NOTE PURCHASE AGREEMENT
THIS NOTE PURCHASE AGREEMENT ("Agreement") is made and entered into
effective as of this 7th day of August, 1997 by and among ALLIED HEALTHCARE
PRODUCTS, INC., a Delaware corporation (the "Company"), B&F MEDICAL PRODUCTS,
INC., a Delaware corporation ("B&F"), BEAR MEDICAL SYSTEMS, INC., a
California corporation ("Bear"), HOSPITAL SYSTEMS, INC., a California
corporation ("Hospital Systems"), LIFE SUPPORT PRODUCTS, INC., a California
corporation ("Life Support"), BICORE MONITORING SYSTEMS, INC., a California
corporation ("Bicore"), each with their chief executive office located at
0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx, 00000 (Company, B&F, Bear,
Hospital Systems, Life Support and Bicore are collectively referred to herein
as "Borrowers"), and each of the purchasers named on Schedule I to this
Agreement (individually "Purchaser" and collectively "Purchasers").
RECITALS:
WHEREAS, the Borrowers desire to issue and sell $5,000,000 aggregate
principal amount of their 14.00% Promissory Notes;
WHEREAS, the Purchasers collectively desire to purchase the 14.00%
Promissory Notes, subject to and on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises and covenants contained herein and such other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the Borrowers and Purchasers hereby agree as follows:
1. AUTHORIZATION; PREPAYMENT AND CLOSING.
(a) Authorization of the Notes. The Borrowers shall authorize
the issuance and sale of $5,000,000 aggregate principal amount of 14.00%
Promissory Notes (together with any subsequent Note or Notes issued in
exchange therefor or otherwise in respect of the indebtedness evidenced by
all or any portion of the principal balance of the Notes issued hereunder,
the "Notes") to be dated the date hereof, to bear interest from such date at
the rate of fourteen percent (14%) per annum payable monthly on the first
Business Day of each calendar month (commencing on September 1, 1997) and at
maturity, and to bear interest on overdue principal at the rate of twenty
percent (20%) per annum after the date due (the "Default Rate"), whether by
acceleration or otherwise, until paid, and expressed to mature six (6) months
after the Closing Date (as defined in Section 1(c) below) (unless otherwise
extended as permitted in Section 7(p) hereof) and to be substantially in the
form attached hereto as Exhibit A. Interest shall be calculated on a daily
basis (computed on the actual number of days elapsed over a year of 360
days), commencing on the date hereof (including the first day but excluding
the last day).
(b) Prepayment. The Borrowers shall have the right to prepay
the Notes, in whole or in part, at any time, without penalty or premium;
provided, however, that: (i) upon the sale of any of the issued and
outstanding stock or any of the assets of any Subsidiary in one or a series
of related transactions; or (ii) upon the sale of any of the assets of any
division of the Company (except with respect to sales of assets made in the
ordinary course) in one or a series of related transactions; and/or (iii) in
the event Company consummates any private placement of debt and/or equity,
conducts any
public offering of debt and/or equity and/or otherwise causes a capital
infusion to be made into Company or any Subsidiary, the proceeds generated
therefrom shall be used first to repay Term Loan C issued under the Foothill
Loan Agreement, and next to repay the Notes issued pursuant hereto. Any
prepayment made hereunder shall be paid to the holders of each Note in the
proportion that the unpaid principal amount of each Note (immediately prior
to such prepayment) bears to the aggregate unpaid principal amount of all
Notes.
(c) Commitment, Closing Date. Subject to the terms and
conditions hereof and on the basis of the representations and warranties
hereinafter set forth, the Borrowers agree to issue and sell to each
Purchaser, and each Purchaser agrees to purchase from the Borrowers, Notes in
the principal amount set forth opposite such Purchaser's name on Schedule I
hereto at a price of 100% of the principal amount thereof at the Closing (as
defined in Section 1(c) below).
