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EXHIBIT 10.2
FOURTH AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND
WAIVER made and entered into as of June 6, 2000, by and among HORIZON MEDICAL
PRODUCTS, INC., a Georgia corporation (the "COMPANY"), the Lenders signatory to
the Credit Agreement referred to below (the "LENDERS"), and BANC OF AMERICA
COMMERCIAL FINANCE CORPORATION, formerly known as NationsCredit Commercial
Corporation, as Agent for the Lenders (the "AGENT").
STATEMENT OF FACTS
A. The Company, the Lenders and the Agent are parties to the
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, the Second Amendment to Amended and Restated Credit
Agreement and Waiver dated as of March 31, 1999, and the Third Amendment to
Amended and Restated Credit Agreement and Waiver dated as of March 29, 2000
(the "CREDIT AGREEMENT"; capitalized terms used in this Amendment and not
otherwise defined herein have the meanings given in the Credit Agreement, as
amended hereby), whereby the Lenders have agreed to make certain loans and
other financial accommodations to the Company, subject to the terms and
conditions contained in the Credit Agreement.
B. The Company has requested that the Agent and the Lenders agree
to modify certain terms of the Credit Agreement, and the Agent and the Lenders
are willing to agree to such modifications, subject to the terms and conditions
of this Amendment.
STATEMENT OF TERMS
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. AMENDMENT TO CREDIT AGREEMENT. Subject to the terms and
conditions of this Amendment, the Credit Agreement is hereby amended as
follows:
(a) The definition of the term "Loans" contained in Section 1.01
of the Credit Agreement is amended to read as follows:
"LOANS" means the Revolving Credit Loans and the Bridge Loan.
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(b) The definition of the term "Note" contained in Section 1.01 of
the Credit Agreement is amended to read as follows:
"NOTE" means a Revolving Credit Note or Bridge Loan Note.
(c) The definition of the term "Pledge Agreements" contained in
Section 1.01 of the Credit Agreement is amended to read as follows:
"PLEDGE AGREEMENTS" means, collectively, the Company Pledge
Agreement, the Note Pledge Agreement and any other pledge
agreement delivered from time to time by a Subsidiary
pursuant to Section 5.11 or 6.07.
(d) The definitions of the following new terms are added to
Section 1.01 of the Credit Agreement:
"BRIDGE LOAN" shall have the meaning assigned to it in Section
2.10(a).
"BRIDGE LOAN NOTE" shall have the meaning assigned to it in
Section 2.10(b).
"XXXX BRIDGE LOAN" means the short-term bridge loan advanced
by the Company to Xxxxxxxx X. Xxxx and Xxxx Family
Investments, L.L.L.P. in a principal amount of $900,000 and
having a maturity date of August 30, 2000, which loan is to
be funded by the Bridge Loan as set forth in Section 2.10(a).
"XXXX NOTE" means the Promissory Note, dated June 6, 2000,
made by Xxxxxxxx X. Xxxx and Xxxx Family Investments,
L.L.L.P. payable to the order of the Company, in the
principal amount of $900,000.00, having a maturity date of
August 30, 2000, and evidencing the Xxxx Bridge Loan.
"NOTE PLEDGE AGREEMENT" means the Pledge and Assignment of
Note and Collateral, dated as of June 6, 2000, between the
Company and the Agent, in the form of Exhibit K.
(e) The following new Section 2.10 is added to Article II of the
Credit Agreement, immediately following Section 2.09:
SECTION 2.10 BRIDGE LOAN.
(a) Bridge Loan Commitment. Subject to the terms
and conditions set forth herein, the Lenders hereby agree to
make a short-term bridge loan to the Company on June 6, 2000,
in an aggregate principal amount of $900,000 (the "BRIDGE
LOAN"). The proceeds of the Bridge
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Loan shall be used solely to fund the Company's proposed
short-term bridge loan to Xxxxxxxx Xxxx and Xxxx Family
Investments, L.L.L.P. (the "XXXX BRIDGE LOAN"), which loan
shall be made solely for the purpose of (i) refinancing Xx.
Xxxx'x margin loan with Prudential Securities (in the amount
of $806,245.83) and causing the release of the Company's
common stock pledged by Xx. Xxxx to secure such margin loan,
(ii) paying the costs and expenses incurred in connection with
this Amendment and the transactions contemplated hereby
(including the Agent's and the Lender's costs and expenses
(including attorney's fees) required to be reimbursed by the
Company pursuant to Section 8 hereof, in the amount of
$30,273.51) and (iii) reimbursing Xx. Xxxx for payments
previously made on such margin loan (in an amount up to
$63,480.66). The Bridge Loan shall be secured by the
collateral assignment by the Company of all of its right,
title and interest in and to the Xxxx Bridge Loan, including
the Xxxx Bridge Note and 2,813,943 shares of the Company's
common stock pledged by Xx. Xxxx and Xxxx Family Investments,
L.L.L.P. to secure the Xxxx Bridge Loan, as well as by all
other Collateral.
