EXHIBIT 10.41
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment")
is made and entered into as of December 23, 2002, by and between HORIZON MEDICAL
PRODUCTS, INC., a Georgia corporation (hereinafter referred to as "Borrower"),
with its chief executive office and principal place of business at Xxx Xxxxxxx
Xxx, Xxxxxxxxxx, Xxxxxxx 00000, and STANDARD FEDERAL BANK NATIONAL ASSOCIATION,
a national banking association, acting by and through LASALLE BUSINESS CREDIT,
INC., a Delaware corporation, as its agent (hereinafter referred to as
"Lender"), with an office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000-0000.
RECITALS:
Lender and Borrower are parties to a certain Loan and Security
Agreement dated as of March 18, 2002 (as amended at any time, the "Loan
Agreement"), pursuant to which Lender has made certain loans and other financial
accommodations to Borrower.
The parties desire to amend the Loan Agreement as hereinafter set
forth.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good
and valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. DEFINITIONS. All capitalized terms used in this Amendment,
unless otherwise defined herein, shall have the meaning ascribed to such terms
in the Loan Agreement.
2. AMENDMENTS TO LOAN AGREEMENT. The Loan Agreement is hereby
amended as follows:
(a) By deleting the definition of "Eligible Inventory" in
Section 1 of the Loan Agreement.
(b) By deleting the definitions of "Average Monthly Loan
Balance," "Minimum Loan Balance" and "Revolver Note" in Section 1 of the Loan
Agreement and by substituting in lieu thereof the following:
"AVERAGE MONTHLY LOAN BALANCE" shall mean the amount
obtained by adding the unpaid balance of Revolver Loans and
Letter of Credit Obligations owing by Borrower to Lender at
the end of each day for each day during the month in question
and by dividing such sum by the number of days in such month.
"MINIMUM LOAN BALANCE" shall mean $2,500,000.
"REVOLVER NOTE" shall mean that certain Amended and
Restated Revolving Note dated as of December 23, 2002, from
Borrower to Lender in the original principal amount of up to
$10,000,000.
(c) By deleting Section 2(a) of the Loan Agreement and by
substituting in lieu thereof the following:
A. REVOLVING LOANS.
Subject to the terms and conditions of this Agreement
and the Other Agreements, during the Original Term and any
Renewal Term, Lender agrees to make revolving loans and
advances (the "Revolving Loans") in an amount up to the sum of
the following sublimits (the "Revolving Loan Limit"):
(i) Up to eighty-five percent (85%) of
the face amount (less maximum discounts, credits and
allowances which may be taken by or granted to Account Debtors
in connection therewith in the ordinary course of Borrower's
business) of Borrower's Eligible Accounts; minus
(ii) such reserves as Lender elects, in
its sole discretion to establish from time to time;
provided, that THE REVOLVING LOAN LIMIT SHALL IN NO EVENT
EXCEED TEN MILLION AND NO/100 DOLLARS ($10,000,000) (THE
"MAXIMUM REVOLVING LOAN LIMIT").
The aggregate unpaid principal balance of the
Revolving Loans shall not at any time exceed the lesser of:
(i) the Revolving Loan Limit minus the Letter of Credit
Obligations and (ii) the Maximum Revolving Loan Limit minus
the Letter of Credit Obligations. If at any time the
outstanding Revolving Loans exceeds either the Revolving Loan
Limit or the Maximum Revolving Loan Limit, in each case minus
the Letter of Credit Obligations, or any portion of the
Revolving Loans and Letter of Credit Obligations exceeds any
applicable sublimits under subsections (i) and (ii) above
within the Revolving Loan Limit, Borrower shall immediately,
and without the necessity of demand
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by Lender, pay to Lender such amount as may be necessary to
eliminate such excess and Lender shall apply such payment to
the Revolving Loans in such order as Lender shall determine in
its sole discretion.
Borrower hereby authorizes Lender, (but without any
obligation or duty of Lender to do so) to charge any of
Borrower's accounts or advance Revolving Loans to make any
payments of principal, interest, fees, costs or expenses
required to be made under this Agreement or the Other
Agreements.
