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EXHIBIT 10.02
Security Agreement
SECURITY AGREEMENT dated as of July 21, 1998, among CORAM, INC., a
Delaware corporation, as borrower (the "Borrower"), each Guarantor (as defined
in the Notes, as defined herein) listed on the signature pages hereto (the
Borrower and the Guarantors being referred to herein collectively as the
"Grantors"), and FOOTHILL CAPITAL CORPORATION, as collateral agent (in such
capacity, the "Agent") for the Lenders (as defined herein). Capitalized terms
used herein and not defined shall have the meanings given to such terms in the
Notes.
As security for the payment or performance, as the case may be, of the
Obligations, each of the Grantors hereby grants to the Agent, its successors and
its assigns, for the ratable benefit of the Lenders, a continuing first priority
security interest in all such Grantor's right, title and interest in, to and
under its now and hereafter existing Accounts and Accounts Receivable together
with all Proceeds and products thereof (the "Collateral"). Without limiting the
foregoing, the Agent is hereby authorized to file one or more financing
statements, continuation statements, or other documents for the purpose of
perfecting, confirming, continuing, enforcing or protecting the security
interest granted by each Grantor, without the signature of any Grantor, naming
any Grantor or the Grantors as debtors and the Agent as secured party.
If there shall occur and be continuing an Event of Default under any of
the Notes or otherwise on demand, the Agent shall have all the rights available
to a "secured party" under the Uniform Commercial Code (as the same may be in
effect in the State of New York).
In this Security Agreement, the following defined terms shall have the
following meanings:
"Accounts" shall mean, with respect to the Grantors, any and all right,
title and interest of any Grantor to payment for goods and services sold or
leased (exclusive of any liabilities of the Grantors with respect thereto),
including any such right evidenced by chattel paper, whether due or to become
due, whether or not it has been earned by performance, and whether now or
hereafter acquired or arising in the future.
"Accounts Receivable" shall mean, with respect to the Grantors, all
right, title and interest of any Grantor to Accounts and all of any Grantor's
right, title and interest in any returned goods, together with all rights,
titles, securities and
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EXHIBIT 10.02
guaranties with respect thereto, including any rights to stoppage in transit,
replevin, reclamation and resales, and all related security interests, liens and
pledges, whether voluntary or involuntary, in each case whether due or to become
due, whether now or hereafter arising.
"Lenders" shall mean each of Cerberus Partners, L.P., Xxxxxxx Xxxxx
Credit Partners L.P. and Foothill Partners III, L.P. and their respective
successors and assigns.
"Notes" shall mean the secured promissory notes dated July 21, 1998
and made by the Borrower in favor of (i) Cerberus Partners, L.P., in the
principal amount of $2,147,760, (ii) Xxxxxxx Sachs Credit Partners L.P., in the
principal amount of $2,727,120 and (iii) Foothill Partners III, L.P., in the
principal amount of $1,125,120, and includes any replacement or additional
promissory notes made by the Borrower in substitution therefor.
"Obligations" shall mean the due and punctual payment of (i) the
principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Notes, when and as due, whether at maturity, by acceleration or otherwise,
(ii) all other monetary obligations, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), of the Guarantors to the Lenders under
the Notes, and (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of Borrower and each Guarantor pursuant
to or arising out of the Notes and Guarantees and this Security Agreement.
"Proceeds" shall have the meaning given to such term in the Uniform
Commercial Code as in effect in the State of New York.
This Security Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be wholly performed in such State and without giving
effect to the conflict of laws principles thereof.
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IN WITNESS WHEREOF, each Grantor has caused this Security Agreement
to be duly executed as of the date first above written.
CORAM, INC.
By: /s/ XXXXX X. XXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
CORAM HEALTHCARE
CORPORATION
By: /s/ XXXXX X. XXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
CORAM ALTERNATE SITE SERVICES,
INC.
By: /s/ XXXXX X. XXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
CORAM HOMECARE OF MINNESOTA,
INC.
By: /s/ XXXXX X. XXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
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CORAM HEALTHCARE
CORPORATION OF FLORIDA
By: /s/ XXXXX X. XXXXXXX
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
CORAM HEALTHCARE
CORPORATION OF GREATER NEW
YORK
By: /s/ XXXXX X. XXXXXXX
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
CORAM HEALTHCARE
CORPORATION OF
MASSACHUSETTS
By: /s/ XXXXX X. XXXXXXX
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
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SECURED PROMISSORY NOTE
$2,727,120 July 21, 1998
Subject to the terms and conditions of this Note (this "Note"), CORAM,
INC., a Delaware corporation ("Borrower"), for value received, the receipt and
sufficiency of which is hereby acknowledged, hereby promises to pay to the order
Of XXXXXXX XXXXX CREDIT PARTNERS L.P., or its assigns ("Lender"), in lawful
money of the United States of America in immediately available funds, the
principal sum of Two Million Seven Hundred Twenty-Seven Thousand One Hundred
Twenty Dollars ($2,727,120) on August 20, 1998 (the "Maturity Date") together
with interest thereon at the rate provided for herein. This Note is one of the
promissory notes dated the date hereof and made by Borrower in favor of the
Lenders (as defined below).