(d) Closing, Delivery of the Notes. The purchase and sale of
the Notes (the "Closing") shall take place at the offices of Xxxxxxxxxxxx,
Xxxxxx & Xxxx, P.C., 00 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx,
00000 at 10:00 a.m. on August 7, 1997 (the "Closing Date"), or at such other
place or on such other date as may be mutually agreeable to the Borrowers and
the Purchasers. At the Closing, the Borrowers will execute and deliver the
Notes, evidencing the Borrowers' indebtedness to each Purchaser, together
with the Warrants (as defined in Section 2 hereof). Simultaneously with the
execution and delivery of the Notes, each Purchaser will deliver to the
Borrowers the face amount thereof by a cashier's or certified check, or by
wire transfer of immediately available funds to an account designated by the
Borrowers in a written notice, which notice shall be received by each
Purchaser at least one Business Day prior to the Closing Date, and the
Borrowers shall pay the Commitment Fee set forth opposite each Purchaser's
name on Schedule I hereto to each Purchaser as contemplated by and pursuant
to Section 7(n) below, together with the costs and expenses of Purchaser's
counsel as contemplated by and pursuant to Section 3(f) below.
(e) Several Commitments. The obligations of each Purchaser
hereunder shall be several and not joint and no Purchaser shall be liable or
responsible for the acts or defaults by any other Purchaser.
2. WARRANTS. In consideration of the purchase of Notes hereunder,
the Company agrees to issue warrants to each Purchaser to purchase that
number of shares of the Company's Common Stock, par value $.01 per share, set
forth opposite each such Purchaser's name on Schedule I hereto, at the
exercise price and subject to the terms and conditions more particularly set
forth in the Warrant attached hereto as Exhibit B and incorporated herein by
this reference (collectively the "Warrants").
3. CONDITIONS OF THE PURCHASER'S OBLIGATION AT THE CLOSING. The
obligation of each Purchaser to purchase and pay for the Notes at the Closing
is subject to the satisfaction of each of the following conditions as of or
prior to the Closing Date:
(a) Transaction Documents. The Purchasers shall have received
the following documents, each duly executed and delivered by all parties
thereto, and as applicable, sealed, attested, acknowledged, certified,
authenticated and otherwise satisfactory in form and content to the
Purchasers and their counsel, in their sole discretion (collectively, the
"Transaction Documents"):
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(i) Agreement. This Agreement;
(ii) Notes. The Notes in substantially the form as
Exhibit A attached hereto;
(iii) Warrants. The Warrants in substantially the form as
Exhibit B attached hereto;
(iv) Certificate of Borrowers' Secretary. A certificate
executed by the Secretary of Borrowers whereby such Secretary affirms that
attached to such certificate is an accurate copy of Borrowers' board
resolutions authorizing the sale of the Notes under this Agreement and all
other matters set forth in or contemplated by this Agreement and the other
Transaction Documents; and
(v) Other Items. Such other agreements, documents and
assurances as the Purchasers may reasonably request in connection with the
transactions described in or contemplated by the Transaction Documents.
(b) Foothill Capital Closing. The Borrowers shall have
consummated the transactions contemplated by that certain Loan and Security
Agreement of even date herewith ("Foothill Loan Agreement"), among Borrowers
and Foothill Capital Corporation, a California corporation ("Foothill").
(c) Subordination Agreement. The Purchasers shall have each
received a duly executed and delivered Subordination Agreement of even date
herewith by and between Foothill and each individual Purchaser.
(d) Representations and Warranties. The representations and
warranties of Borrowers contained herein and in the Foothill Loan Agreement
shall be true and correct in all material respects at and as of the Closing
Date as though then made.
(e) Events of Default. No default or event of default under
the Foothill Loan Agreement shall exist as of the Closing Date, nor shall any
default or event of default under the Foothill Loan Agreement result from the
purchase and sale of the Notes under this Agreement.
(f) Payment of Fees. Borrowers shall have paid to each
Purchaser the Commitment Fee set forth opposite each Purchaser's name on
Schedule I hereto, and all other fees, costs and expenses incurred by
Purchasers in connection with the negotiation, preparation and execution of
the Transaction Documents, including, without limitation, the fees and
expenses of Xxxxxxxxxxxx, Xxxxxx & Xxxx, P.C., counsel to Purchasers.