A request for a Revolving Loan shall be made or shall
be deemed to be made, each in the following manner: Borrower
shall give Lender same day notice, no later than 10:30 A.M.
(Chicago time) for such day, of its request for a Revolving
Loan. In the event that Borrower maintains a controlled
disbursement account at LaSalle Bank, each check presented for
payment against such controlled disbursement account and any
other charge or request for payment against such controlled
disbursement account shall constitute a request for a
Revolving Loan. As an accommodation to Borrower, Lender may
permit telephone requests for Revolving Loans and electronic
transmittal of instructions, authorizations, agreements or
reports to Lender by Borrower. Unless Borrower specifically
directs Lender in writing not to accept or act upon telephonic
or electronic communications from Borrower, Lender shall have
no liability to Borrower for any loss or damage suffered by
Borrower as a result of Lender's honoring of any requests,
execution of any instructions, authorizations or agreements or
reliance on any reports communicated to it telephonically or
electronically and purporting to have been sent to Lender by
Borrower and Lender shall have no duty to verify the origin of
any such communication or the authority of the Person sending
it.
Borrower hereby irrevocably authorizes Lender to
disburse the proceeds of each Revolving Loan requested by
Borrower, or deemed to be requested by Borrower, as follows:
(i) the proceeds of each Revolving Loan requested under
Section 2(a) shall be disbursed by Lender in lawful money of
the United States of America in immediately available funds,
in the case of the initial borrowing, in accordance with the
terms of the written disbursement letter from Borrower, and
(ii) in the case of each subsequent borrowing, by wire
transfer or Automated Clearing House (ACH) transfer to such
bank account as may be agreed upon
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by Borrower and Lender from time to time, or elsewhere if
pursuant to a written direction from Borrower.
(d) By deleting Section 4(b)(ii) of the Loan Agreement
and by substituting in lieu thereof the following:
(ii) Unused Line Fee: Borrower shall pay to
Lender an unused line fee of three quarters of one percent
(0.75%) of the difference between the Maximum Revolving Loan
Limit and the greater of (x) Average Monthly Loan Balance and
(y) the Minimum Loan Balance, which fee shall be fully earned
by Lender and payable monthly in arrears on the first Business
Day of each month. Said fee shall be calculated on the basis
of a 360 day year.
(e) By adding a new Section 4(b)(v) to the Loan Agreement
that reads as follows:
(v) Annual Facility Fee. Borrower shall pay to
Lender an annual facility fee of $100,000, payable on the
first day of each calendar year, in advance, commencing on
January 1, 2003.
(f) By deleting Section 4(d) of the Loan Agreement and by
substituting the following in lieu thereof:
Regardless of any provision contained in any of the
Other Agreements, in no contingency or event whatsoever shall
the aggregate of all amounts that are contracted for, charged
or received by Lender pursuant to the terms of this Agreement
or any of the Other Agreements and that are deemed interest
under applicable law exceed the highest rate permissible under
any applicable law. No agreements, conditions, provisions or
stipulations contained in this Agreement or any of the Other
Agreements or the exercise by Lender of the right to
accelerate the payment or the maturity of all or any portion
of the Obligations, or the exercise of any option whatsoever
contained in the Loan Agreement or any of the Other Documents,
or the prepayment by Borrower of any of the Obligations, or
the occurrence of any contingency whatsoever, shall entitle
Lender to charge or receive in any event, interest in excess
of the maximum rate permitted by applicable law (the "Maximum
Rate") and in no event shall Borrower be obligated to pay any
charges, amounts, premiums or fees deemed interest by
applicable law (such interest, charges, amounts, premiums and
fees referred to herein collectively as "Interest") exceeding
such Maximum Rate, and all agreements, conditions or
stipulations, if any, which may in any
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event or contingency whatsoever operate to bind, obligate or
compel Borrower to pay Interest exceeding the Maximum Rate