1. Interest. From the date hereof through the Maturity Date and until
paid in full, interest on the unpaid principal amount of this Note shall accrue
at an annual rate equal to twelve percent (12%) per annum; provided, however,
that during the continuance of any Event of Default, the unpaid principal amount
of this Note and any unpaid interest shall accrue interest at such rate plus two
cent (2%) per annum. All interest shall be calculated on the basis of a three
hundred sixty (360) day year and the actual number of days elapsed (including
the first day but excluding the last day) in the period for which interest is
payable and shall be payable in cash on the Maturity Date.
2. Events of Default. This Note and all accrued and unpaid interest
hereon shall become immediately due and payable if any one or more of the events
(each an "Event of Default") set forth in Section 8.1 of the Securities Exchange
Agreement dated as of May 6, 1998, as amended (the "Securities Exchange
Agreement"), among the Borrower, Coram Healthcare Corporation ("Parent"), and
Cerberus Partners, L.P., Xxxxxxx Xxxxx Credit Partners L.P. and Foothill Capital
Corporation, shall occur and be continuing with respect to this Note.
If there shall occur and be continuing an Event of Default, Lender may,
by notice to Borrower, declare the principal under this Note and all interest
thereon payable, whereupon all principal under this Note and all such interest
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by Borrower; provided, however, that upon the occurrence of the Event of Default
specified in subparagraph 8.1(g) or (h) of the Securities Exchange Agreement,
the principal under this Note and all such interest shall automatically become
and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are
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hereby expressly waived by Borrower. In addition to the remedies set forth
above, Lender may exercise any remedies provided by applicable law.
3. Prepayment. Borrower may prepay without premium or penalty all or
any portion of the outstanding principal amount of this Note together with
accrued and unpaid interest to such date Of prepayment on such amount so
prepaid.
4. Waiver. No failure or delay on the part of Lender or any holder in
exercising any right, power or privilege hereunder and no course of dealing
between Borrower, Lender or any holder shall operate as a waiver thereof nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude any other exercise thereof or the exercise of any other right, power,
or privilege. The rights and remedies herein expressly provided are cumulative
and not exclusive of any rights or remedies which a holder would otherwise have.
5. Guarantee; Security Agreement. This Note is guaranteed by the
Guarantors which have executed the guarantee (the "Guarantee") attached hereto
as Annex A and is secured by the Collateral (as defined in the Security
Agreement dated the date hereof entered into by the Borrower and the Guarantors
in favor of the Agent, for the ratable benefit of the Lenders) (as such terms
are defined therein).
6. Presentment and Demand. Borrower hereby waives presentment and
demand for payment, notice of dishonor, protest and notice of protest of this
Note and further waives the right to interpose any setoff, counterclaim or
cross-claim.
7. Amendment; Assignment. This Note may not be amended except by an
agreement in writing signed by Borrower and Lender or other holder hereof.
8. Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by another, or whenever any of the parties desires to give or serve upon
another any communication with respect to this Note, each such notice, demand,
request, consent, approval, declaration or other communication shall be in
writing and either shall be delivered in person with receipt acknowledged,
telecopied or sent by registered or certified mail, return receipt requested,
postage prepaid, to the address of Borrower or Lender set forth in Section 11.10
of the Securities Exchange Agreement, or at such other address as may be
substituted by notice given as herein provided. The giving of any notice
required hereunder may be waived in writing by the party entitled to receive
such notice. Every notice, demand, request, consent, approval, declaration or
other communication hereunder shall be deemed to have been duly given or served
on
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the date on which personally delivered, with receipt acknowledged or
telecopied, or three (3) Business Days after the same shall have been deposited
in the United States mail.
9. Submission to Jurisdiction. (a) Borrower hereby irrevocably
submits to the jurisdiction of any New York State or Federal court sitting in
New York City, and the undersigned hereby irrevocably agree that any action may
be heard and determined in such New York State court or in such Federal court.
Borrower hereby irrevocably waives, to the fullest extent he may effectively do
so, the defense of an inconvenient forum to the maintenance of any action in any
jurisdiction. Borrower hereby irrevocably agrees that the summons and complaint
or any other process in any action in any jurisdiction may be served by mailing
in accordance with the provision set forth in Section 8. Borrower may also be
served in any other manner permitted by law, in which event Borrower's time to
respond shall be the time provided by law.
