EXHIBIT 10.9
SECURITIES PLEDGE AGREEMENT
THIS SECURITIES PLEDGE AGREEMENT is dated this 26th day of October,
2001, by and between XXXXXXXX X. XXXX (the "Pledgor") and BANK OF AMERICA, N.A.
(the "Pledgee").
W I T N E S S E T H:
WHEREAS, Pledgor executed that certain Pledge Agreement dated June 6,
2000 between Pledgor, as pledgor and HORIZON MEDICAL PRODUCTS, INC. (the
"Borrower") as pledgee covering the Pledged Securities to secure a Promissory
Note dated June 6, 2000 in the amount of $900,000;
WHEREAS, Borrower has previously assigned the Pledged Securities to
Pledgee pursuant to a Pledge and Assignment of Note and Collateral dated June 6,
2000;
WHEREAS, accordingly, Pledgee is currently the holder of the Pledged
Securities pursuant to the Pledge and Assignment of Note and Collateral from
Borrower dated June 6, 2000 as acknowledged by Pledgor in that certain Consent
to Assignment of Note and Collateral dated June 6, 2000;
WHEREAS, Borrower has entered into a certain loan evidenced by that
certain Promissory Note dated May 26, 1998, made by Borrower to the order of
Pledgee in the principal face amount of Fifty Million Dollars ($50,000,000)
(hereinafter referred to as the "Note"), and as further evidenced by that
certain Amended and Restated Credit Agreement, dated as of May 26, 1998, (the
"Credit Agreement") 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 the Third
Amendment to the Amended and Restated Credit Agreement and Waiver dated March
29, 2000 the Fourth Amendment to the Amended and Restated Credit Agreement and
Waiver dated June 6, 2000 the Fifth Amendment to the Amended and Restated Credit
Agreement and Waiver dated August 14, 2000 and by that certain Forbearance
Agreement dated March 30, 2001, as amended by that certain First Amendment to
Forbearance Agreement dated March 31, 2001 and that certain Second Amendment to
Forbearance Agreement dated October 16, 2001 (the "Loan");
WHEREAS, Pledgor has executed and delivered to Pledgee a Limited
Guaranty of even date herewith to guaranty payment of the Note and Loan (the
"Guaranty");
WHEREAS, as additional security for Pledgor's obligations to perform
its obligations under the Guaranty, the Pledgor agreed to execute this Agreement
and, pursuant hereto, to pledge the Pledged Securities, as defined in this
Agreement, as security for the prompt satisfaction of all of Pledgor's
obligations pursuant to the Guaranty and this Agreement;
WHEREAS, accordingly, Pledgee is the holder of the Pledge Securities
pursuant to this Securities Pledge Agreement and the Pledge and Assignment of
Note and Collateral dated June 6, 2000.
NOW, THEREFORE, in consideration of the foregoing, the parties
agree as follows:
1. Definitions. The term "Pledged Securities" shall mean the
securities described in Schedule I hereto, together with all certificates,
options, rights, or other distributions issued as an addition to, in
substitution or in exchange for, or on account of, any such securities, and all
proceeds of all of the foregoing, now or hereafter owned or acquired by the
Pledgor.
2. Agreement to Pledge.
(a) As security for the prompt payment of (i) any and all
liabilities, obligations or indebtedness of Pledgor under the Guaranty of the
Note with respect to the Loan, and (ii) any and all costs, expenses or amounts
owed under or with respect to any of the foregoing, or under or with respect to
this Securities Pledge Agreement, (all of the foregoing herein collectively
referred to as the "Secured Indebtedness"), the Pledgor hereby pledges,
hypothecates, assigns, transfers and delivers unto Pledgee, its successors and
assigns the Pledged Securities in form transferable for delivery, together with
all right, title, interest, powers, privileges and preferences pertaining or
incidental thereto, and grants the Pledgee a lien on and security interest
therein.