shall be without binding force or effect, at law or in equity,
to the extent only of the excess of Interest over such Maximum
Rate. If any Interest is charged or received in excess of the
Maximum Rate permitted by applicable law ("Excess"), Borrower
acknowledges and stipulates that any such charge or receipt
shall be the result of an accident and bona fide error, and
such Excess, to the extent received, shall be applied first to
reduce the principal Liabilities and the balance, if any,
returned to Borrower, it being the intent of the parties
hereto not to enter into a usurious or otherwise illegal
relationship. All monies paid to Lender hereunder or under any
of the Other Agreements, whether at maturity or by prepayment,
shall be subject to any rebate of unearned Interest as and to
the extent required by applicable law. By the execution of
this Agreement, Borrower covenants that (i) the credit or
return of any Excess shall constitute the acceptance by
Borrower of such Excess, and (ii) Borrower shall not seek or
pursue any other remedy, legal or equitable, against Lender,
based in whole or in part upon contracting for, charging or
receiving any Interest in excess of the Maximum Rate. For the
purpose of determining whether or not any Excess has been
contracted for, charged or received by Lender, all Interest at
any time contracted for, charged or received from Borrower in
connection with the Loan Agreement or any of the Other
Agreements shall, to the extent permitted by applicable law,
be amortized, prorated, allocated and spread in equal parts
throughout the full term of the Liabilities. Borrower and
Lender shall, to the maximum extent permitted under applicable
law, (i) characterize any non-principal payment as an expense,
fee or premium rather than as Interest and (ii) exclude
voluntary prepayments and the effects thereof. The provisions
of this Section shall be deemed to be incorporated into every
Other Agreement (whether or not any provision of this Section
is referred to therein). All such Other Agreements and
communications relating to any Interest owed by Borrower and
all figures set forth therein shall, for the sole purpose of
computing the extent of Liabilities, be automatically
recomputed by Borrower, and by any court considering the same,
to give effect to the adjustments or credits required by this
Section.
(g) By deleting Section 10 of the Loan Agreement and by
substituting in lieu thereof the following:
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10. TERMINATION; AUTOMATIC RENEWAL.
THIS AGREEMENT SHALL BE IN EFFECT FROM THE DATE
HEREOF UNTIL MARCH 17, 2005 (THE "ORIGINAL TERM") AND SHALL
AUTOMATICALLY RENEW ITSELF FROM YEAR TO YEAR THEREAFTER (EACH
SUCH ONE-YEAR RENEWAL BEING REFERRED TO HEREIN AS A "RENEWAL
TERM") UNLESS (A) LENDER MAKES DEMAND FOR REPAYMENT PRIOR TO
THE END OF THE ORIGINAL TERM OR THE THEN CURRENT RENEWAL TERM;
(B) THE DUE DATE OF THE LIABILITIES IS ACCELERATED PURSUANT TO
SECTION 16 HEREOF; (C) BORROWER ELECTS TO TERMINATE THIS
AGREEMENT AT THE END OF THE ORIGINAL TERM OR AT THE END OF ANY
RENEWAL TERM BY GIVING LENDER WRITTEN NOTICE OF SUCH ELECTION
AT LEAST NINETY (90) DAYS PRIOR TO THE END OF THE ORIGINAL
TERM OR THE THEN CURRENT RENEWAL TERM AND BY PAYING ALL OF THE
LIABILITIES IN FULL ON THE LAST DAY OF SUCH TERM; OR (D)
LENDER ELECTS TO TERMINATE THIS AGREEMENT ON OR AFTER FEBRUARY
1, 2004, AS A RESULT OF A TERMINATION EVENT. If one or more of
the events specified in clauses (a), (b) and (c) occurs, then
(i) Lender shall not make any additional Loans on or after the
date identified as the date on which the Liabilities are to be
repaid; and (ii) this Agreement shall terminate on the date
thereafter that the Liabilities are paid in full. At such time
as Borrower has repaid all of the Liabilities and this
Agreement has terminated, Borrower shall deliver to Lender a
release, in form and substance satisfactory to Lender, of all
obligations and liabilities of Lender and its officers,
directors, employees, agents, parents, subsidiaries and
affiliates to Borrower, and if Borrower is obtaining new
financing from another lender, Borrower shall deliver such
lender's indemnification of Lender, in form and substance
satisfactory to Lender, for checks which Lender has credited
to Borrower's account, but which subsequently are dishonored
for any reason or for automatic clearinghouse or wire
transfers not yet posted to Borrower's account.