(b) Each of Borrower and Lender hereby irrevocably waive all right
to trial by jury in any action, proceeding or counterclaim arising out of or
relating to any obligations under this Note.
10. Governing Law. This Note shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be wholly performed in such State and without giving
effect to the conflict of laws principles thereof.
11. Fees and Expenses. Borrower shall pay on demand all reasonable
out-of-pocket expenses of Lender in connection with the preparation of the Note
and related documents (including the reasonable fees and expenses of its
counsel retained in connection with the Note and the transactions contemplated
thereby and advice in connection therewith) and in connection with any attempt
to enforce any rights of Lender against Borrower (including the reasonable fees
and expenses of all of its counsel and advisors retained in connection
therewith).
IN WITNESS WHEREOF, Borrower has caused this Promissory Note to be
duly executed as of the date first above written.
CORAM, INC.
By: /s/ XXXXX X. XXXXXXX
------------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
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ANNEX A
Guarantee
Each Guarantor unconditionally guarantees, as a primary obligor and not
merely as a surety, jointly and severally with each other Guarantor, (a) the due
and punctual payment of (i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on this Note, when and as due, whether at
maturity, by acceleration or otherwise, (ii) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
the Guarantors to the Lender under this Note, and (b) the due and punctual
performance of all covenants, agreements, obligations and liabilities of
Borrower and each Guarantor pursuant to or arising out of this Note and
Guarantee and the Security Agreement referred to in the Note (the
"Obligations"). Each Guarantor further agrees that the obligations may be
extended and renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee notwithstanding any
extension or renewal of any Obligations.
Each Guarantor waives presentment to, demand of payment from and
protest to the Borrower of any of the Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment. The
obligations of a Guarantor hereunder shall not be affected by (a) the failure of
the Lender or any holder to assert any claim or demand or to enforce any right
or remedy against the Borrower or any other Guarantor under provisions of this
Note or otherwise; (b) any rescission, waiver, amendment or modification of any
of the terms or provisions of the Note, any guarantee or any other agreement;
(c) the release of any security held by the Agent (as defined in the Security
Agreement) for the Obligations or any of them; or (d) the failure of the Lender
or any holder to exercise any right or remedy against any other Guarantor of the
Obligations.
Each Guarantor further agrees that its guarantee constitutes a
guarantee of payment when due and not of collection, and waives any right to
require that any resort be had by Lender to any security (including, without
limitation, any Collateral, as defined in the Security Agreement) held for
payment of the Obligations or to any balance of any deposit account or credit on
the books of the Lender or any holder in favor of the Borrower or any other
person.
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The obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including,
without limitation, any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Guarantor hereunder shall
not be discharged or impaired or otherwise affected by the failure of the Agent,
the Lender or any holder to assert any claim or demand or to enforce any remedy
under this Note, any guarantee or any other agreement, by any waiver or
modification of any provision thereof, by any default, failure or delay, willful
or otherwise, in the performance of the Obligations, or by any other act or
omission which may or might in any manner or to any extent vary the risk of such
Guarantor or otherwise operate as a discharge of such Guarantor as a matter of
law or equity.
Each Guarantor further agrees that its guarantee shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of principal of or interest on any Obligation is rescinded or must
otherwise be returned by the Agent or Lender upon the bankruptcy or
reorganization of the Borrower or otherwise.
Each Guarantor hereby subordinates until all Obligations have been
indefeasibly paid in cash all rights of subrogation against the Borrower and
its property and all rights of indemnification, contribution and reimbursement
from the Borrower and its property, in each case in connection with this
Guarantee and any payments made hereunder, and regardless of whether such rights
arise by operation of law, pursuant to contract or otherwise.
To the extent that any Guarantor shall make a payment of all or any of
the Obligations (a "Guarantor Payment") which, taking into account all other
Guarantor Payments then previously or concurrently made by the other Guarantors,
exceeds the amount which such Guarantor would otherwise have paid if each
Guarantor had paid the aggregate Obligations satisfied by such Guarantor Payment
in the same proportion as such Guarantor's "Allocable Amount" (as defined below)
(in effect immediately prior to such Guarantor Payment), then, following
indefeasible payment in full in cash of the Obligations, such Guarantor shall be
entitled to receive contribution and indemnification payments from, and be
reimbursed by, each of the other Guarantors for the amount of such excess pro
rata based upon their respective Allocable Amounts in effect immediately prior
to such Guarantor Payment.
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As of any date of determination, the "Allocable Amount" of any Guarantor
shall be equal to the maximum amount of the claim which could then be recovered
from such Guarantor hereunder without rendering such claim voidable or
avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any
applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance
Act or similar statute or common law.
The preceding two paragraphs are intended only to define the relative
rights of the Guarantors and nothing therein is intended to or shall impair the
obligations of the Guarantors, jointly and severally, to pay any amounts as and
when the same shall become due and payable in accordance with the terms of the
Note and this Guarantee.