(b) Bridge Loan Note. The Bridge Loan of each
Lender shall be evidenced by a single Bridge Loan Note,
substantially in the form of Exhibit A-1 (each such note, a
"BRIDGE LOAN NOTE"), dated June 6, 2000, in an aggregate
principal amount equal to the Bridge Loan advanced by such
Lender, duly executed and delivered and payable to such
Lender.
(c) Interest on the Bridge Loans. (i) The
Company shall pay interest on the Bridge Loan to the Lenders
monthly in arrears on the first day of each calendar month
immediately succeeding the month for which such interest
accrues, commencing July 1, 2000. In all cases accrued
interest on the Bridge Loan shall be payable by the Company
to the Lenders on the maturity date of the Bridge Loan.
Interest at the Default Rate shall be payable upon demand by
the Lenders. If any interest on the Bridge Loan accrues or
remains payable after the maturity date of the Bridge Loan,
such interest shall be payable by the Company upon demand by
the Lenders.
(ii) Except as provided in Section 2.03(d), the
Company shall be obligated to pay interest to the Lenders on
the outstanding principal balance of the Bridge Loan from the
date advanced until the Bridge Loan is repaid in full, at a
floating rate per annum equal, at the Company's option, to
one of: (x) the Index Rate plus four and one-half percentage
points (4.5%) or (y) Adjusted LIBOR plus four and one-half
percentage points (4.5%). Interest rate elections shall be
made by the Company as provided in Section 2.03(b).
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(iii) All computations of interest hereunder or
under the other Financing Documents for the Bridge Loan shall
be made by the Agent on the basis of a 360 day year for the
actual number of days occurring in the period for which such
interest is payable. Each determination by the Agent of an
interest rate hereunder shall be conclusive and binding for
all purposes, absent manifest error. The Agent agrees that it
shall, upon written request of the Company (but not more
frequently than once per month), provide a written
calculation in reasonable detail of the most recent interest
rate determination.
(d) Maturity Date. The Bridge Loan shall be due
and payable in full on August 30, 2000.
(f) Section 6.07 and Section 6.08 of the Credit Agreement are each
amended by inserting the following at the end of such Section:
Notwithstanding the foregoing, the Company shall be permitted
to make the Xxxx Bridge Loan.
(g) Section 7.01 is amended by (i) deleting the word "or" at the
end of clause (n) thereof, (ii) deleting the period at the end of clause (o)
thereof and substituting in lieu thereof a semicolon followed by the word "or"
and (iii) inserting the following new clause (p) immediately following clause
(o) thereof:
(p) the occurrence of an "Event of Default" under
(and as defined in) the Xxxx Note, and the continuation
thereof for 10 days after notice thereof has been given to
the Company by the Agent.
(h) The Credit Agreement is further amended by incorporating
therein as new exhibits the Exhibit A-1 and Exhibit K attached hereto.
2. NO OTHER AMENDMENTS. Except for the amendments expressly set
forth in Section 1 above, the Credit Agreement shall remain unchanged and in
full force and effect. Nothing in this Amendment is intended or shall be
construed to constitute a novation or an accord and satisfaction of any of the
Company's Obligations under or in connection with the Credit Agreement or to
modify, affect or impair the perfection or continuity of Agent's security
interests in, security titles to or other liens on any Collateral for the
Obligations.
3. REPRESENTATIONS AND WARRANTIES. The Company hereby represents
and warrants to the Agent and the Lenders that (a) this Amendment has been duly
authorized, executed and delivered by the Company, (b) no Default or Event of
Default has occurred and is continuing as of this date, and (c) except to the
extent disclosed to the Agent in writing on or prior to the date hereof, all of
the representations and warranties made by the Company in the Credit Agreement
and the other Financing Documents are true and correct in all material respects
on and as of the date of this Amendment (except to the extent that any such
representations or warranties
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expressly referred to a specific prior date). Any breach by the Company of its
representations and warranties contained in this Section 3 shall be an Event of
Default for all purposes of the Credit Agreement (as amended hereby).
4. RATIFICATION. The Company hereby ratifies and reaffirms each
and every term, covenant and condition set forth in the Credit Agreement and
all other documents delivered by the Company (as amended hereby) in connection
therewith (including without limitation the other Financing Documents to which
the Company is a party), effective as of the date hereof.
5. ESTOPPEL. To induce the Agent and the Lenders to enter into
this Amendment, the Company hereby acknowledges and agrees that, as of the date
hereof, there exists no right of offset, defense or counterclaim in favor of
the Company as against the Agent or any Lender with respect to the obligations
of the Company to any of such parties under the Credit Agreement or the other
Financing Documents, either with or without giving effect to this Amendment.