(h) By deleting Section 11(d) of the Loan Agreement and
by substituting in lieu thereof the following:
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D. ACCOUNTS.
Each Account which Borrower shall, expressly
or by implication, request Lender to classify as an Eligible
Account shall, as of the time when such request is made,
conform in all respects to the requirements of such
classification as set forth in the definition of "Eligible
Account"as set forth herein and as otherwise established by
Lender from time to time.
(i) By deleting Section 12(b)(ii) of the Loan Agreement
and by substituting in lieu thereof the following:
(ii) Eligible Accounts. Promptly upon becoming
aware thereof, notify Lender if any Account identified by
Borrower or any Subsidiary to Lender as an Eligible Account
becomes ineligible for any reason.
(j) By deleting Exhibit A, Schedule 11(n) and Schedule 14
to the Loan Agreement in their entirety and by substituting in lieu thereof,
respectively, Exhibit A, Schedule 11(n) and Schedule 14 attached hereto.
(k) By adding to Schedule 11(g) to the Loan Agreement the
information contained on Schedule 11(g) attached hereto.
(l) Any and all references in the Loan Agreement and
Other Agreements to "Xxxxxx Corporation" or "Xxxxxx" shall mean HMP
Distribution, Inc., a New York corporation.
3. ELIMINATION OF PREPAYMENT FEE; RIGHT OF FIRST REFUSAL.
Borrower has requested that Lender eliminate the prepayment fee payable pursuant
to Section 10 of the Loan Agreement. To induce Lender to do so, if Borrower
seeks the refinancing of the Liabilities, Borrower agrees that Lender shall have
a right of first refusal to submit a proposal with regards to any such
refinancing prior to Borrower entering into negotiations with any Person other
than Lender with regards to such refinancing.
4. ADDITIONAL COVENANT. To induce Lender to enter into this
Amendment, Borrower covenants and agrees that simultaneously with the execution
and delivery of this Amendment, Borrower shall execute and deliver to Lender an
Amended and Restated Revolving Note in the form of Annex 1 attached hereto.
5. RATIFICATION AND REAFFIRMATION. Borrower hereby ratifies and
reaffirms the Liabilities, the Loan Agreement, each of the Other Agreements and
all of Borrower's covenants, duties, indebtedness and liabilities under the Loan
Agreement and the Other Agreements.
6. ACKNOWLEDGMENTS AND STIPULATIONS. Borrower acknowledges and
stipulates that the Loan Agreement and the Other Agreements executed by Borrower
are legal, valid and
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binding obligations of Borrower that are enforceable against Borrower in
accordance with the terms thereof; all of the Liabilities are owing and payable
without defense, offset or counterclaim (and to the extent there exists any such
defense, offset or counterclaim on the date hereof, the same is hereby waived by
Borrower); the security interests and liens granted by Borrower in favor of
Lender are duly perfected, first priority security interests and liens; the
unpaid principal amount of the Revolver Loans on and as of December 20, 2002,
totaled $127,757.30; and the unpaid principal amount of the Term Loan on and as
of December 20, 2002, totaled $1,499,999.96.
7. REPRESENTATIONS AND WARRANTIES. Borrower represents and
warrants to Lender, to induce Lender to enter into this Amendment, that no
Default or Event of Default exists on the date hereof; the execution, delivery
and performance of this Amendment have been duly authorized by all requisite
corporate action on the part of Borrower and this Amendment has been duly
executed and delivered by Borrower; and all of the representations and
warranties made by Borrower in the Loan Agreement, as hereby amended, are true
and correct on and as of the date hereof.
8. REFERENCE TO LOAN AGREEMENT. Upon the effectiveness of this
Amendment, each reference in the Loan Agreement to "this Agreement,"
"hereunder," or words of like import shall mean and be a reference to the Loan
Agreement, as amended by this Amendment.
9. BREACH OF AMENDMENT. This Amendment shall be part of the Loan
Agreement and a breach of any of any representation, warranty or covenant herein
shall constitute an Event of Default.