Notwithstanding any provision herein to the contrary, each Guarantor's
liability hereunder shall be limited to an amount not to exceed as of any date
of determination the amount which could be claimed by the Lender from such
Guarantor hereunder without rendering such claim voidable or avoidable under
Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state
Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar
statute or common law after taking into account, among other things, such
Guarantor's right of contribution and indemnification from each other Guarantor.
Dated: July 21, 1998
CORAM HEALTHCARE
CORPORATION
By: /s/ XXXXX X. XXXXXXX
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
CORAM ALTERNATE SITE SERVICES,
INC.
By: /s/ XXXXX X. XXXXXXX
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
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CORAM HOMECARE OF MINNESOTA,
INC.
By: /s/ XXXXX X. XXXXXXX
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
CORAM HEALTHCARE
CORPORATION OF FLORIDA
By: /s/ XXXXX X. XXXXXXX
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
CORAM HEALTHCARE
CORPORATION OF GREATER NEW
YORK
By: /s/ XXXXX X. XXXXXXX
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
CORAM HEALTHCARE
CORPORATION OF
MASSACHUSETTS
By: /s/ XXXXX X. XXXXXXX
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
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SECURED PROMISSORY NOTE
$2,147,760 July 21, 1998
Subject to the terms and conditions of this Note (this "Note"), CORAM,
INC., a Delaware corporation ("Borrower"), for value received, the receipt and
sufficiency of which is hereby acknowledged, hereby promises to pay to the order
of CERBERUS PARTNERS, L.P., or its assigns ("Lender"), in lawful money of the
United States of America in immediately available funds, the principal sum of
Two Million One Hundred Forty-Seven Thousand Seven Hundred Sixty Dollars
($2,147,760) on August 20, 1998 (the "Maturity Date") together with interest
thereon at the rate provided for herein. This Note is one of the promissory
notes dated the date hereof and made by Borrower in favor of the Lenders (as
defined below).
1. Interest. From the date hereof through the Maturity Date and until
paid in full, interest on the unpaid principal amount of this Note shall accrue
at an annual rate equal to twelve percent (12%) per annum; provided, however,
that during the continuance of any Event of Default, the unpaid principal amount
of this Note and any unpaid interest shall accrue interest at such rate plus two
percent (2%) per annum. All interest shall be calculated on the basis of a
three hundred sixty (360) day year and the actual number of days elapsed
(including the first day but excluding the last day) in the period for which
interest is payable and shall be payable in cash on the Maturity Date.
2. Events of Default. This Note and all accrued and unpaid interest
hereon shall become immediately due and payable if any one or more of the events
(each an "Event of Default") set forth in Section 8.1 of the Securities Exchange
Agreement dated as of May 6, 1998, as amended (the "Securities Exchange
Agreement"), among the Borrower, Coram Healthcare Corporation ("Parent"), and
Cerberus Partners, L.P., Xxxxxxx Xxxxx Credit Partners L.P. and Foothill Capital
Corporation, shall occur and be continuing with respect to this Note.
If there shall occur and be continuing an Event of Default, Lender may,
by notice to Borrower, declare the principal under this Note and all interest
thereon payable, whereupon all principal under this Note and all such interest
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by Borrower; provided, however, that upon the occurrence of the Event of Default
specified in subparagraph 8.1(g) or (h) of the Securities Exchange Agreement,
the principal under this Note and all such interest shall automatically become
and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by Borrower. In addition to
the remedies set forth above, Lender may exercise any remedies provided by
applicable law.
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3. Prepayment. Borrower may prepay without premium or penalty all or
any portion of the outstanding principal amount of this Note together with
accrued and unpaid interest to such date of prepayment on such amount so
prepaid.
4. Waiver. No failure or delay on the part of Lender or any holder in
exercising any right, power or privilege hereunder and no course of dealing
between Borrower, Lender or any holder shall operate as a waiver thereof nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude any other exercise thereof or the exercise of any other right, power,
or privilege. The rights and remedies herein expressly provided are cumulative
and not exclusive of any rights or remedies which a holder would otherwise have.
5. Guarantee; Security Agreement. This Note is guaranteed by the
Guarantors which have executed the guarantee (the "Guarantee") attached hereto
as Annex A and is secured by the Collateral (as defined in the Security
Agreement dated the date hereof entered into by the Borrower and the Guarantors
in favor of the Agent, for the ratable benefit of the Lenders) (as such terms
are defined therein).
6. Presentment and Demand. Borrower hereby waives presentment and
demand for payment, notice of dishonor, protest and notice of protest of this
Note and further waives the right to interpose any setoff, counterclaim or
cross-claim.
7. Amendment; Assignment. This Note may not be amended except by an
agreement in writing signed by Borrower and Lender or other holder hereof.
8. Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by another, or whenever any of the parties desires to give or serve upon
another any communication with respect to this Note, each such notice, demand,
request, consent, approval, declaration or other communication shall be
in writing and either shall be delivered in person with receipt acknowledged,
telecopied or sent by registered or certified mail, return receipt requested,
postage prepaid, to the address of Borrower or Lender set forth in Section 11.10
of the Securities Exchange Agreement, or at such other address as may be
substituted by notice given as herein provided. The giving of any notice
required hereunder may be waived in writing by the party entitled to receive
such notice. Every notice, demand, request, consent, approval, declaration or
other communication hereunder shall be deemed to have been duly given or served
on the date on which personally delivered, with receipt acknowledged or
telecopied, or three (3) Business Days after the same shall have been deposited
in the United States mail.
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9. Submission to Jurisdiction. (a) Borrower hereby irrevocably
submits to the jurisdiction of any New York State or Federal court sitting in
New York City, and the undersigned hereby irrevocably agrees that any action
may be heard and determined in such New York State court or in such Federal
court, Borrower hereby irrevocably waives, to the fullest extent he may
effectively do so, the defense of an inconvenient forum to the maintenance of
any action in any jurisdiction. Borrower hereby irrevocably agrees that the
summons and complaint or any other process in any action in any jurisdiction
may be served by mailing in accordance with the provisions set forth in Section
8. Borrower may also be served in any other manner permitted by law, in which
event Borrower's time to respond shall be the time provided by law.
(b) Each of Borrower and Lender hereby irrevocably waive all
right to trial by jury in any action, proceeding or counterclaim arising out of
or relating to any obligations under this Note.
10. Governing Law. This Note shall be governed by and construed
and enforced in accordance with the laws of the State of New York applicable to
agreements made and to be wholly performed in such State and without giving
effect to the conflict of laws principles thereof.
11. Fees and Expenses. Borrower shall pay on demand all
reasonable out-of-pocket expenses of Lender in connection with the preparation
of the Note and related documents (including the reasonable fees and expenses
of its counsel retained in connection with the Note and the transactions
contemplated thereby and advice in connection therewith) and in connection with
any attempts to enforce any rights of Lender against Borrower (including the
reasonable fees and expenses of all of its counsel and advisors retained in
connection therewith).
IN WITNESS WHEREOF, Borrower has caused this Promissory Note to
be duly executed as of the date first above written.
CORAM, INC.
By: /s/ XXXXX X. XXXXXXX
------------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
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ANNEX A
Guarantee
Each Guarantor unconditionally guarantees, as a primary obligor and not
merely as a surety, jointly and severally with each other Guarantor, (a) the due
and punctual payment of (i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on this Note, when and as due, whether at
maturity, by acceleration or otherwise, (ii) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other
similar proceeding, regardless of whether allowed or allowable in such
proceeding), of the Guarantors to the Lender under this Note, and (b) the due
and punctual performance of all covenants, agreements, obligations and
liabilities of Borrower and each Guarantor pursuant to or arising out of this
Note and Guarantee and the Security Agreement referred to in the Note (the
"Obligations"). Each Guarantor further agrees that the obligations may be
extended and renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee notwithstanding any
extension or renewal of any Obligations.
Each Guarantor waives presentment to, demand of payment from and
protest to the Borrower of any of the Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment. The
obligations of a Guarantor hereunder shall not be affected by (a) the failure of
the Lender or any holder to assert any claim or demand or to enforce any right
or remedy against the Borrower or any other Guarantor under provisions of this
Note or otherwise; (b) any rescission, waiver, amendment or modification of any
of the terms or provisions of the Note, any guarantee or any other agreement;
(c) the release of any security held by the Agent (as defined in the Security
Agreement) for the Obligations or any of them; or (d) the failure of the Lender
or any holder to exercise any right or remedy against any other Guarantor of
the Obligations.
Each Guarantor further agrees that its guarantee constitutes a
guarantee of payment when due and not of collection, and waives any right to
require that any resort be had by Lender to any security (including, without
limitation, any Collateral, as defined in the Security Agreement) held for
payment of the Obligations or to any balance of any deposit account or credit on
the books of the Lender or any holder in favor of the Borrower or any other
person.
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The obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including,
without limitation, any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Guarantor hereunder shall
not be discharged or impaired or otherwise affected by the failure of the Agent,
the Lender or any holder to assert any claim or demand or to enforce any remedy
under this Note, any guarantee or any other agreement, by any waiver or
modification of any provision thereof, by any default, failure or delay, willful
or otherwise, in the performance of the Obligations, or by any other act or
omission which may or might in any manner or to any extent vary the risk of such
Guarantor or otherwise operate as a discharge of such Guarantor as a matter of
law or equity.