4. REPRESENTATIONS AND WARRANTIES. The Borrowers hereby jointly and
severally represent, warrant and covenant to each Purchaser as follows:
(a) Organization and Existence. (i) Company and B&F are
corporations duly incorporated, validly existing and in good standing under
the laws of Delaware, (ii) Bear, Hospital
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Systems, Life Support and Bicore are corporations duly incorporated, validly
existing and in good standing under the laws of California, (iii) each
Borrower is in good standing in all other jurisdictions in which it is
required to be qualified to do business as a foreign corporation, and (iv)
each Borrower has obtained all licenses and permits and has filed all
registrations necessary to the operation of its business.
(b) Authorization; Due Execution. Each Borrower is duly
authorized to execute and perform every Transaction Document to which it is a
party, and each Borrower is duly authorized to sell the Notes hereunder.
This Agreement and the other Transaction Documents have been duly authorized
by all requisite corporate action. Each Transaction Document has been duly
executed by a person duly authorized to do so.
(c) Approval of Governmental Bodies. No authorization or
approval or other action by, and no notice to or filing with, any
Governmental Authority or regulatory body is required for the due execution,
delivery and performance by each Borrower of the Transaction Documents or the
exercise by the Purchasers of their respective rights thereunder.
(d) Enforceability of Obligations. The Transaction Documents
are the legal, valid and binding obligation of each Borrower enforceable
against each in accordance with their respective terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the enforceability of
creditors' rights generally and subject to the discretion of courts in
applying equitable remedies.
(e) Legal Restraints. The execution, delivery and performance
by each Borrower of the Transaction Documents to which it is a party will not
violate or constitute a default under its articles of incorporation or
by-laws, any Material Agreement (including, without limitation, the Foothill
Loan Agreement), or any Material Law.
5. NEGATIVE COVENANTS. So long as any Obligations remain unpaid,
unless otherwise consented to in writing by Purchasers holding at least
seventy-five percent (75%) of the aggregate principal amount the Notes issued
hereunder, Borrowers jointly and severally covenant and agree that, without
the prior written consent of the Purchasers, no Borrower shall:
(a) Liens and Security Interests. Create or suffer to exist
any Lien upon or with respect to any of its assets or properties, whether now
owned or hereafter acquired, except for Permitted Liens (as defined in the
Foothill Loan Agreement); and
(b) Conflicting Agreements. Enter into any agreement any term
or condition of which conflicts with any provision of this Agreement or the
other Transaction Documents.
6. DEFAULT.
(a) Events of Default . Each of the following events shall
constitute an Event of Default hereunder:
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(i) Borrowers (or any one of them) shall fail to pay any
principal of or interest on any of the Notes when due; or
(ii) Borrowers (or any one of them) shall fail to make the
mandatory prepayment required under Section 1(b) of this Agreement or fail to
observe or perform any other agreement or covenant contained herein; or
(iii) Borrowers (or any one of them) shall fail to pay any
other monetary Obligations within five (5) days after notice thereof is given
to the Borrowers (or any of them); or
(iv) Any representation or warranty made or furnished by
any of the Borrowers (or their respective officers) in connection with this
Agreement or the other Transaction Documents shall prove to have been
incorrect or misleading in any material respect when made, or any such
representation or warranty shall become incorrect or misleading in any
material respect; or
(v) The Borrowers (or any one of them) shall: (i) fail to
pay any Debt (other than the Debt described in Sections 6(a)(i) and 6(a)(ii)
above) of the Borrowers, or any interest or premium thereon, when due
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after any applicable grace
period, specified in the agreement or instrument relating to such Debt; or
(ii) fail to perform or observe any covenant or condition on its part to be
performed or observed under any agreement or instrument relating to any such
Debt when required to be performed or observed, and such failure shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such failure to pay or perform or
observe is to accelerate or to permit the acceleration of the maturity of
such Debt; or any such Debt shall be declared to be due and payable or
required to be prepaid (other than by a regularly scheduled required
