateral
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securing the Note or the Bridge Note and to exercise any other remedies to which
Lender may be entitled under the Loan Documents or applicable law to collect
amounts due under the Loan Documents. Borrower and Guarantors agree that neither
Borrower nor Guarantors will, during the Forbearance Period, initiate any action
of any kind against Lender with respect to the Loan Documents, exercise any
remedy available under the Loan Documents or otherwise, or make any type of
demand upon Lender with respect to the Note or the Bridge Note, except for
requests for advancement of funds under the Working Capital Loans subject to the
provisions set forth in the Credit Agreement of this Agreement.
4. Payment and Performance Obligations.
(a) Payments at Closing. Contemporaneously with the
execution of this Agreement, Borrower shall pay to Lender (i) a payment of
$46,713.86 for Lender's unreimbursed attorney's fees, title charges and expenses
incurred to date, and (ii) a payment of $10,000 as a forbearance and
restructuring fee.
(b) 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. Such 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.
(c) Bridge Note Modifications. Borrower agrees to pay any
accrued and unpaid interest on the Bridge Note on the first day of each month
commencing on April 1, 2001 and continuing on the same day of each successive
month thereafter through and including November 1, 2001. Borrower agrees to
make, or cause to be made, principal payments to Lender of $300,000 each on the
Bridge Note on or before May 31, 2001 and on or before August 31, 2001. On or
before November 30, 2001, the balance of all principal, interest and fees due
and owing on the Bridge Note is and shall be due and payable in full. Interest
will continue to accrue and shall be computed on the outstanding principal
balance of the Bridge Note from time to time during the Forbearance Period at
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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, 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 Bridge Note, Credit
Agreement and Loan Documents shall remain unchanged.
5. Termination of this Agreement. This Agreement will terminate
upon the expiration of the Forbearance Period, unless terminated earlier by
Lender, at Lender's sole option, upon the occurrence of any of the following
(collectively, the expiration of the Forbearance Period or the termination of
this Agreement pursuant to this paragraph shall be a "Termination Event" thereby
allowing Lender to terminate this Agreement):
(a) Borrower and/or any of the Guarantors files a (i)
petition for bankruptcy under any chapter of the Federal Bankruptcy Code, or
(ii) an involuntary petition for bankruptcy under any chapter of the Federal
Bankruptcy Code is filed against Borrower and/or any Guarantors and is not
dismissed for a period of 60 or more days (unless and until an order for relief
is entered thereon).
(b) An Event of Default occurs under the Loan Documents
on or after the Effective Date, which is a failure by Borrower to timely pay any
scheduled principal or interest payment under the Loan Documents when due as
such obligations have been modified herein.
(c) An Event of Default occurs under the Loan Documents
(other than as set forth in b above) on or after the Effective Date, including
but not limited to a payment or performance default by Borrower or Guarantors
thereunder, other than a violation of the Financial Covenants set forth in
Article VI of the Credit Agreement or a violation of certain sections of the
Credit Agreement as a result of the lawsuit disclosed to Lender on Exhibit "A"
hereto or as a result of the failure of Borrower to make a scheduled April 3,
2001 payment on the Ideas for Medicine, Inc. $6,050,054.00 Subordinated
Promissory Note, dated October 9, 2000.
(d) Borrower or Guarantors breach or default in
performance of any covenant or agreement contained in this Agreement.
(e) Violation of any of the following financial covenants
during the Forbearance Period:
(1) Minimum Net Worth. At no time during the
Forbearance Period will Borrower permit the Minimum Net Worth
to be less than $20,000,000.
(2) Capital Expenditures. The aggregate amount
of Capital Expenditures for any Fiscal Year shall not exceed
$500,000.