Each Guarantor further agrees that its guarantee shall continue to be
effective or be reinstated, as the case may be if at any time payment, or any
part thereof, of principal of or interest on any Obligation is rescinded or must
otherwise be returned by the Agent or Lender upon the bankruptcy or
reorganization of the Borrower or otherwise.
Each Guarantor hereby subordinates until all Obligations have been
indefeasibly paid in cash all rights of subrogation against the Borrower and its
property and all rights of indemnification, contribution and reimbursement from
the Borrower and its property, in each case in connection with this Guarantee
and any payments made hereunder, and regardless of whether such rights arise by
operation of law, pursuant to contract or otherwise.
To the extent that any Guarantor shall make a payment of all or any of
the Obligations (a "Guarantor Payment") which, taking into account all other
Guarantor Payments then previously or concurrently made by the other Guarantors,
exceeds the amount which such Guarantor would otherwise have paid if each
Guarantor had paid the aggregate Obligations satisfied by such Guarantor Payment
in the same proportion as such Guarantor's "Allocable Amount" (as defined below)
(in effect immediately prior to such Guarantor Payment), then, following
indefeasible payment in full in cash of the Obligations, such Guarantor shall be
entitled to receive contribution and indemnification payments from, and be
reimbursed by, each of the other Guarantors for the amount of such excess pro
rata based upon their respective Allocable Amounts in effect immediately prior
to such Guarantor Payment.
5
17
As of any date of determination, the "Allocable Amount" of any Guarantor
shall be equal to the maximum amount of the claim which could then be
recovered from such Guarantor hereunder without rendering such claim voidable
or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under
any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
The preceding two paragraphs are intended only to define the relative
rights of the Guarantors and nothing therein is intended to or shall impair the
obligations of the Guarantors, jointly and severally, to pay any amounts as and
when the same shall become due and payable in accordance with the terms of the
Note and this Guarantee.
Notwithstanding any provision herein to the contrary, each Guarantor's
liability hereunder shall be limited to an amount not to exceed as of any date
of determination the amount which could be claimed by the Lender from such
Guarantor hereunder without rendering such claim voidable or avoidable under
Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state
Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar
statute or common law after taking into account, among other things, such
Guarantor's right of contribution and indemnification from each other Guarantor.
Dated: July 21, 1998
CORAM HEALTHCARE
CORPORATION
By: /s/ XXXXX X. XXXXXXX
------------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
CORAM ALTERNATIVE SITE SERVICES,
INC.
By: /s/ XXXXX X. XXXXXXX
------------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
6
18
CORAM HOMECARE OF MINNESOTA,
INC.
By: /s/ XXXXX X. XXXXXXX
------------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
CORAM HEALTHCARE
CORPORATION OF FLORIDA
By: /s/ XXXXX X. XXXXXXX
------------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
CORAM HEALTHCARE
CORPORATION OF GREATER NEW
YORK
By: /s/ XXXXX X. XXXXXXX
------------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
CORAM HEALTHCARE
CORPORATION OF
MASSACHUSETTS
By: /s/ XXXXX X. XXXXXXX
------------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
7
19
SECURED PROMISSORY NOTE
$1,125,120 July 21, 1998
Subject to the terms and conditions of this Note (this "Note"), CORAM,
INC., a Delaware corporation ("Borrower"), for value received, the receipt and
sufficiency of which is hereby acknowledged, hereby promises to pay to the
order of FOOTHILL PARTNERS III, L.P., or its assigns ("Lender"), in lawful
money of the United States of America in immediately available funds, the
principal sum of One Million One Hundred Twenty-Five Thousand One Hundred
Twenty Dollars ($1,125,120) on August 20, 1998 (the "Maturity Date") together
with interest thereon at the rate provided for herein. This Note is one of the
promissory notes dated the date hereof and made by Borrower in favor of the
Lenders (as defined below).
1. Interest. From the date hereof through the Maturity Date and until
paid in full, interest on the unpaid principal amount of this Note shall accrue
at an annual rate equal to twelve percent (12%) per annum; provided, however,
that during the continuance of any Event of Default, the unpaid principal
amount of this Note and any unpaid interest shall accrue interest at such rate
plus two percent (2%) per annum. All interest shall be calculated on the basis
of a three hundred sixty (360) day year and the actual number of days elapsed
(including the first day but excluding the last day) in the period for which
interest is payable and shall be payable in cash on the Maturity Date.
2. Events of Default. This Note and all accrued and unpaid interest
hereon shall become immediately due and payable if any one or more of the events
(each an "Event of Default") set forth in Section 8.1 of the Securities
Exchange Agreement dated as of May 6, 1998, as amended (the "Securities Exchange
Agreement"), among the Borrower, Coram Healthcare Corporation ("Parent"), and
Cerberus Partners, L.P., Xxxxxxx Xxxxx Credit Partners L.P. and Foothill Capital
Corporation, shall occur and be continuing with respect to this Note.