(b) If the Pledgor shall become entitled to receive or
shall receive, in connection with any of the Pledged Securities, any:
(i) Certificate representing such Pledged
Securities, including, but without limitation, any certificate
representing a dividend or in connection with any increase or reduction
of capital, reclassification, merger, consolidation, sale of assets,
combination of shares, stock split, spin-off or split-off;
(ii) Option, warrant, or right, whether as an
addition to or in substitution or in exchange for any of the Pledged
Securities, or otherwise;
(iii) Dividend or distribution payable in
property, including securities issued by other than the issuer of any
of the Pledged Securities; or
(iv) Extraordinary or liquidating dividends or
distributions, then:
the Pledgor shall accept the same as the Pledgee's agent, in trust for the
Pledgee, and shall deliver them forthwith to the Pledgee in the exact form
received with, as applicable, the Pledgor's endorsement when necessary, or
appropriate stock powers duly executed in blank, to be held by the Pledgee,
subject to the terms hereof, as part of the Pledged Securities.
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(c) At any time from and after the occurrence of a
default under the Note (an "Event of Default"), the Pledgee, at its option, may
have any or all of the Pledged Securities registered in its name or that of its
nominee, and the Pledgor hereby covenants that, upon the Pledgee's request, the
Pledgor will cause the issuer of the Pledged Securities to effect such
registration. From and after an Event of Default, whether or not the Pledged
Securities shall have been registered in the name of the Pledgee or its nominee,
the Pledgee or its nominee shall have with respect to the Pledged Securities the
right to exercise all voting rights and all other corporate rights and all
conversion, exchange, subscription or other rights, privileges or options
pertaining thereto as if he were the absolute owner thereof, including, without
limitation, the right to exchange any or all of the Pledged Securities upon the
merger, consolidation, reorganization, recapitalization or other readjustment of
the issuer thereof, or upon the exercise by such issuer of any right, privilege,
or option pertaining to any of the Pledged Securities, and, in connection
therewith, to deliver any of the Pledged Securities to any committee,
depository, transfer agent, registrar or other designated agency upon such terms
and conditions as he may determine, all without liability except to account for
property actually received by it; but the Pledgee shall have no duty to exercise
any of the aforesaid rights, privileges or options and shall not be responsible
for any failure to do so or delay in so doing.
(d) Upon the occurrence of an Event of Default, the
Pledgee may, without demand of performance or other demand, advertisement, or
notice of any kind (except the notice specified below of time and place of
public or private sale) to or upon the Pledgor or any other person (all of which
are, to the extent permitted by law, hereby expressly waived), forthwith realize
upon the Pledged Securities or any part thereof, and may forthwith, or agree to,
retain the Pledged Securities in satisfaction of the Secured Indebtedness, or
sell or otherwise dispose of and deliver the Pledged Securities or any part
thereof or interest therein, in one or more parcels at public or private sale or
sales, at any exchange, broker's board or at any of the Pledgee's offices or
elsewhere, at such prices and on such terms (including, but without limitation,
a requirement that any purchaser of all of any part of the Pledged Securities
purchase the shares constituting the Pledged Securities for investment and
without any intention to make a distribution thereof) as he may deem best, for
cash or on credit, or for future delivery without assumption of any credit risk,
with the right to the Pledgee or any purchaser to purchase upon any such sale
the whole or any part of the Pledged Securities free of any right or equity of
redemption in the Pledgor, which right or equity is hereby expressly waived and
released.
(e) The proceeds of any such disposition or other action
by the Pledgee shall be applied as follows:
(i) First, to the costs and expenses incurred in
connection therewith or incidental thereto or to the care or
safekeeping of any of the Pledged Securities or in any way
relating to the rights of the Pledgee hereunder, including
reasonable attorneys' fees and legal expenses;
(ii) Second, to the repayment of the Secured
Indebtedness;
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(iii) Third, to the payment of any other amounts
required by applicable law; and
(iv) Fourth, to the Pledgor to the extent of any
surplus proceeds.
(f) The Pledgee need not give more than five (5) days'
notice of the time and place of any public sale or of the time after which a
private sale may take place, which notice the Pledgor hereby deems reasonable.
(g) The Pledgee shall have the right, for and in the
name, place and stead of the Pledgor, and the Pledgor hereby grants Pledgee
power of attorney, as set forth in Section 7, to execute endorsements,
assignments or other instruments of conveyance or transfer with respect to all
or any of the Pledged Securities.