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(3) Total Debt Service Coverage Ratio. The
Borrower shall not permit the ratio on the last day of any
month of (i) Consolidated Free Cash Flow to (ii) Total Debt
Service, in each case for the twelve-month period then ended
to be less than the following:
Months Ratio
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March - September 2001 .35 to 1.00
October - December 2001 .45 to 1.00
January - March 2002 .70 to 1.00
(4) Leverage. At no time shall the ratio of (i)
Consolidated Total Debt at such time to (ii) Adjusted EBITDA
for the twelve-month period then most recently ended, exceed
the ratio set forth below for the following periods:
Months Ratio
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March - July 2001 15.75 to 1.00
August - October 2001 13.75 to 1.00
November 2001 - March 2002 10.00 to 1.00
(5) Minimum EBITDA. At no time during any period
specified below shall EBITDA for the twelve consecutive months
then most recently ended be less than the corresponding amount
set forth below:
Months Amount
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March - June 2001 $3,450,000
July - September 2001 $3,600,000
October - December 2001 $3,850,000
January - March 2002 $5,000,000
(6) Interest Coverage. The Borrower shall not
permit the ratio, calculated on the last day of any month for
the period of twelve months then most recently ended, of (i)
Consolidated Free Cash Flow to (ii) the aggregate interest
charges incurred by the Company and its Consolidated
Subsidiaries for such period, whether expensed or capitalized,
including the portion of any obligation under Capital Leases
allocable to interest expenses in accordance with GAAP and the
portion of the debt or premium (but not expenses of issuance)
that shall be amortized in such period, to be less than the
ratio set forth below for the period in which the last day of
such calendar month shall occur:
Months Ratio
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March - June 2001 0.40 to 1.00
July - September 2001 0.45 to 1.00
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October - December 2001 0.60 to 1.00
January - March 2002 0.90 to 1.00
(7) Debt to Capitalization. The ratio of (i)
Consolidated Total Debt to (ii) Consolidated Capitalization
shall not exceed 75%.
(f) Borrower and the Guarantors fail to execute and
deliver or fail to cause Xxxxxxxx Xxxx to execute and deliver to the Lender,
within thirty (30) days from the date hereof, documentation and a title
certificate in form and content satisfactory to the Lender and to Lender's
counsel for purposes of creating a first priority perfected security interest in
a 1982 Hatteras 55' Sports Fisherman boat of Xxxxxxxx Xxxx with an estimated
fair market value of $400,000.00 to further secure the Bridge Note and Bridge
Loan. If the boat of Xxxxxxxx Xxxx is sold by Xxxxxxxx Xxxx prior to perfection
of Lender's security interest and Borrower and Guarantors fail to cause Xxxxxxxx
Xxxx to seek Lender's prior written consent to such sale and the proceeds of
such sale are not applied to the outstanding balance of the Bridge Note.
(g) Borrower and the Guarantors fail within thirty (30)
days after the Effective Date to furnish Lender with a Mortgage to secure the
Note covering each parcel of real property in which the fee is owned by the
Borrower or any of the Guarantors (the "Real Property"), together with an ALTA
extended coverage lender's policy of title insurance in a policy amount equal to
100% of the greater of (i) purchase price of such acquired property (including
any liabilities assumed in connection with the acquisition) or (ii) the fair
market value of such property, insuring such Mortgage as a valid, enforceable
first Lien on the Borrower's or Guarantors' interest in the Real Property
covered thereby, subject only to such exceptions as are satisfactory to the
Lender, together with an ALTA survey with respect to each parcel of the Real
Property acquired (other than an office condominium), in form and substance
reasonably satisfactory to the Lender, and legible copies of all documents
affecting title, which shall show all recording information. The policy,
including each of the exceptions to coverage contained therein, shall be subject
to the approval of the Lender, and shall be issued by a title company acceptable
to the Lender. Attached to the policy shall be any and all endorsements
reasonably required by the Lender, including (a) a comprehensive endorsement
(ALTA 100 or equivalent) covering restrictions and other maters, (b) a broad
form zoning endorsement, which specifically ensures that applicable parking
requirements, if any, have been satisfied, (c) an endorsement ensuring that the
lien of each Mortgage is valid against any applicable usury laws or other laws
prohibiting the charging of interest on interest in the state(s) where such Real
Property is located, (d) an endorsement ensuring that the Real Property has
access to a dedicated public street, (e) a revolving credit endorsement, (f) a
continguity endorsement, (g) a survey and "same as" endorsement and (h) an
endorsement deleting the so-called "doing business" exclusion.