If there shall occur and be continuing an Event of Default, Lender may,
by notice to Borrower, declare the principal under this Note and all interest
thereon payable, whereupon all principal under this Note and all such interest
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by Borrower; provided, however, that upon the occurrence of the Event of Default
specified in subparagraph 8.1(g) or (h) of the Securities Exchange Agreement,
the principal under this Note and all such interest shall automatically become
and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by Borrower. In
addition to the remedies set forth above, Lender may exercise any remedies
provided by applicable law.
20
3. Prepayment. Borrower may prepay without premium or penalty all or
any portion of the outstanding principal amount of this Note together with
accrued and unpaid interest to such date of prepayment on such amount so
prepaid.
4. Waiver. No failure or delay on the part of Lender or any holder in
exercising any right, power or privilege hereunder and no course of dealing
between Borrower, Lender or any holder shall operate as a waiver thereof nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude any other exercise thereof or the exercise of any other right, power,
or privilege. The rights and remedies herein expressly provided are cumulative
and not exclusive of any rights or remedies which a holder would otherwise
have.
5. Guarantee; Security Agreement. This Note is guaranteed by the
Guarantors which have executed the guarantee (the "Guarantee") attached hereto
as Annex A and is secured by the Collateral (as defined in the Security
Agreement dated the date hereof entered into by the Borrower and the Guarantors
in favor of the Agent, for the ratable benefit of the Lenders) (as such terms
are defined therein).
6. Presentment and Demand. Borrower hereby waives presentment and
demand for payment, notice of dishonor, protest and notice of protest of this
Note and further waives the right to interpose any setoff, counterclaim or
cross-claim.
7. Amendment; Assignment. This Note may not be amended except by an
agreement in writing signed by Borrower and Lender or other holder hereof.
8. Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by another, or whenever any of the parties desires to give or serve upon
another any communication with respect to this Note, each such notice, demand,
request, consent, approval, declaration or other communication shall be in
writing and either shall be delivered in person with receipt acknowledged,
telecopied or sent by registered or certified mail, return receipt requested,
postage prepaid, to the address of Borrower or Lender set forth in Section 11.10
of the Securities Exchange Agreement, or at such other address as may be
substituted by notice given as herein provided. The giving of any notice
required hereunder may be waived in writing by the party entitled to receive
such notice. Every notice, demand, request, consent, approval, declaration or
other communication hereunder shall be deemed to have been duly given or served
on the date on which personally delivered, with receipt acknowledged or
telecopied, or three (3) Business Days after the same shall have been deposited
in the United States mail.
2
21
9. Submission to Jurisdiction. (a) Borrower hereby irrevocably
submits to the jurisdiction of any New York State or Federal court sitting in
New York City, and the undersigned herby irrevocably agrees that any action may
be heard and determined in such New York State court or in such Federal court.
Borrower hereby irrevocably waives, to the fullest extent he may effectively do
so, the defense of an inconvenient forum to the maintenance of any action in any
jurisdiction. Borrower hereby irrevocably agrees that the summons and complaint
or any other process in any action in any jurisdiction may be served by mailing
in accordance with the provision set forth in Section 8. Borrower may also be
served in any other manner permitted by law, in which event Borrower's time to
respond shall be the time provided by law.
(b) Each of Borrower and Lender hereby irrevocably waive all
right to trial by jury in any action, proceeding or counterclaim arising out of
or relating to any obligations under this Note.
10. Governing Law. This Note shall be governed by and construed
and enforced in accordance with the laws of the State of New York applicable to
agreements made and to be wholly performed in such State and without giving
effect to the conflict of laws principles thereof.
11. Fees and Expenses. Borrower shall pay on demand all
reasonable out-of-pocket expenses of Lender in connection with the preparation
of the Note and related documents (including the reasonable fees and expenses of
its counsel retained in connection with the Note and the transactions
contemplated thereby and advice in connection therewith) and in connection with
any attempt to enforce any rights of Lender against Borrower (including the
reasonable fees and expenses of all of its counsel and advisors retained in
connection therewith).
IN WITNESS WHEREOF, Borrower has caused this Promissory Note to
be duly executed as of the date first above written.
CORAM, INC.
By: /s/ XXXXX X. XXXXXXX
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
3
22
ANNEX A
Guarantee
Each Guarantor unconditionally guarantees, as a primary obligor and not
merely as a surety, jointly and severally with each other Guarantor, (a) the due
and punctual payment of (i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on this Note, when and as due, whether at
maturity, by acceleration or otherwise, (ii) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
the Guarantors to the Lender under this Note, and (b) the due and punctual
performance of all covenants, agreements, obligations and liabilities of
Borrower and each Guarantor pursuant to or arising out of this Note and
Guarantee and the Security Agreement referred to in the Note (the
"Obligations"). Each Guarantor further agrees that the obligations may be
extended and renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee notwithstanding any
extension or renewal of any Obligations.