10. FEES. In consideration of (i) Lender's prior written consent
to the sale of substantially all of the assets of Xxxxxx Corporation now known
as HMP Distribution, Inc., (ii) the foregoing by Lender at the time of such sale
of the prepayment fee in connection with such sale, and (iii) Lender's
willingness to continue to provide financial accommodations to Borrower during
the period after the sale in order to allow Borrower sufficient time to propose
a restructuring of the loan facility with Lender as now memorialized in this
Amendment, Borrower acknowledges and agrees that Lender has earned a
non-refundable fee in the amount of $600,000 and Borrower agrees to pay such fee
to Lender, in immediately available funds, on the date hereof. In consideration
of Lender's willingness to enter into this Amendment and to continue to provide
financial accommodations to Borrower after the date hereof under a committed
loan facility, Borrower also agrees to pay to Lender a non-refundable commitment
fee in the amount of $200,000, in immediately available funds on the date
hereof.
11. EFFECTIVENESS; GOVERNING LAW. This Amendment shall be
effective upon acceptance by Lender in Atlanta, Georgia (notice of which
acceptance Borrower hereby waives), whereupon the same shall be governed by and
construed in accordance with the internal laws of the State of Georgia.
12. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
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13. NO NOVATION, ETC.. Except as otherwise expressly provided in
this Amendment, nothing herein shall be deemed to amend or modify any provision
of the Loan Agreement or any of the Other Agreements, each of which shall remain
in full force and effect. This Amendment is not intended to be, nor shall it be
construed to create, a novation or accord and satisfaction, and the Loan
Agreement as herein modified shall continue in full force and effect.
14. COUNTERPARTS; TELECOPIED SIGNATURES. This Amendment may be
executed in any number of counterparts and by different parties to this
Amendment on separate counterparts, each of which, when so executed, shall be
deemed an original, but all such counterparts shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
15. FURTHER ASSURANCES. Borrower agrees to take such further
actions as Lender shall reasonably request from time to time in connection
herewith to evidence or give effect to the amendments set forth herein or any of
the transactions contemplated hereby.
16. SECTION TITLES. Section titles and references used in this
Amendment shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreements among the parties hereto.
17. RELEASE OF CLAIMS. TO INDUCE LENDER TO ENTER INTO THIS
AMENDMENT, BORROWER HEREBY RELEASES, ACQUITS AND FOREVER DISCHARGES LENDER, AND
ALL OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS OF LENDER,
FROM ANY AND ALL LIABILITIES, CLAIMS, DEMANDS, ACTIONS OR CAUSES OF ACTION OF
ANY KIND OR NATURE (IF THERE BE ANY), WHETHER ABSOLUTE OR CONTINGENT, DISPUTED
OR UNDISPUTED, AT LAW OR IN EQUITY, OR KNOWN OR UNKNOWN, THAT BORROWER NOW HAS
OR EVER HAD AGAINST LENDER ARISING UNDER OR IN CONNECTION WITH THE LOAN
AGREEMENT OR ANY OF THE OTHER AGREEMENTS OR OTHERWISE. BORROWER REPRESENTS AND
WARRANTS TO LENDER THAT BORROWER HAS NOT TRANSFERRED OR ASSIGNED TO ANY PERSON
ANY CLAIM THAT BORROWER EVER HAD OR CLAIMED TO HAVE AGAINST LENDER.
18. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE PARTIES HERETO EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY
IN ANY ACTION, SUIT, COUNTERCLAIM OR PROCEEDING ARISING OUT OF OR RELATED TO
THIS AMENDMENT.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal and delivered by their respective duly authorized
officers as of the date first written above.
ATTEST: HORIZON MEDICAL PRODUCTS, INC.