(h) Borrower or any Guarantors fail to fully cooperate
with, and comply in all respects with any demands related to borrowing base
audits to be conducted quarterly by Lender or its agents and to provide any and
all information necessary to comply with monitoring of its accounts receivable
and inventory which comprise of
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Borrower's borrowing base. Any and all costs, fees and expenses related to the
foregoing audit and monitoring shall be borne solely at Company's expense and
shall be promptly reimbursed to Lender, at its request.
(i) Borrower fails to execute, deliver and grant to the
Lender, within sixty (60) days from the Effective Date, warrants in Borrower in
an amount sufficient to constitute a three percent (3%) ownership interest in
Borrower. The strike price for the shares shall be $0.05 per share and shall be
exercisable by Lender at any time during a three (3) year period from issuance
without regard to the status of the Loan or the Bridge Loan. Other than stock
sold to Lender pursuant to the warrants, Borrower fails to sell shares of stock
for their fair market value or if Borrower sells shares of stock for less than
their fair market value, Borrower fails to provide Lender with dilution
protection.
(j) Borrower fails to successfully hire on or before June
30, 2001 a new Chief Operating Officer to manage the day-to-day operations of
Borrower and report to the Board of Directors.
(k) Borrower fails to fully cooperate with, and comply in
all respects with any demands related to the operational review being conducted
by Osnos Associates or its successors and to furnish to Lender or its agents or
consultants any information, reports, statements or other documentation
respecting the business operations and financial condition of Borrower and its
Subsidiaries respectively, from time to time, as may be reasonably requested.
Any and all costs, fees and expenses related to the foregoing review of
operations shall be borne solely at Borrower's expense and shall be promptly
reimbursed to Lender, at its request.
(l) Borrower uses Lender's collateral for the repayment
of principal debt or other indebtedness to junior lien holders and subordinated
debt holders outside of the schedule (the "Schedule") presented to Lender, a
copy of which is attached hereto as Exhibit "B".
(m) On or before May 1, 2001, Borrower fails to either
(i) sell the assets of the Ideas for Medicine product line upon terms acceptable
to Lender or (ii) obtain an agreement from Ideas for Medicine, Inc. providing
for the deferral of all payments under the $6,050,054.00 Subordinated Promissory
Note, dated October 9, 2000, through the Termination Date.
6. 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"):
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(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;
(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.
7. Acknowledgment of Default and Amounts Due. Lender, Borrower
and Guarantors acknowledge that (a) the aggregate outstanding unpaid balance of
the Note (including outstanding principal and accrued, unpaid interest) as of
March 22, 2001 for the revolver is $3,314,218.26, of which $3,295,406.22
represents outstanding principal, and $18,812.04 represents accrued unpaid
interest and for the term/acquisition facility is $39,664,437.69, of which
$39,443,038.98 represents outstanding principal and $221,398.71 represents
accrued, unpaid interest, (b) the aggregate outstanding unpaid balance of the
Bridge Note (including outstanding principal and accrued, unpaid interest) as of
March 22, 2001 is $905,135.14, of which $900,000.00 represents outstanding
principal, and $5,135.14 represents accrued unpaid interest, (c) due to the
Borrower's failure to comply with the terms of the Loan Documents, the
outstanding obligations under the Note and the Bridge Note have been accelerated
and are due and payable in full, and (d) Borrower and Guarantors now owe Lender
for statutory attorney's fees and expenses in accordance with O.C.G.A. ss.