Each Guarantor waives presentment to, demand of payment from and
protest to the Borrower of any of the Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment. The
obligations of a Guarantor hereunder shall not be affected by (a) the failure of
the Lender or any holder to assert any claim or demand or to enforce any right
or remedy against the Borrower or any other Guarantor under provisions of this
Note or otherwise; (b) any rescission, waiver, amendment or modification of any
of the terms or provisions of the Note, any guarantee or any other agreement;
(c) the release of any security held by the Agent (as defined in the Security
Agreement) for the Obligations or any of them; or (d) the failure of the Lender
or any holder to exercise any right or remedy against any other Guarantor of the
Obligations.
Each Guarantor further agrees that its guarantee constitutes a
guarantee of payment when due and not of collection, and waives any right to
require that any resort be had by Lender to any security (including, without
limitation, any Collateral, as defined in the Security Agreement) held for
payment of the Obligations or to any balance of any deposit account or credit on
the books of the Lender or any holder in favor of the Borrower or any other
person.
4
23
The obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including,
without limitation, any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Guarantor hereunder shall
not be discharged or impaired or otherwise affected by the failure of the Agent,
the Lender or any holder to assert any claim or demand or to enforce any remedy
under this Note, any guarantee or any other agreement, by any waiver or
modification of any provision thereof, by any default, failure or delay, willful
or otherwise, in the performance of the Obligations, or by any other act or
omission which may or might in any manner or to any extent vary the risk of such
Guarantor or otherwise operate as a discharge of such Guarantor as a matter of
law or equity.
Each Guarantor further agrees that its guarantee shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of principal of or interest on any Obligation is rescinded or must
otherwise be returned by the Agent or Lender upon the bankruptcy or
reorganization of the Borrower or otherwise.
Each Guarantor hereby subordinates until all Obligations have been
indefeasibly paid in cash all rights of subrogation against the Borrower and its
property and all rights of indemnification, contribution and reimbursement from
the Borrower and its property, in each case in connection with this Guarantee
and any payments made hereunder, and regardless of whether such rights arise by
operation of law, pursuant to contract or otherwise.
To the extent that any Guarantor shall make a payment of all or any of
the Obligations (a "Guarantor Payment") which, taking into account all other
Guarantor Payments then previously or concurrently made by the other Guarantors,
exceeds the amount which such Guarantor would otherwise have paid if each
Guarantor had paid the aggregate Obligations satisfied by such Guarantor Payment
in the same proportion as such Guarantor's "Allocable Amount" (as defined below)
(in effect immediately prior to such Guarantor Payment), then, following
indefeasible payment in full in cash of the Obligations, such Guarantor shall be
entitled to receive contribution and indemnification payments from, and be
reimbursed by, each of the other Guarantors for the amount of such excess pro
rata based upon their respective Allocable Amounts in effect immediately prior
to such Guarantor Payment.
5
24
As of any date of determination, the "Allocable Amount" of any Guarantor
shall be equal to the maximum amount of the claim which could then be
recovered from such Guarantor hereunder without rendering such claim voidable
or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under
any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
The preceding two paragraphs are intended only to define the relative
rights of the Guarantors and nothing therein is intended to or shall impair the
obligations of the Guarantors, jointly and severally, to pay any amounts as and
when the same shall become due and payable in accordance with the terms of the
Note and this Guarantee.
Notwithstanding any provision herein to the contrary, each Guarantor's
liability hereunder shall be limited to an amount not to exceed as of any date
of determination the amount which could be claimed by the Lender from such
Guarantor hereunder without rendering such claim voidable or avoidable under
Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state
Uniform Fraudulent Transfer Act, Uniform Conveyance Act or similar statute or
common law after taking into account, among other things, such Guarantor's right
of contribution and indemnification from each other Guarantor.
Dated: July 21, 1998
CORAM HEALTHCARE
CORPORATION
By: /s/ XXXXX X. XXXXXXX
------------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
CORAM ALTERNATIVE SITE SERVICES,
INC.
By: /s/ XXXXX X. XXXXXXX
------------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
6
25
CORAM HOMECARE OF MINNESOTA,
INC.
By: /s/ XXXXX X. XXXXXXX
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
CORAM HEALTHCARE
CORPORATION OF FLORIDA
By: /s/ XXXXX X. XXXXXXX
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
CORAM HEALTHCARE
CORPORATION OF
GREATER NEW YORK
By: /s/ XXXXX X. XXXXXXX
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
CORAM HEALTHCARE
CORPORATION OF
MASSACHUSETTS
By: /s/ XXXXX X. XXXXXXX
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO & Secretary
7