("Borrower")
By:
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XXXXXXX X. XXXXXXXX, XX., XXXXX X. XXXXXXXXX, Vice President-Finance
President and Secretary
[CORPORATE SEAL]
STANDARD FEDERAL BANK NATIONAL
LASALLE BUSINESS CREDIT, INC., as its agent
("Lender")
By:
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Title:
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ANNEX 1
FORM OF AMENDED AND RESTATED REVOLVING NOTE
Executed as of December ___, 2002 No.___________
Amount $10,000,000.00
FOR VALUE RECEIVED, the Undersigned (jointly and severally, if
more than one) promises to pay to the order of STANDARD FEDERAL BANK NATIONAL
ASSOCIATION, acting by and through LASALLE BUSINESS CREDIT, INC., as its agent
(hereinafter, together with any holder hereof, called "Lender"), at the main
office of the lender, the principal sum of Ten Million and No/100 Dollars
($10,000,000) plus the aggregate unpaid principal amount of all advances made by
Lender to the Undersigned (or any one of them, if more than one) pursuant to and
in accordance with Subsection 2(a) of the Loan Agreement (as hereinafter
defined) in excess of such amount, or, if less, the aggregate unpaid principal
amount of all advances made by Lender to the Undersigned (or any one of them, if
more than one) pursuant to and in accordance with Subsection 2(a) of the Loan
Agreement. The Undersigned (jointly and severally, if more than one) further
promises to pay interest on the outstanding principal amount hereof on the dates
and at the rates provided in the Loan Agreement from the date hereof until
payment in full hereof. The Prime Rate on the date hereof is __________________
percent (_____%) per annum and therefore, the rate of interest in effect
hereunder on the date hereof, expressed in simple interest terms, is
_________________ percent (_____%) per annum.
This Note is referred to in and is delivered pursuant to that
certain Loan and Security Agreement, as it may be amended from time to time,
together with all exhibits thereto, dated as of March 18, 2002, between Lender
and the Undersigned (the "Loan Agreement"). All terms which are capitalized and
used herein (which are not otherwise defined herein) shall have the meaning
ascribed to such term in the Loan Agreement.
Principal hereunder shall be payable pursuant to the terms of
the Loan Agreement.
The Undersigned (and each one of them, if more than one)
hereby authorizes the Lender to charge any account of the Undersigned (and each
one of them, if more than one) for all sums due hereunder. If payment hereunder
becomes due and payable on a Saturday, Sunday or legal holiday under the laws of
the United States or the States of Illinois or Georgia, the due date thereof
shall be extended to the next succeeding business day, and interest shall be
payable thereon at the rate specified during such extension. Credit shall be
given for payments made in the manner and at the times provided in the Loan
Agreement. It is the intent of the parties that the rate of interest and other
charges to the Undersigned under this Note shall be lawful; therefore, if for
any reason the interest or other charges payable hereunder are found by a court
of competent jurisdiction, in a final determination, to exceed the limit which
Lender may lawfully charge the Undersigned, then the obligation to pay interest
or other charges shall
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automatically be reduced to such limit and, if any amount in excess of such
limit shall have been paid, then such amount shall be refunded to the
Undersigned.
The principal and all accrued interest hereunder may be
prepaid by the Undersigned, in part or in full, at any time; provided, however,
that the Undersigned shall pay a prepayment fee as provided in the Loan
Agreement.
The Undersigned (and each one of them, if more than one)
waives the benefit of any law that would otherwise restrict or limit Lender in
the exercise of its right, which is hereby acknowledged, to set-off against the
Liabilities, without notice and at any time hereafter upon the occurrence and
during the continuation of an Event of Default, any indebtedness matured or
unmatured owing from Lender to the Undersigned (or any one of them). The
Undersigned (and each one of them, if more than one) waives every defense,
counterclaim or setoff which the Undersigned (or any one of them) may now have
or hereafter may have to any action by Lender in enforcing this Note and/or any
of the other Liabilities, or in enforcing Lender's rights in the Collateral and
ratifies and confirms whatever Lender may do pursuant to the terms hereof and of
the Loan Agreement and with respect to the Collateral and agrees that Lender
shall not be liable for any error in judgment or mistakes of fact or law.
The Undersigned, any other party liable with respect to the
Liabilities and any and all endorsers and accommodation parties, and each one of
them, if more than one, waive any and all presentment, demand, notice of
dishonor, protest, and all other notices and demands in connection with the
enforcement of Lender's rights hereunder.