13-1-11 subject to the provisions of paragraph 11 below which provide for a
waiver of statutory attorney's fees (but not actual attorney's fees) upon the
satisfaction of certain conditions subsequent. Borrower and Guarantors waive any
and all rights to other notice of payment default or any other default, protest
and notice of protest, dishonor, diligence in collecting and the bringing of
suit or arbitration proceedings against any party, notice of intention to
accelerate, notice of acceleration, demand for payment and any other notices
whatsoever regarding the Loan Documents, and further waive any claims that any
notices previously given are insufficient for any reason.
8. Limitation on Interest. No provision of this Agreement, any of
the Loan Documents, or any instrument evidencing or securing the Note or the
Bridge Note, or otherwise relating to the indebtedness evidenced by the Loan
Documents, shall require the payment or permit the collection, application or
receipt of interest in excess of the maximum rate permitted by applicable state
or federal law. If any excess of interest in such respect is herein or in any
such other instrument provided for, or shall be adjudicated to be so provided
for herein or in any such instrument, the provisions of this paragraph
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shall govern, and neither Borrower nor any Guarantors nor their respective
heirs, personal representatives, successors or assigns shall be obligated to pay
the amount of such interest to the extent it is in excess of the amount
permitted by applicable law. It is expressly stipulated and agreed to be the
intent of Borrower and Lender at all times to comply with the usury and other
laws relating to the Loan Documents and any subsequent revisions, repeals or
judicial interpretations thereof, to the extent applicable to the Loan
Documents. In the event Lender ever receives, collects or applies as interest
any such excess, such amount which would be excessive interest shall be applied
to the reduction of the unpaid principal balance of the Note or the Bridge Note,
as applicable, and, if upon such application the principal balance of the Note
or the Bridge Note, as applicable are paid in full, any remaining excess shall
be paid forthwith to Borrower and the provisions of the Loan Documents and any
demand or other charging document shall immediately be deemed reformed and the
amounts thereafter collectible thereunder reduced, without the necessity of
execution of any new document, so as to comply with the then applicable law, but
so as otherwise to permit the recovery of the fullest amount called for
thereunder. In determining whether or not the interest paid or payable under any
specific contingency exceeds the maximum rate of interest allowed to be charged
by applicable law, Borrower and Lender shall, to the maximum extent permitted
under applicable law, amortize, prorate, allocate and spread the total amount of
interest throughout the entire term of the respective Loan so that the amount or
rate of interest charged for any and all periods of time during the term of the
Loan is to the greatest extent possible less than the maximum amount or rate of
interest allowed to be charged by law during the relevant period of time.
Notwithstanding any of the foregoing, if at any time applicable laws shall be
changed so as to permit a higher rate or amount of interest to be charged than
that permitted prior to such change, then unless prohibited by law, references
in the Note to "applicable law" for purposes of determining the maximum interest
or rate of interest that can be charged shall be deemed to refer to such
applicable law as so amended to allow the greater amount or rate of interest.
9. Representations and Warranties. In order to induce Lender to
execute, deliver, and perform this Agreement, Borrower and Guarantors warrant
and represent to Lender that:
(a) this Agreement is not being made or entered into with
the actual intent to hinder, delay, or defraud any entity or person;
(b) this Agreement is not intended by the parties to be a
novation of the Loan Documents and, except as expressly modified herein, all
terms, conditions, rights and obligations as set out in the Loan Documents are
hereby reaffirmed and shall otherwise remain in full force and effect as
originally written and agreed;
(c) no action or proceeding, including, without
limitation, a voluntary or involuntary petition for bankruptcy under any chapter
of the Federal Bankruptcy Code, has been instituted by or threatened against
Borrower or any Guarantors;
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(d) the execution of this Agreement by Borrower and
Guarantors and the performance by Borrower and Guarantors of their obligations
hereunder will not violate or result in a breach or constitute a default under
any agreements to which any of them is a party;
(e) all information which is material to understanding
the present financial condition of the Borrower or Guarantors which was provided
by Borrower and Guarantors to Lender prior to the date hereof, including,
without limitation, all financial statements, balance sheets, and cash flow
statements, was, at the date of delivery, to the best of Borrower's and
Guarantors' knowledge, true and correct in all material respects and were,
except as disclosed to Lender, prepared in accordance with GAAP. Borrower and
Guarantors recognize and acknowledge that Lender is entering into this Agreement
based in part on the financial information provided to Lender by each of them
and that the truth and correctness of that financial information is a material
inducement to Lender in entering into this Agreement. During the term of this
Agreement, Borrower and Guarantors agree to advise Lender promptly in writing of
any and all new information, facts, or occurrences which would in any way
materially supplement, contradict, or affect any financial statements, balance
sheets, cash flow statements, or similar items furnished to Lender;
(f) this Agreement and the Loan Documents constitute the
entire agreement among Lender, Guarantors and Borrower with respect to this
matter.
