EXHIBIT 10.13
REIMBURSEMENT AND ASSUMPTION AGREEMENT
THIS REIMBURSEMENT AND ASSUMPTION AGREEMENT (the "Agreement"), is made,
executed and delivered by and between American Medical Providers, Inc., a
Delaware corporation ("AMP"), and Ankle & Foot Centers of America, LLC, a
Delaware limited liability partnership ("AFC"), with respect to the
reimbursement assumption by AMP of certain of AFC's obligations. By this
instrument, AMP and AFC, for good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), agree as follows:
1. ASSIGNMENT AND ASSUMPTION. AMP shall reimburse certain expenses,
assume certain debt and perform and carry out all of the contracts, obligations
and agreements of AFC all as set forth on Schedule A attached hereto at such
time as AMP has consummated its initial public offering of securities.
2. GENERAL
2.1 FURTHER ASSURANCES. AFC and AMP agree, each at its own expense, to
perform all such further acts and execute and deliver all such further
agreements, instruments and other documents as the other shall reasonably
request to evidence more effectively the reimbursement and assumptions made by
AMP under this Agreement.
2.2 DISCLAIMER. All rights and interests created by this Agreement are
exclusive to the parties to this Agreement, their successors and assigns. No
right, title, interest or cause of action is created for or inures to the
benefit of any other person or entity under this Agreement.
2.3 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given on the date of delivery, if delivered
personally or faxed during normal business hours of the recipient, or three days
after deposit in the U.S. Mail, postage prepaid, if mailed by registered or
certified mail (return receipt requested) as follows:
(a) If to AMP, to:
American Medical Providers, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to AFC, to:
Ankle & Foot Centers of America, LLC
0000 Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
2.4 SUCCESSORS IN INTEREST. This Agreement and all the provisions hereof
shall be binding upon, and inure to the benefit of, the successors and assigns
of the parties.
2.5 GOVERNING LAW. This instrument shall be interpreted, construed and
governed according to the laws of the State of Texas.
2.6 COUNTERPARTS. This instrument may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be but one and the same instrument.
2.7 FINAL AGREEMENT THIS INSTRUMENT EMBODIES THE FINAL, ENTIRE AGREEMENT
OF AMP AND AFC WITH RESPECT TO AMP'S REIMBURSEMENT AND ASSUMPTION OF THE ITEMS
LISTED IN SCHEDULE A ATTACHED HERETO AND SUPERSEDES ANY AND ALL PRIOR
COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR
ORAL, RELATING TO THE SUBJECT MATTER HEREOF. THIS AGREEMENT IS
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INTENDED BY AMP AND AFC AS A FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THIS
AGREEMENT, AND NO COURSE OF DEALING BETWEEN AMP AND AFC, NO COURSE OF
PERFORMANCE, NO TRADE PRACTICES, AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY
NATURE SHALL BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS
INSTRUMENT. THERE ARE NO ORAL AGREEMENTS BETWEEN AMP AND AFC.
2.8 OBLIGATIONS ABSOLUTE. AMP hereby agrees that its obligations under
this Agreement shall not be released, discharged, diminished, impaired, reduced,
or affected for any reason or by the occurrence of any event, including, without
limitation, one or more of the following events, whether or not with notice to
or the consent of AMP: (a) the taking or accepting of collateral as security for
any or all of the obligations listed in Schedule A or the release, surrender,
exchange, or subordination of any collateral now or hereafter securing any or
all of the obligations listed in Schedule A; (b) any partial release of the
liability of AMP hereunder, or the full or partial release of any other obligor
or guarantor from liability for any or all of the obligations listed in Schedule
A; (c) any disability of AFC, or the dissolution, insolvency, or bankruptcy of
AFC, AMP, or any other party at any time liable for the payment of any or all of
the obligations listed in Schedule A; (d) any renewal, extension, modification,
waiver, amendment, or rearrangement of any or all of the obligations listed in
Schedule A or any instrument, document, or agreement evidencing, securing, or
otherwise relating to any or all of the obligations listed in Schedule A; (e)
any adjustment, indulgence, forbearance, waiver, or compromise that may be
granted or given by AFC to AMP, or any other party ever liable for any or all of
the obligations listed in Schedule A; (f) any neglect, delay, omission, failure,
or refusal of any party to take or prosecute any action for the collection of
any of the obligations listed in Schedule A or the foreclose or take or
prosecute any action in connection with any instrument, document, or agreement
evidencing, securing, or otherwise relating to any or all of the obligations
listed in Schedule A; (g) the unenforceability or invalidity of any or all of
the obligations listed in Schedule A or of any instrument, document, or
agreement evidencing, securing, or otherwise relating to any or all of the
obligations listed in Schedule A; (h) any payment of AFC or any other party to
any party is held to constitute a preference under applicable bankruptcy or
insolvency law or if for any other reason any party is required to refund any
payment or pay the amount thereof to someone else; (i) the settlement or
compromise of any of the obligations listed in Schedule A; (j) the
non-perfection of any security interest or lien securing any or all of the
obligations listed in Schedule A; (k) any impairment of any collateral security
any or all of the obligations listed in Schedule A; (l) the failure of any party
to sell any collateral securing any or all of the obligations listed in Schedule
A in a commercially reasonable manner or as otherwise required by law; (m) any
change in the corporate existence, structure, or ownership of AFC; or (n) any
other circumstance which might otherwise constitute a defense available to, or
discharge of AFC or AMP.