The loan evidenced hereby has been made and this Note has been
delivered at Atlanta, Georgia. THIS NOTE SHALL BE GOVERNED AND CONTROLLED BY THE
INTERNAL LAWS OF THE STATE OF GEORGIA AS TO INTERPRETATION, ENFORCEMENT,
VALIDITY, CONSTRUCTION, EFFECT, AND IN ALL OTHER RESPECTS, INCLUDING WITHOUT
LIMITATION, THE LEGALITY OF THE INTEREST RATE AND OTHER CHARGES, and shall be
binding upon the Undersigned (and each one of them, if more than one) and the
Undersigned's legal representatives, successors and assigns (and each of them,
if more than one). If this Note contains any blanks when executed by the
Undersigned (or any one of them, if more than one), the Lender is hereby
authorized, without notice to the Undersigned (or any one of them, if more than
one) to complete any such blanks according to the terms upon which the loan or
loans were granted. Wherever possible, each provision of this Note shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Note shall be prohibited by or be invalid under
such law, such provision shall be severable, and be ineffective to the extent of
such prohibition or invalidity, without invalidating the remaining provisions of
this Note. If more than one party shall execute this Note, the term
"Undersigned" as used herein shall mean all parties signing this Note, and each
one of them, and all such parties, their respective heirs, executors,
administrators, successors and assigns, shall be jointly and severally obligated
hereunder.
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To induce the Lender to make the loan evidenced by this Note,
the Undersigned (and each one of them, if more than one) (i) irrevocably agrees
that, subject to Lender's sole and absolute election, all actions arising
directly or indirectly as a result or in consequence of this Note or any other
agreement with the Lender, or the Collateral, shall be instituted and litigated
only in courts having situs in Xxxx County, Georgia; (ii) hereby consents to the
exclusive jurisdiction and venue of any State or Federal Court located and
having its situs in said city; and (iii) waives any objection based on forum
non-conveniens. IN ADDITION, LENDER AND THE UNDERSIGNED (OR ANY ONE OF THEM, IF
MORE THAN ONE) HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING WHICH
PERTAINS DIRECTLY OR INDIRECTLY TO THIS NOTE, THE LIABILITIES, THE COLLATERAL,
ANY ALLEGED TORTIOUS CONDUCT BY THE UNDERSIGNED OR LENDER OR WHICH IN ANY WAY,
DIRECTLY OR INDIRECTLY, ARISES OUT OF OR RELATES TO THE RELATIONSHIP BETWEEN THE
UNDERSIGNED AND LENDER. In addition, the Undersigned agrees that all service of
process shall be made as provided in the Loan Agreement. This Note is intended
to take effect as an instrument under seal under Georgia law.
As used herein, all provisions shall include the masculine,
feminine, neuter, singular and plural thereof, wherever the context and facts
require such construction and in particular the word "Undersigned" shall be so
construed.
This Note amends, restates, renews, replaces and supersedes
that certain Revolving Note dated as of March 18, 2002 (the "Original Revolving
Note"). It is the intention of the Undersigned and Lender that while this Note
amends, restates, renews, replaces and supersedes the Original Revolving Note,
it is not in payment or satisfaction of the Original Revolving Note, but rather
constitutes the substitution of one evidence of debt for another without any
intent to extinguish the old. Should there be any conflict between any of the
terms of the Original Revolving Note and the terms of this Note, the terms of
this Note shall control.
IN WITNESS WHEREOF, the Undersigned has caused this Note to be
executed under seal and delivered by its duly authorized officer on the date
first written above.
HORIZON MEDICAL PRODUCTS, INC.