10. Waiver of Claims and Release. Borrower and Guarantors warrant
and represent to Lender that the Note or the Bridge Note are not subject to any
credits, charges, claims, or rights of offset or deduction of any kind or
character whatsoever; and Borrower and Grantors hereby ratify and reaffirm their
obligations under the Loan Documents; and Borrower and Guarantors hereby release
and discharge Lender and its predecessors, successors, assigns, officers,
managers, directors, shareholders, employees, agents, attorneys,
representatives, parent corporations, subsidiaries, and affiliates (collectively
referred to as "Affiliates"), jointly and severally from any and all claims and
causes of action, whether known or unknown and whether now existing or hereafter
arising, including without limitation, any usury claims, that have at any time
been owned, or that are hereafter owned, in tort or in contract by Borrower or
any Guarantors or subsidiaries and that arise out of any one or more
circumstances or events that occurred prior to the date of this Agreement which
they had, may have or claim to have against Lender or Affiliates. Moreover,
Borrower and Guarantors and subsidiaries, jointly and severally, waive any and
all claims now or hereafter arising from or related to any delay by Lender or
Affiliates in exercising any rights or remedies under the Loan Documents,
including, without limitation, any delay in foreclosing any collateral securing
any of the Note or the Bridge Note.
11. Expenses. Borrower agrees to pay to Lender, upon receipt of
Lender's invoice, all costs, expenses and attorneys' fees incurred by Lender in
connection with the enforcement of this Agreement and any instrument or
agreement required hereunder, including but not limited to any such costs,
expenses and fees arising out of the resolution of any conflict, dispute, motion
regarding entitlement to rights or rights of action, or other
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action to enforce Lender's rights in a case arising under Xxxxx 00, Xxxxxx
Xxxxxx Code. Borrower agrees to pay Lender, upon receipt of Lender's invoice,
all costs, expenses and attorneys' fees incurred by Lender in the preparation
and administration of this Agreement (including any amendments hereto or
instruments or agreements required hereunder). In the event the Loan is paid in
full before the earlier to occur of a Termination Event or the Termination Date,
Lender will waive the payment of statutory, but not actual, attorney's fees. In
the event this Agreement is terminated, Borrower acknowledges that statutory
attorney's fees of ten percent (10%) of all sums owed by Borrower to Lender are
due and payable in full.
12. Setoff. Upon the occurrence and during the continuance of any
default hereunder, the Lender (or any of its affiliates) is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Lender (or any of its affiliates) to or for the credit or the account of
the Borrower against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement and any Note held by the Lender
irrespective of whether the Lender shall have made any demand under this
Agreement or such Note and although such obligations may be unmatured. The
Lender agrees promptly to notify the Borrower after any such set-off and
application made by the Lender; provided, however, that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of the Lender under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that the Lender may
have.
13. Bankruptcy.
(a) In entering into this Agreement, Borrower, Guarantors
and Lender hereby stipulate, acknowledge and agree that Lender gave up valuable
rights and agreed to forbear from exercising legal remedies available to it in
exchange for the promises, representations, acknowledgments and warranties of
Borrower and Guarantors as contained herein and that Lender would not have
entered into this Agreement but for such promises, representations,
acknowledgments, agreements, and warranties, all of which have been accepted by
Lender in good faith, the breach of which by Borrower or Guarantors in any way,
at any time, now or in the future, would admittedly and confessedly constitute
cause for dismissal of any such bankruptcy petition pursuant to 11 U.S.C. ss.