prepayment) prior to the stated maturity thereof; or
(vi) Any Borrower shall cease to be solvent or shall
suffer the appointment of a receiver, trustee, custodian or similar
fiduciary, or shall make an assignment for the benefit of creditors, or any
petition for an order for relief shall be filed by or against any Borrower
under the federal bankruptcy code or any similar state insolvency statute (if
against any Borrower, the continuation of such proceeding for more than sixty
(60) days), or any Borrower shall make any offer of settlement, extension or
composition to their respective unsecured creditors generally; or
(vii) There shall occur a cessation of a material part of
the business of any Borrower for a period which has a Material Adverse Effect
on such Borrowers' capacity to continue its business on a profitable basis;
or any Borrower shall suffer the loss or revocation of any license or permit
now held or hereafter acquired by such Borrower which is necessary to the
continued or lawful operation of its business; or any Borrower shall be
enjoined, restrained or in any way prevented by court, governmental or
administrative order from conducting all or any material part of its business
affairs; or any material lease or agreement pursuant to which any Borrower
leases, uses or occupies any property shall be canceled or terminated prior
to the expiration of its stated term; or
(viii) Any Borrower shall challenge or contest in any
action, suit or proceeding the validity or enforceability of this Agreement
or any of the other Transaction Documents or the legality or enforceability
of any of the Obligations thereunder; or
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(ix) The occurrence of any event or circumstance in which
Purchasers holing at least 75% of the aggregate principal balance of the
Notes reasonably believe has or may have a Material Adverse Effect on any
Borrower.
(b) Acceleration; Notice to Holders . Upon the occurrence of
an Event of Default, any Holder may declare the outstanding principal balance
of the Notes, all interest thereon and all other Obligations to be forthwith
due and payable, whereupon the outstanding principal balance of each Note,
all such interest thereon and all such other Obligations shall become and be
forthwith due and payable, without presentment, protest or further notice or
demand of any kind, all of which are hereby expressly waived by the
Borrowers. When any Event of Default described in Section 6(a) above has
occurred, or if any Holder or the holder of any other evidence of
indebtedness of any of the Borrowers gives any notice or takes any other
action with respect to a claimed default, the Borrowers jointly and severally
agree to give notice with three (3) Business Days of such event to all
Holders.
7. MISCELLANEOUS.
(a) Definitions. Unless the context otherwise requires, the
terms hereinafter set forth when used herein shall have the following
meanings and the following definitions shall be equally applicable to both
the singular and plural forms of any of the terms herein defined:
"Business Day" shall mean any day, other than a Saturday or
Sunday, on which the New York Stock Exchange is not required to be closed.
"Debt" shall mean with respect to any Borrower, without
duplication, all indebtedness, liabilities and obligations of such Borrower
which in accordance with GAAP are required to be classified upon a balance
sheet of such Borrower as liabilities of such Borrower, and in any event
shall include all: (i) obligations of such Borrower for borrowed money or
which have been incurred connection with the purchase or other acquisition of
assets, (ii) obligations secured by any Lien on, or payable out of the
proceeds of or production from, any assets owned by any Borrower, (iii)
obligations under capital leases which shall have been or should be, in
accordance with GAAP, recorded as capital leases, (iv) indebtedness,
liabilities and obligations of third parties, including joint ventures and
partnerships, of which a Borrower is a venturer or general partner, recourse
to which may be had against such Borrower, (v) obligations created or arising
under any conditional sale or other title retention agreement with respect to
assets acquired by a Borrower, notwithstanding the fact that the rights and
remedies of the seller, lender or lessor under such agreement in the event of
default are limited to repossession or sale of such asset, (vi) indebtedness,
liabilities and obligations of any Borrower under guarantees, (vii) unpaid
reimbursement obligations of a Borrower with respect to letters of credit
issued for the account of any Borrower, and (viii) all other obligations or
items which, in accordance with GAAP, would be shown on the liability side of
a balance sheet as of the date of the incurrence thereof.