(h) The Pledgor recognizes that the Pledgee may be unable
to effect a public sale of all or a part of the Pledged Securities and may be
compelled to resort to one or more private sales to a restricted group of
purchasers who will be obligated to agree, among other things, to acquire the
Pledged Securities for their own account, for investment and not with a view to
the distribution or resale thereof. The Pledgor acknowledges that any such
private sales may be at prices and on terms less favorable to the Pledgee than
those of public sales, and agrees that such private sales shall be deemed to
have been made in a commercially reasonable manner and that the Pledgee has no
obligation to delay sale of any Pledged Securities to permit the issuer thereof
to register it for public sale under the Securities Act of 1933.
(i) The Pledgor and Pledgee recognize and agree that the
Pledged Securities have been previously pledged to Pledgee pursuant to a Pledge
and Assignment of Note and Collateral Agreement dated June 6, 2000 by and
between Borrower and Pledgee. Pledgee is currently holding the Pledged
Securities and Pledgee shall continue to hold the Pledged Securities as
collateral and security unless and until the Indebtedness as defined in the
Pledge and Assignment of Note and Collateral Agreement dated June 6, 2000 by and
between Borrower and Pledgee is fully paid and satisfied and the Secured
Indebtedness is fully paid and satisfied.
3. Pledgor's Warranties and Representations. The Pledgor
represents and warrants that:
(a) It has, and has duly exercised, all requisite power
and authority to enter into this Agreement, to pledge the Pledged Securities for
the purposes described in Section 2(a), and to carry out the transactions
contemplated by this Agreement;
(b) It is the legal and beneficial owner of all of the
Pledged Securities;
(c) All of the Pledged Securities are owned by the
Pledgor free of any pledge, mortgage, hypothecation, lien, charge, encumbrance
or security interest in such securities or the
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proceeds thereof, except for that granted hereunder and the prior pledge to
Borrower which has been assigned to Pledgee; and
(d) Upon delivery of the Pledged Securities to the
Pledgee or its agent, this Agreement shall create a valid first lien upon and
perfected security interest in the Pledged Securities and the proceeds thereof,
subject to no prior security interest, lien, charge or encumbrance, or agreement
purporting to grant to any third party a security interest in the property or
assets of the Pledgor which would include the Pledged Securities.
4. Pledgor's Covenants.
(a) The Pledgor hereby covenants that, until the Secured
Indebtedness has been repaid in full and the Note cancelled, he will not sell,
convey, or otherwise dispose of any of the Pledged Securities or any interest
therein or create, incur, or permit to exist any pledge, mortgage, lien, charge,
encumbrance or any security interest whatsoever in or with respect to any
Pledged Securities or the proceeds thereof, other than created hereby.
(b) The Pledgor warrants and will, at his own expense,
defend the Pledgee's right, title, special property and security interest in and
to the Pledged Securities against the claims of any person, firm, corporation or
other entity.
5. Notices in Regard of Pledged Securities. The Pledgor will
promptly deliver to the Pledgee all written notices, and will promptly give the
Pledgee written notice of any other notices, received by him with respect to
Pledged Securities, and the Pledgee will promptly give like notice to the
Pledgor of any such notices received by him or his nominee.
6. Agreement to Execute Further Documents. The Pledgor shall at
any time, and from time to time, upon the written request of the Pledgee,
execute and deliver such further documents and do such further acts and things
as the Pledgee may reasonably request to effect the purposes of this Agreement,
including, without limitation, delivering to the Pledgee upon the occurrence of
an Event of Default irrevocable proxies with respect to the Pledged Securities
in form satisfactory to the Pledgee. Until receipt thereof, this Agreement shall
constitute the Pledgor's proxy to the Pledgee or his nominee to vote all of the
Pledged Securities then registered in the Pledgor's name.
7. Power of Attorney. From and after an Event of Default, the
Pledgor hereby appoints the Pledgee as the Pledgor's attorney-in-fact for the
purpose of carrying out the provisions of this Agreement and taking any action
and executing any instrument which either may deem necessary or advisable to
accomplish the purposes hereof. Without limiting the generality of the
foregoing, the Pledgee shall have the right and power to receive, endorse and
collect all checks and other orders for the payment of money made payable to the
Pledgor representing any interest or dividend or other distribution payable in
respect of the Pledged Securities or any part thereof and to give full discharge
for the same.