1112(b).
(b) As additional consideration for Lender agreeing to
forbear from immediately enforcing its rights and remedies under this Agreement,
the Note and in the Loan Documents, including but not limited to the institution
of foreclosure proceedings, Borrower and Guarantors agree that in the event a
bankruptcy petition under any Chapter of the Bankruptcy Code (11 U.S.C. ss. 101,
et seq.) is filed by or against Borrower or Guarantors at any time after the
execution of this Agreement, Lender shall be entitled to the immediate entry of
an order from the appropriate bankruptcy court granting Lender complete relief
from the automatic stay imposed by ss. 362 of the Bankruptcy Code (11 U.S.C. ss.
362) to exercise its foreclosure and other rights, including but not limited to
obtaining a foreclosure
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judgment and foreclosure sale, upon the filing with the appropriate court of a
motion for relief from the automatic stay with a copy of this Agreement attached
thereto. Borrower and Guarantors specifically agree (i) that upon filing a
motion for relief from the automatic stay, Lender shall be entitled to relief
from the stay without the necessity of an evidentiary hearing and without the
necessity or requirement of the Lender to establish or prove the value of the
Collateral, the lack of adequate protection of its interest in the Collateral,
or the lack of equity in the Collateral; (ii) that the lifting of the automatic
stay hereunder by the appropriate bankruptcy court shall be deemed to be "for
cause" pursuant to ss. 362(d)(1) of the Bankruptcy Code (11 U.S.C. ss.
362(d)(1)); and (iii) that Borrower and Guarantors will not directly or
indirectly oppose or otherwise defend against Lender's efforts to gain relief
from the automatic stay. This provision is not intended to preclude Borrower or
Guarantors from filing for protection under any Chapter of the Bankruptcy Code.
The remedies prescribed in this paragraph are not exclusive and shall not limit
Lender's rights under the Loan Documents, this Agreement or under any law.
All of the above terms and conditions have been freely bargained for
and are all supported by reasonable and adequate consideration and the
provisions herein are material inducements for Lender entering into this
Agreement.
14. Miscellaneous.
(a) This Agreement may be executed in a number of
identical counterparts which, taken together, shall constitute collectively one
(1) agreement and any facsimile version of the signatures on the Agreement shall
be deemed to be originals; but in making proof of this Agreement, it shall not
be necessary to produce or account for more than one such counterpart executed
by the party to be charged.
(b) Any future waiver, alteration, amendment or
modification of any of the provisions of the Loan Documents or this Agreement
shall not be valid or enforceable unless in writing and signed by all parties,
it being expressly agreed that neither the Loan Documents, or this Agreement can
be modified orally, by course of dealing or by implied agreement. Moreover, any
delay by Lender in enforcing its rights after an event of default shall not be a
release or waiver of the event of default and shall not be relied upon by the
Borrower or Guarantors as a release or waiver of the default.
(c) This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto, their heirs, executors, administrators,
successors, legal representatives, and assigns.
(d) The headings of paragraphs in this Agreement are for
convenience of reference only and shall not in any way affect the interpretation
or construction of this Agreement.
(e) THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF GEORGIA AND FEDERAL LAW, AS APPLICABLE.
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(f) The warranties and representations of the parties in
this Agreement shall survive the termination of this Agreement.
(g) The terms and conditions set forth in this Agreement
are the product of joint draftsmanship by all parties, each being represented by
counsel and any ambiguities in this Agreement or any documentation prepared
pursuant to or in connection with this Agreement shall not be construed against
any of the parties because of draftsmanship.