"Governmental Authority" shall mean the federal government
of the United States; the government of any foreign country that is
recognized by the United States or is a member of the United Nations; any
state of the United States; any local government or municipality within the
territory or under the jurisdiction of any of the foregoing; any department,
agency, division or
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instrumentality of any of the foregoing; and any court whose orders or
judgments are enforceable by or within the territory of any of the foregoing.
"Holder" shall mean any Person which is, at the time of
reference, the registered Holder of any Note.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, security interest,
encumbrance, lien (statutory or other), preference, priority or other
security agreement or preferential arrangement of any kind or nature
whatsoever including, without limitation, any conditional sale or other title
retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing and the filing of any financing
statement under the Uniform Commercial Code as adopted and in force in the
State of Missouri or comparable laws of any jurisdiction.
"Material Adverse Effect" shall mean, with respect to any
event or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, investigation or proceeding), a material
adverse effect on (i) the business, operations, revenues, financial
condition, property, or business prospects of any Borrower (ii) the ability
of any Borrower to timely pay or perform its Obligations generally,
including, the ability of any Borrower to pay or perform any of its
Obligations to the Purchasers, or (iii) the rights and remedies of the
Purchasers under this Agreement or any other Transaction Document.
"Material Agreement" shall mean any contract, note, deed or
other agreement or undertaking or any security to which a Borrower is a party
or by which a Borrower is bound which, if violated or breached, would have a
Material Adverse Effect on such Borrower.
"Material Law" shall mean any law whose violation by a
Borrower would have a Material Adverse Effect.
"Obligations" shall mean all loans and all other advances,
debts, liabilities, obligations, covenants and duties owing, arising, due or
payable from the Borrowers to the Purchasers of any kind or nature, present
or future, joint and/or several whether or not evidenced by any note, letter
of credit, guaranty or other instrument, whether arising under this
Agreement or any of the other Transaction Documents or otherwise, and whether
direct or indirect (including those acquired by assignment), absolute or
contingent, primary or secondary, due or to become due, now existing or
hereafter arising and however acquired, and all replacements, extensions,
amendments and other modifications in respect of any of the foregoing. The
term includes, without limitation, all interest, charges, expenses, fees,
attorneys' fees and any other sums chargeable to the Borrowers under any of
the Transaction Documents.
"Person" shall mean an individual, partnership,
corporation, trust, limited liability company or unincorporated organization,
and any Governmental Authority.
"Subsidiary" of a Person means a corporation, partnership,
limited liability company or other entity in which that Person directly or
indirectly owns or controls the shares of stock or other ownership interests
having ordinary voting power to elect a majority of the board of
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directors (or appoint other comparable managers) of such corporation,
partnership, limited liability company or other entity.
(b) Notices. Except as otherwise provided herein, all notices,
requests and demands to or upon a party hereto to be effective shall be in
writing and shall be personally delivered, mailed by certified or registered
mail, return receipt requested, sent prepaid by reliable courier or sent by
facsimile transmission. Unless otherwise expressly provided herein, notices
shall be deemed to have been validly given when delivered against receipt;
or, in the case of mailing, three (3) Business Days after deposit in the mail
in the continental United States, postage prepaid; or, in the case of
reliable courier, on the Business Day after the courier accepts delivery of
such item for Business Day delivery; or in the case of facsimile
transmission, when sent against confirmation of receipt prior to 5:00 p.m.
local time at the recipient's office, in each case addressed and/or
telecopied to at the address or telecopy number set forth on the signature
pages hereof, or to such other address or telecopy number as each party may
designate for itself by like notice in accordance with this Section 7(b).
(c) Indemnity. The Borrowers hereby jointly and severally
agree to indemnify the Purchasers and their agents and hold Purchasers and
other indemnities harmless from and against any liability, loss, expense,
damage, suit, action or proceeding ever suffered or incurred by the
Purchasers or such other indemnities as the result of any Borrowers' failure
to observe, perform or discharge any of its respective duties under any of
the Transaction Documents or any misrepresentation made by or on behalf of
Borrowers under any of the Transaction Documents. The joint and several
obligation of the Borrowers under this Section 7(c) shall survive the payment
in full of the Obligations and the termination of this Agreement.