By:
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Name:
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Title:
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[CORPORATE SEAL]
Address:
Xxx Xxxxxxx Xxx
Xxxxxxxxxx, Xxxxxxx 00000
FOR BANK USE ONLY
Officer's Initials:
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Approval:
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SCHEDULE 14 - FINANCIAL COVENANTS
A. TANGIBLE NET WORTH.
Borrower's Tangible Net Worth shall not at any time be less than the Minimum
Tangible Net Worth set forth below for the period applicable thereto:
Period Minimum Tangible Net Worth
------ --------------------------
Fiscal quarter ending December 31, 2002 $7,500,000
Fiscal quarter ending March 31, 2003 $7,500,000
Fiscal quarter ending June 30, 2003 $7,500,000
Fiscal quarter ending September 30, 2003 $7,500,000
Fiscal quarter ending December 31, 2003 $8,000,000
and each fiscal quarter thereafter
For purposes hereof, "TANGIBLE NET WORTH" shall mean Borrower's shareholders'
equity (including retained earnings) less the book value of all intangible
assets, any pre-paid items and non-cash items arising from the transactions
contemplated by this Agreement and the goodwill impairment changes recorded as a
result of FASB 142 as determined solely by Lender on a consistent basis plus the
amount of any LIFO reserve plus the amount of any debt subordinated to Lender,
all as determined under generally accepted accounting principles applied on a
basis consistent with the financial statement dated December 31, 2001, except as
set forth herein.
B. FIXED CHARGE COVERAGE.
Borrower shall not permit the ratio of its EBITDA to Fixed Charges for each
period set forth below to be less than the ratio set forth below for the
corresponding period set forth below, in each case for the immediately preceding
four fiscal quarters:
Period Ratio
------ -----
Fiscal quarter ending December 31, 2002 0.15 to 1.0
Fiscal quarter ending March 31, 2003 0.3 to 1.0
Fiscal quarter ending June 30, 2003 0.3 to 1.0
Fiscal quarter ending September 30, 2003 0.3 to 1.0
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Fiscal quarter ending December 31, 2003 0.50 to 1.0
Fiscal quarter ending March 31, 2004 0.75 to 1.0
Fiscal quarter ending June 30, 2004 1.0 to 1.0
and each fiscal quarter thereafter
C. EBITDA.
Borrower shall not permit EBITDA to be less than the amount set forth below for
the corresponding as of the date set forth below, based upon the immediately
preceding four fiscal quarters:
Period Amount
------ ------
December 31, 2002 $ 750,000
March 31, 2003 $1,350,000
June 30, 2003 $1,475,000
September 30, 2003 $1,475,000
December 31, 2003 $2,500,000
March 31, 2004 $3,675,000
June 30, 2004 and each fiscal $4,900,000
quarter thereafter based upon the
immediately preceding four
fiscal quarters
D. CAPITAL EXPENDITURE LIMITATIONS.
Borrower and its Subsidiaries shall not make any Capital Expenditures if, after
giving effect to such Capital Expenditure, the aggregate cost of all such fixed
assets purchased or otherwise acquired would exceed $1,500,000 during any Fiscal
Year.
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CONSENT AND REAFFIRMATION
Each of the undersigned guarantors of the Liabilities of
Borrower at any time owing to Lender hereby (i) acknowledges receipt of a copy
of the foregoing First Amendment to Loan and Security Agreement; (ii) consents
to Borrower's execution and delivery thereof and of the other documents,
instruments or agreements Borrower agrees to execute and deliver pursuant
thereto; (iii) agrees to be bound thereby; and (iv) affirms that nothing
contained therein shall modify in any respect whatsoever its guaranty of the
Liabilities and reaffirms that such guaranty is and shall remain in full force
and effect.
IN WITNESS WHEREOF, each of the undersigned has executed this
Consent and Reaffirmation as of the date of such First Amendment to Loan and
Security Agreement.
ATTEST: HORIZON ACQUISITION CORP.
By:
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XXXXXXX X. XXXXXXXX, XX., XXXXXXXX X. XXXX,
Executive Vice President, Secretary President and Chief Executive Officer
and Treasurer
[CORPORATE SEAL]
ATTEST: STRATO/INFUSAID, INC.
By:
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XXXXXXX X. XXXXXXXX, XX., XXXXXXXX X. XXXX,
Executive Vice President, Secretary President and Chief Executive Officer
and Treasurer
[CORPORATE SEAL]
ATTEST: HMP DISTRIBUTION, INC., formerly known as
Xxxxxx Corporation
By:
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XXXXXXX X. XXXXXXXX, XX., XXXXXXXX X. XXXX, Chief Executive
Officer
Secretary
[CORPORATE SEAL]
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