2.9 REPRESENTATIONS AND WARRANTIES. AMP represents and warrants as
follows:
(a) AMP is a corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation, is qualified to do
business in all jurisdictions in which the nature of the business conducted by
it makes such qualification necessary and where failure to so qualify would have
a material adverse effect on its business, financial condition or operations.
(b) AMP has the corporate power and authority an legal right to execute,
deliver, and perform its obligations under this Agreement and this Agreement
constitutes the legal, valid, and binding obligation of AMP, enforceable against
AMP in accordance with its respective terms, except as limited by bankruptcy,
insolvency, or other laws of general application relating to the enforcement of
creditor's rights.
(c) The execution, delivery, and performance by AMP of this Agreement has
been duly authorized by all requisite action on the part of AMP and do not and
will not violate or conflict with the articles of incorporation or bylaws of AMP
or any law, rule, or regulation or any order, writ, injunction or decree of any
court, governmental authority or agency, or arbitrator and do not and will not
conflict with, result in a breach of, or constitute a default under, or result
in the imposition of any lien upon any assets of AMP
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pursuant to the provisions of any indenture, mortgage, deed of trust, security
agreement, franchise, permit, license, or other instrument or agreement to which
AMP or its properties is bound.
(d) No authorization, approval, or consent of, and no filing or
registration with, any court, governmental authority, or third party is
necessary for the execution, delivery or performance by AMP of this Agreement or
the validity or enforceability thereof.
(e) The value of the consideration received and to be received by AFC as a
result of AMP incurring the obligations listed in Schedule A and AMP executing
and delivering this Agreement is reasonably worth at least as much as the
liability and obligation of AMP hereunder, and such liability and obligation
have benefited and may reasonably be expected to benefit AMP directly or
indirectly.
(f) AMP has, independently and without reliance upon any other party and
based upon such documents and information as AMP has deemed appropriate, made
its own analysis and decision to enter into this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of January
20, 1998.
AMERICAN MEDICAL PROVIDERS, INC.
a Delaware corporation
By:/s/ XXXX X. XXXXXXX
XXXX X. XXXXXXX, CHAIRMAN, PRESIDENT
AND CHIEF EXECUTIVE OFFICER
ANKLE AND FOOT CENTERS OF
AMERICA LLP, a Delaware corporation
By:/s/ XXXX X. XXXXXXX
XXXX X. XXXXXXX, MANAGING DIRECTOR
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SCHEDULE A
REIMBURSEMENT AND ASSUMPTION AGREEMENT
BETWEEN
AMERICAN MEDICAL PROVIDERS, INC. ("AMP")
AND
ANKLE AND FOOT CENTERS OF AMERICA, LLC. ("AFC")
1. REIMBURSEMENT FOR EXPENSES.
All organizational, developmental, and related expenses expended or
incurred, paid or accrued by AFC in connection with the formation, organization,
acquisition activities, and initial public offering of AMP, including but not
limited to the purchase of furnishings, fixtures, or equipment, salaries, wages,
benefits of AFC employees, consulting expenses, lease and rental expenses,
supply expenses, travel and entertainment expenses, interest on borrowed funds,
accounting, legal, and professional fees, information and technology expenses
(software and hardware), printing, design and production fees.
2. ASSUMPTION OF CERTAIN DEBTS
All debts, financing, borrowings, loans, and obligations (together with any
interest thereon) relating to, or incurred by AFC in connection with, the
formation, organization, acquisition activities and initial public offering of
AMP, including, but not limited to such amounts as are owed to the Founder,
Organizers, the Seed Capital Investors, interim lenders, the bridge loan
investors, suppliers, vendors, providers of legal, accounting and professional
services information and technology consultants and other contractors related to
any of the foregoing. Notwithstanding the above, the PRINCIPAL amount of the
borrowing from the Seed Capital Investors, the interim lender, and the bridge
loans have been expended by AFC and will be reimbursed under Section 1 above
(collectively such principal amounts of the Seed Capital borrowing, the
borrowing from the interim lender and the bridge loan borrowing are referred to
as the "Principal Borrowings") and it is not the intention of this agreement
to have these Principal Borrowings reimbursed twice to AFC. However, the
interest and other agreements relating to the Principal Borrowings and the
interest (or investment returns) arising from the Principal Borrowings which
have not yet been paid or accrued under Section 1 will be assumed or otherwise
paid by AMP under this Section 2.
3. CONTRACTS, OBLIGATIONS AND AGREEMENTS.
All contracts, obligations and agreements of AFC relating to or in
connection with the formation, organization, acquisition activities and initial
public offering, including employment agreements with AFC's officers, directors,
consultants, suppliers, lease, and rental agreements acquisition agreements,
seed capital investment agreements, interim lender agreements, bridge loan
investor agreements, professional, legal and accounting agreements, and printing
and design agreements, communication, information and technology agreements or
any other such agreement related to any of the foregoing.
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