(d) Modification of Agreement. This Agreement may not be
modified, altered or amended, except by an agreement in writing signed by
each of the Borrowers and each of the Purchasers. No Borrower may sell,
assign or transfer any interest in this Agreement and any of the other
Transaction Documents, or any portion thereof, including, without limitation,
any of its rights, title, interests, remedies, powers, and duties hereunder
or thereunder. Each Borrower hereby consents to any Purchaser's sale,
assignment, transfer or other disposition, at any time or times thereafter,
of this Agreement and any of the other Transaction Documents, or of any
portion hereof or thereof, including, without limitation, any Purchaser's
rights, title, interests, remedies, powers and duties hereunder or
thereunder.
(e) Survival of Representations and Warranties. All
representations and warranties contained herein or made in writing by any
party in connection herewith shall survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby,
regardless of any investigation made by the Purchasers or on their behalf.
(f) Successors and Assigns. Except as otherwise expressly
provided herein, all covenants and agreements contained in this Agreement by
or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto whether so
expressed or not. In addition, and whether or not any express assignment has
been made, the provisions of this Agreement which are for the Purchaser's
benefit as a purchaser or Holder are also for the benefit of, and enforceable
by, any subsequent Holder.
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(g) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
(h) Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not
contain the signatures of more than one party, but all such counterparts
taken together shall constitute one and the same Agreement.
(i) Descriptive Headings; Interpretation. The descriptive
headings of this Agreement are inserted for convenience only and do not
constitute a Section of this Agreement. The use of the word "including" in
this Agreement shall be by way of example rather than by limitation.
(j) Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement and the exhibits and schedules
hereto shall be governed by the internal law, and not the law of conflicts,
of the State of Missouri.
(k) Complete Agreement. This Agreement, the Transaction
Documents and the other documents delivered or to be delivered pursuant
hereto or thereto embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have
related to the subject matter hereof or thereof in any way.
(l) Representation. Because all parties hereto have been
represented by counsel in connection with the negotiation and preparation of
this Agreement, this Agreement shall be construed without regard to any
presumption against the party drafting the same.
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(m) Multiple Borrowers.
(i) Each Borrower agrees that it is jointly and
severally, directly, and primarily liable to the Purchasers for payment in
full of the Obligations and that such liability is independent of the duties,
obligations, and liability of each and all of the other joint and several
Borrowers. The Purchasers may bring a separate action or actions on the
Obligations against each, any, or all of the Borrowers, whether action is
brought against any other or all of such Borrowers or any one or more of the
Borrowers is or is not joined therein.
(ii) Each Borrower agree that any release that may be
given by any Purchaser to any one or more of the Borrowers shall not release
any other Borrowers from its obligations hereunder.
(iii) Each Borrower hereby waives any right to assert
against any Purchaser any right of setoff or other claim that such Borrower
individually may now or any time hereafter have against another Borrower or
in any manner or way whatsoever, and hereby waives any right of subrogation
against any other Borrowers.
(iv) Any and all present and future debts and other
obligations of any Borrower to any other Borrower are hereby subordinated to
the full payment and performance of the Obligations; provided, however, such
debt and other obligations may be incurred and repaid, subject to the terms
of this Agreement, as long as no Event of Default shall have occurred and not
have been waived.
(v) Each Borrower is presently informed as to the
financial condition of each of the other Borrowers and of all other
circumstances that a diligent inquiry would reveal and that bear upon the
risk of nonpayment of the Obligations. Each Borrower hereby waives any and
all rights it may have to require any Purchaser to disclose to such Borrowers
any information that any such Purchaser may now or hereafter acquire
concerning the condition or circumstances of any of the Borrowers.