6. STRICT COMPLIANCE NOTICE. The Agent hereby notifies the
Company that the Agent and the Lenders intend to rely upon the strict terms and
conditions of the Credit Agreement and the other Financing Documents, and the
Agent and the Lenders expect that the Company will strictly comply with the
terms and conditions thereof from and after this date. Nothing contained in
this Amendment shall constitute a waiver by the Agent or the Lender of any
Default or Event of Default now existing or hereafter arising under the Credit
Agreement or any other Financing Document.
7. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective upon the date hereof, subject to the satisfaction of the following
conditions:
(a) the receipt by the Agent of this Amendment, duly
executed, completed and delivered by the Agent, the Lenders and the
Company, and consented to in writing by the Guarantors;
(b) the receipt by the Agent of the Bridge Loan Note
payable to Banc of America Commercial Finance Corporation in the
principal amount of the Bridge Loan, duly executed, completed and
delivered by the Company;
(c) the receipt by the Agent of the Pledge and Assignment
of Note and Collateral, duly executed, completed and delivered by the
Company, and consented to in writing by Xxxxxxxx X. Xxxx and Xxxx
Family Investments, L.L.L.P.;
(d) the receipt by the Agent of the original Xxxx Bridge
Note, duly endorsed by the Company in favor of the Agent, with
recourse;
(e) the receipt by the Agent of the original Loan
Agreement executed among Xxxxxxxx X. Xxxx, Xxxx Family Investments,
L.L.L.P. and the Company;
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(f) the receipt by the Agent of the original Pledge
Agreements executed by Xxxxxxxx X. Xxxx and Xxxx Family Investments,
L.L.L.P. in favor of the Company, pledging 2,813,943 shares of the
Company's common stock to secure the Xxxx Bridge Note, together with
the stock certificates evidencing such pledged shares, and stock
transfer powers duly executed by Xxxxxxxx X. Xxxx and Xxxx Family
Investments, L.L.L.P. in blank;
(g) the receipt by the Agent of a pay-off letter from
Prudential Securities with respect to the margin loan of Xxxxxxxx X.
Xxxx, indicating a balance due of $806,245.83 and otherwise in form
and substance satisfactory to the Agent;
(h) the receipt by the Agent of a copy of the executed
Exclusivity Agreement entered into between the Company and ***,
regarding the Company's proposed recapitalization;
(i) the receipt by the Agent of a waiver by Tapir
Investments (Bahamas) Ltd. of its co-sale rights with respect to the
Company stock pledged by Xxxx and Xxxx Family Investments, L.L.L.P.,
in form and substance satisfactory to the Agent;
(j) the receipt by the Agent of an opinion of the
Company's counsel, covering such matters as may be requested by the
Agent and otherwise in form and substance satisfactory to the Agent;
(k) the receipt by the Agent of the fees and expenses due
to its counsel from the Company; and
(l) the receipt by the Agent of such other documents,
certificates, lien searches, instruments and opinions of counsel as
the Agent may reasonably request.
8. REIMBURSEMENT OF EXPENSES. The Company hereby agrees that it
shall reimburse the Agent and the Lenders on demand for all costs and expenses
(including without limitation attorney's fees) incurred by such parties in
connection with the negotiation, documentation and consummation of this
Amendment and the other documents executed in connection herewith and therewith
and the transactions contemplated hereby and thereby.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA FOR CONTRACTS TO
BE PERFORMED ENTIRELY WITHIN SAID STATE.
10. SEVERABILITY OF PROVISIONS. Any provision of this Amendment
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability of such provision in any other jurisdiction. To the extent
permitted by applicable law, the Company hereby waives any provision of law
that renders any provision hereof prohibited or unenforceable in any respect.
*** CONFIDENTIAL TREATMENT REQUESTED; PORTION OMITTED FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
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11. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, all of which shall be deemed to constitute but one original and
shall be binding upon all parties, their successors and permitted assigns.
12. ENTIRE AGREEMENT. The Credit Agreement as amended by this
Amendment embodies the entire agreement between the parties hereto relating to
the subject matter hereof and supersedes all prior agreements, representations
and understandings, if any, relating to the subject matter hereof.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed by their respective officers thereunto duly authorized, as of the date
first above written.
HORIZON MEDICAL PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxxx, Xx.
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Title: President
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LENDER AND AGENT:
BANC OF AMERICA COMMERCIAL
FINANCE CORPORATION
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Duly Authorized Signatory
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ACKNOWLEDGMENT
The undersigned Credit Parties hereby acknowledge and consent to, and
agree to the terms of, the foregoing Fourth Amendment to Amended and Restated
Credit Agreement, and ratify and confirm their respective obligations under the
Financing Documents, as of the date of such Amendment.
HORIZON ACQUISITION CORP.
By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
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Title: Chief Executive Officer
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STRATO/INFUSAID, INC.
By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
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Title: President and Chief Executive Officer
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XXXXXX CORPORATION
By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
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Title: Chief Executive Officer
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