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8. Return of Pledged Securities. Pledgor acknowledges and agrees
that the Pledged Securities have been previously assigned to Pledgee pursuant to
a Pledge and Assignment of Note and Collateral between Borrower and Pledgee
dated June 6, 2000. Accordingly, Pledgee is currently holding the Pledged
Securities and Pledgee shall continue to hold the Pledged Securities as
collateral and security unless and until the Indebtedness as defined in the
Pledge and Assignment of Note and Collateral Agreement dated June 6, 2000 by and
between Borrower and Pledgee is fully paid and satisfied and the Secured
Indebtedness is fully paid and satisfied. Upon the repayment in full of all of
the Indebtedness as defined in the Pledge and Assignment of Note and Collateral
Agreement dated June 6, 2000 by and between Borrower and Pledgee, the Secured
Indebtedness and the satisfaction of all additional costs and expenses of the
Pledgee as provided herein, this Agreement shall terminate and the Pledgee shall
deliver to the Pledgor, at the Pledgor's expense, such of the Pledged Securities
as shall not have been sold or otherwise applied pursuant to this Agreement.
9. General.
(a) Beyond the exercise of reasonable care to assure the
safe custody of the Pledged Securities while held hereunder, the Pledgee shall
have no duty or liability to preserve rights pertaining thereto and shall be
relieved of all responsibility for the Pledged Securities upon surrendering it
or them or tendering surrender of it or them to the Pledgor.
(b) No course of dealing between the Pledgor and the
Pledgee, nor any failure to exercise, nor any delay in exercising, any right,
power or privilege of the Pledgee hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, power or privilege
hereunder or thereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
(c) The rights and remedies provided herein are
cumulative and are in addition to and not exclusive of any rights or remedies
provided by law, including, but without limitation, the rights and remedies of a
secured party under the Uniform Commercial Code.
(d) The provisions of this Agreement are severable, and
if any clause or provision shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision or part thereof in such jurisdiction and shall not
in any manner affect such clause or provision in any other jurisdiction or any
other clause or provision in this Agreement in any jurisdiction.
(e) Any notice required or permitted by this Securities
Pledge Agreement shall be effective if mailed, postage prepaid, by registered or
certified mail, return receipt requested, or if delivered to the Pledgor or
Pledgee at their addresses specified below, or at such other addresses as the
Pledgor or the Pledgee may theretofore have designated in writing and given in
like manner to the other.
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(f) This Agreement shall inure to the benefit of and
shall be binding upon the successors and assigns of the parties hereto.
(g) This Agreement shall be construed in accordance with
the substantive law of the State of Georgia without regard to principles of
conflicts of law and is intended to take effect as an instrument under seal.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date and year first above written.
Signed, sealed, sworn to and delivered PLEDGOR:
in the presence of:
(SEAL)
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Witness XXXXXXXX X. XXXX
Address:
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Notary Public
3935 Paces Manor
Notarized this 26th day of October, 2001. Xxxxxxx, Xxxxxxx 00000
My commission expires:
(NOTARIAL SEAL)
Signed, sealed, sworn to and delivered PLEDGEE:
in the presence of:
BANK OF AMERICA, N.A.
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Witness
By:
Name:
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Notary Public Title:
---------------------------
Notarized this __ day of October, 2001.
Address:
My commission expires:
000 Xxxxx Xxxxx Xxxxxx
(NOTARIAL SEAL) NC1-001-13-26
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
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EXHIBIT 10.10
SCHEDULE I
Number and Description of
Issuer Pledged Securities Name of Holder
------ --------------------------- --------------
Horizon Medical Products, Inc. 1,889,733 Shares of Class A Xxxxxxxx X. Xxxx
Common Stock, Certificate no. 73
POWER OF ATTORNEY TO TRANSFER SECURITIES
FOR VALUE RECEIVED, the undersigned, Xxxxxxxx X. Xxxx hereby
sells, assigns and transfers to _________________________________, 1,889,733
shares of capital stock, Certificate No. 73, standing in his name on the books
of Horizon Medical Products, Inc. and does hereby irrevocably constitute and
appoint any officer or transfer agent of the corporation the power of attorney
to transfer all said shares on the books of the within named corporation with
full power of substitution.
Signed, sealed, sworn to and
delivered in the presence of: (SEAL)
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XXXXXXXX X. XXXX
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Witness
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Notary Public
Notarized this 26th day of October, 2001.
My commission expires:
(NOTARIAL SEAL)
[Signature Guaranty]