(vi) Except as expressly provided herein, each Borrower
waives all rights to notices of default, existence, creation, or incurring of
new or additional indebtedness and all other notices of formalities to which
such Borrower may, as a joint and several Borrower hereunder, be entitled.
(n) Commitment Fee. Simultaneously with consummation of the
purchase and sale of the Notes as contemplated hereunder, the Borrowers shall
pay to each Purchaser a commitment fee equal to three percent (3%) of the
principal amount of the Note set forth opposite each Purchaser's name on
Schedule I hereto in consideration of each Purchaser's consummation thereof
("Commitment Fee"). The Commitment Fee shall be fully earned and
non-refundable. The Commitment Fee shall be payable by cashier's or
certified check, or by wire transfer of immediately available funds to an
account designated by each Purchaser in a written notice, which notice shall
be received by the Borrowers at least one Business Day prior to the Closing
Date.
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(o) Reimbursement of Expenses . If, at any time or times prior
or subsequent to the date hereof, regardless of whether or not an Event of
Default then exists or any of the transactions contemplated hereunder are
concluded, the Purchasers employ counsel for advice or other representation,
or incur legal expenses or other costs or out-of-pocket expenses in
connection with: (i) the negotiation and preparation of this Agreement and
any of the other Transaction Documents, any amendment of or modification of
this Agreement or any of the other Transaction Documents; or (ii) any
litigation, contest, dispute, suit, proceeding or action (whether instituted
by a Purchaser, any Borrower or any other Person) in any way relating to this
Agreement or any of the other Transaction Documents or any Borrowers'
affairs; or (iii) any bankruptcy or other insolvency proceeding, contest,
dispute, suit, litigation or action (whether instituted by a Purchaser, any
Borrower is commenced by or against any Borrower under the Federal Bankruptcy
Code and/or any similar state insolvency statute; then, in any such event,
the attorneys' fees arising from such services and all expenses, costs,
charges and other fees of such counsel or of each Purchaser or relating to
any of the events or actions described in this Section shall be jointly and
severally payable, on demand, by Borrowers to such Purchaser, and shall be
additional Obligations hereunder.
(p) Extension of Note. Upon the expressed maturity of the
Notes (i.e., six (6) months after the Closing Date), the Borrowers may elect
to extend the maturity of the Notes for an additional thirty (30) days
thereafter as long as no Event of Default has occurred and is continuing and
provided the Borrowers pay to each Purchaser an extension fee equal to one
percent (1%) of the principal amount of the Note set forth opposite each
Purchaser's name on Schedule I hereto by cashier's or certified check.
(q) Incorporation by Reference. All of the terms of the other
Transaction Documents are incorporated in and made a part of this Agreement
by reference; provided, however, that to the extent of any inconsistency
between this Agreement and such other Transaction Documents, this Agreement
shall govern.
(r) SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(i) TO THE FULL EXTENT PERMITTED BY LAW, EACH BORROWER
HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON ADVICE OF
COMPETENT COUNSEL, (A) SUBMITS TO PERSONAL JURISDICTION IN THE STATE OF
MISSOURI OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR
RELATING TO THIS AGREEMENT, (B) AGREES THAT ANY SUCH ACTION, SUIT OR
PROCEEDING MAY BE BROUGHT IN ANY STATE COURT OF COMPETENT JURISDICTION
SITTING IN ST. LOUIS COUNTY OR ANY FEDERAL COURT OF COMPETENT JURISDICTION
SITTING IN THE EASTERN DISTRICT OF THE STATE OF MISSOURI, (C) SUBMITS TO THE
JURISDICTION OF SUCH COURTS, AND (D) TO THE FULLEST EXTENT PERMITTED BY LAW,
AGREES THAT IT WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY FORUM
OTHER THAN THE FOREGOING FORUMS (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF
ANY PURCHASER TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM).
EACH BORROWER HEREBY FURTHER CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR OTHER LEGAL
PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO THE
BORROWERS AT THE ADDRESS FOR NOTICES DESCRIBED IN
11
SECTION 7(b) HEREOF, AND CONSENT AND AGREE THAT SUCH SERVICE SHALL CONSTITUTE
IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT
THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED
BY LAW.)