(h) For purposes of this Agreement and the Loan
Documents, the addresses for notice to Borrower, Guarantors and Lender are as
follows:
BORROWER:
Seven North Parkway Square
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
GUARANTORS:
Seven North Parkway Square
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
LENDER:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xx. Xxx Xxxxxx
Notice shall be in writing, and shall be deemed to have been given (i)
72 hours after being sent by certified or registered mail, return receipt
requested, postage prepaid and addressed as set forth above; or (ii) if by
personal delivery (a) to Borrower or Guarantors, when personally delivered to
Borrower or Guarantors or any other officer, partner, agent or employee of such
Borrower or Guarantors at its respective address set forth above, or (b) if to
Lender, when personally delivered to an officer of the Commercial Lender Special
Assets Department of Lender at the address set forth above or (iii) if by
facsimile, upon transmission and receipt. Rejection or other refusal to accept
or inability to deliver because of a changed address of which no notice has been
received shall also constitute service of notice. Borrower, Guarantors and
Lender may change such address by sending written notice to the other in
accordance with the foregoing; however, no written notice of change of address
shall be effective until the date of receipt thereof. The parties hereto agree
that any notice sent to the Borrower or Guarantors shall
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be deemed notice to all general partners in the event that the Borrower or
Guarantors is a partnership.
15. FINAL AGREEMENT. THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT
AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR ORAL OR WRITTEN, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS AMONG THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.
EXECUTED under seal as of the Effective Date.
BORROWER:
HORIZON MEDICAL PRODUCTS, INC.
Signed, sealed and delivered By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
in the presence of: --------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
------------------------------
Title: President
/s/ Xxx X. Xxxxxxxxx III -----------------------------
-----------------------------
Unofficial Witness
/S/ Lluviscela Xxxxxxxxxxxxx (CORPORATE SEAL)
-----------------------------
Notary Public
My commission expires: June 29, 2004
[NOTARIAL SEAL]
[signatures continued on following pages]
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17
GUARANTORS:
HORIZON ACQUISITION CORP.
Signed, sealed and delivered By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
in the presence of: --------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
------------------------------
Title: President
/s/ Xxx X. Xxxxxxxxx III -----------------------------
-------------------------------------
Unofficial Witness
/s/ Lluviscela Xxxxxxxxxxxxx (CORPORATE SEAL)
-------------------------------------
Notary Public
My commission expires: June 29, 2004
[NOTARIAL SEAL]
STRATO/INFUSAID, INC.
Signed, sealed and delivered By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
in the presence of: --------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
------------------------------
Title: Executive VP
/s/ Xxx X. Xxxxxxxxx III -----------------------------
-------------------------------------
Unofficial Witness
/s/ Lluviscela Xxxxxxxxxxxxx (CORPORATE SEAL)
-------------------------------------
Notary Public
My commission expires: Junes 29, 2004
[NOTARIAL SEAL]
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XXXXXX CORPORATION
Signed, sealed and delivered By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
in the presence of: --------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
------------------------------
Title: President
/s/ Xxx X. Xxxxxxxxx III -----------------------------
----------------------------
Unofficial Witness
/s/ Lluviscela Xxxxxxxxxxxxx (CORPORATE SEAL)
----------------------------
Notary Public
My commission expires:
[NOTARIAL SEAL]
LENDER AND AGENT:
BANK OF AMERICA, N.A., successor to
BANC OF AMERICA COMMERCIAL FINANCE
CORPORATION
Signed, sealed and delivered By: /s/ Xxxxxx X. Xxxxxx
in the presence of: --------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------
Title: Sr. Vice President
-----------------------------
----------------------------
Unofficial Witness
(BANK SEAL)
----------------------------
Notary Public
My commission expires:
[NOTARIAL SEAL]
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EXHIBIT "A"
LAWSUIT
Xxxxxx Xxxxxxx and Xxxxxx Xxxxx v. Horizon Medical Products, Inc., United States
District Court for the Southern District of New York, file number 01CV-1151.
20
EXHIBIT "B"
SCHEDULE
Payments by Borrower to Xxxxxx shareholders in the aggregate of $10,000
per month from April 1, 2001 through February 10, 2002 plus accrued interest
through February 10, 2002.