(ii) TO THE FULL EXTENT PERMITTED BY LAW, EACH BORROWER
HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF
COMPETENT COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN
ANY WAY RELATING TO THIS AGREEMENT OR ANY CONDUCT, ACT OR OMISSION OF ANY
PURCHASER OR BORROWERS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS,
PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS
AFFILIATED WITH ANY PURCHASER OR BORROWERS, IN EACH OF THE FOREGOING CASES,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
(s) Facsimile Signatures. A signature of a party to this
Agreement sent by facsimile or other electronic transmission shall be deemed
to constitute an original and fully effective signature of such party.
(t) Statutory Notice. The following notice is given pursuant
to Section 432.045 of the Missouri Revised Statutes; nothing contained in
such notice shall be deemed to limit or modify the provisions of the Loan
Documents.
ORAL AGREEMENTS OR COMMITMENTS TO LEND MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND
OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWERS) AND
US (PURCHASERS) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS
WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS
THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US,
EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first written above.
("BORROWERS") ("PURCHASERS")
ALLIED HEALTHCARE WOODBOURNE PARTNERS, L.P., a
PRODUCTS, INC. Missouri limited partnership
/s/ Xxxxx X. Xxxxx
By: ______________________________
Name: ______________________________ By:
Title: ______________________________ XXXXXXX MANAGEMENT COMPANY, its
general partner
B&F MEDICAL PRODUCTS, INC.
/s/ Xxxx X. Xxxx
/s/ Xxxxx X. Xxxxx By: ________________________
By: ______________________________ Name: Xxxx X. Xxxx
Name: ______________________________ Title: President
Title: ______________________________
BEAR MEDICAL SYSTEMS, INC.
/s/ Xxxxx X. Xxxxx Notice Address:
By: ______________________________ Xxxxxxx Management Company
Name: ______________________________ 000 Xxxxx Xxxxxxxx - Xxxxx 000
Title: ______________________________ Xx. Xxxxx, XX 00000
By: /s/ Xxx Xxx
HOSPITAL SYSTEMS, INC. ____________________________
Xxx Xxx
/s/ Xxxxx X. Xxxxx
By: ______________________________
Name: ______________________________
Title: ______________________________ By: /s/ Xxxxxx X. Xxxxxxxxx
____________________________
Xxxxxx X. Xxxxxxxxx
LIFE SUPPORT PRODUCTS, INC.
/s/ Xxxxx X. Xxxxx
By: ______________________________ By: /s/ Xxxxxx X. Xxxxxxx
Name: ______________________________ ____________________________
Title: ______________________________ Xxxxxx X. Xxxxxxx
Notice Address for Xxx Xxx, Xxxxxx
X. Xxxxxxxxx and Xxxxxx X. Xxxxxxx:
Xxx Xxxxxxxxx
Harbour Group, Ltd.
0000 Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
With a copy to:
Xxxxxxxxxxxx, Xxxxxx & Xxxx, P.C.
00 Xxxxx Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
13
BICORE MONITORING SYSTEMS, INC.
/s/ Xxxxx X. Xxxxx
By: ______________________________
Name: ______________________________
Title: ______________________________
Notice Address for all Borrowers:
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
With a copy to:
Dickstein, Shapiro, Xxxxx &
Xxxxxxxx, LLP
0000 X. Xxxxxx XX
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
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SCHEDULE I
Purchasers
Principal
Name of Purchaser Amount of Note Commitment Fee Warrants
----------------- -------------- -------------- --------
Woodbourne Partners, L.P. $2,000,000.00 $60,000.00 25,000
Xxx Xxx $2,750,000.00 $82,500.00(1) 34,376
Xxxxxx X. Xxxxxxxxx $ 125,000.00 $ 3,750.00 1,562
Xxxxxx X. Xxxxxxx $ 125,000.00 $ 3,750.00 1,562
--------
(1) The Commitment Fee was waived by the named Purchaser.
15
