INTERCREDITOR AGREEMENT
This Intercreditor Agreement is entered into as of the 7th day of May,
1997, among SIRROM INVESTMENTS, INC. ("Sirrom"), a Tennessee corporation;
TULLIS- DICKERSON CAPITAL FOCUS, L.P. ("TDCF"), a Delaware limited partnership;
AMERICAN CONSOLIDATED LABORATORIES, INC. ("ACL"), a Florida corporation;
NOVAVISION, INC. ("NovaVision"), a North Carolina corporation; BIOPOLYMER
CORPORATION ("Biopolymer"), a Delaware corporation; SALVATORI OPHTHALMIC
MANUFACTURING CORPORATION ("SOMC"), a Florida corporation; and CAROLINA CONTACT
LENS, INC. ("CCL"), a North Carolina corporation (Sirrom and TCDF are referred
to herein collectively as the "Lenders," and ACL, NovaVision, Biopolymer, SOMC
and CCL are referred to herein collectively as the "Borrower Parties").
Recitals
A. The Borrower Parties are liable to Sirrom variously as co-borrowers
and as guarantors for the indebtedness evidenced by (i) that Secured Promissory
Note dated as of December 18, 1996 made by NovaVision payable to the order of
Sirrom in the original principal amount of $520,000, a copy of which is attached
hereto as Exhibit A, and (ii) that Secured Promissory Note dated as of the date
hereof made by ACL payable to the order of Sirrom in the original principal
amount of $1,575,000, a copy of which is attached as Exhibit B (these
obligations, collectively with all obligations under documents now or hereafter
further evidencing or securing those obligations, as they may hereafter be
extended, amended, modified or restated in accordance with this Agreement, are
referred to herein as the "Sirrom Debt").
B. The Borrower Parties are liable to TDCF variously as co-borrowers
and as guarantors for the indebtedness evidenced by that Amended and Restated
Promissory Note dated as of May ___, 1997, in the principal amount of $550,000,
a copy of which is attached as Exhibit C (this obligation, collectively with all
obligations under documents now or hereafter further evidencing or securing
those obligations, as they may hereafter be extended, amended, modified or
restated in accordance with this Agreement, are referred to herein as the "TDCF
Debt"; the Sirrom Debt and the TDCF Debt are referred to herein collectively as
the "Loans"; and the instruments described in recitals A and B are referred to
herein as the "Notes").
C. The parties intend that Sirrom act as collateral agent with respect
to the collateral instruments listed in Exhibit D hereto (the "Collateral
Documents") and that, upon the occurrence of a default or event of default under
either of the Loans upon their final maturity, or upon the occurrence of any
other default or event of default that occasions the acceleration of the
maturity of either of the Loans (each a "Collection Event"), Sirrom shall act as
collateral agent for the purpose of acting to collect the Loans, with the
Lenders sharing PARI PASSU in all net recoveries from these efforts.
Now, therefore, in consideration of the extensions of the Loans and for
other valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties agree as follows:
1. Definitions. In addition to the terms defined above, as used in this
Agreement, the following capitalized terms have the meanings set forth below:
"Agent" means Sirrom in its capacity as collateral agent under this
Agreement. The use of the term "Agent" in this manner is not intended to invoke
the laws of agency or to otherwise impose any duties upon Sirrom in this
capacity beyond those expressly provided for in this Agreement.
"Collateral" means all property in which a lien or security interest is
granted under the Collateral Documents.
"Loan Documents" means the Notes, the Collateral Documents and any
other documents evidencing or securing the Loans.
"Pro Rata" means in accordance with the respective total outstanding
balances of principal outstanding as of the occurrence of the Collection Event
"Restricted Amendments and Waivers" means modifications, amendments or
waivers of any provision of the Loan Documents that would (i) increase the
principal amount of the Loan, (ii) reduce the quality or quantity of the
Collateral or otherwise impair the Collateral in any way, (iii) modify covenants
as to make them more restrictive on a Borrower Party including, but not limited
to, the modification of financial covenants against the interests of a Borrower
Party, (iv) create new Events of Default or make existing Events of Default more
restrictive on a Borrower Party, (v) accelerate the due dates of any payments of
principal or interest, or (vi) increase the interest rate thereunder or create
or increase any other payment obligation (of interest, fees or otherwise) of a
Borrower Party.
"Required Lenders" means both of the Lenders.
2. Appointment of Agent. The Lenders hereby appoint Sirrom as Agent to
act as specified in this Agreement.
3. Agreements of the Lenders Regarding Administration of Loans. The
Lenders agree that, in the absence of a Collection Event, they shall each freely
administer their own Loans for their own accounts, except that (i) Agent shall,
pursuant to its role as collateral agent, be solely authorized to issue releases
of Collateral as may be necessary and permitted under the Loan Documents in the
ordinary course of business, subject to the approval of both Lenders as provided
further below in this Agreement, (ii) neither Lender shall receive or accept any
prepayment of its Loan, except on a Pro Rata basis, without the written consent
of the other Lender, (iii) neither Lender shall enter into any Restricted
Amendments and Waivers without the written consent of the other Lender, (iv)
neither Lender shall otherwise
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amend, waive or modify any of the Loan Documents relating to its Loan without
giving the other Lender concurrent written notice upon the execution thereof,
and (v) neither Lender shall directly or indirectly obtain additional security
or credit enhancement for the payment of its Loan in a manner that would prefer
that Lender over the other Lender. After the occurrence of a Collection Event,
Agent shall have the exclusive right to administer and collect the Loans, as
provided below in this Agreement.
4. Agreements Regarding Notices of Defaults. Each Lender agrees to give
the other Lender a copy of any notice to or from any Borrower Party that gives
notice of, waives, advises of a cure of or otherwise regards a default, event of
default, unmatured default or other event or condition that, with the giving of
notice, the passing of time, or both, would cause the occurrence of a default or
an event of default under that Lender's Loan.
5. Powers and Duties of Agent.
a) General Powers of Agent. Subject to the terms and
conditions of this Agreement, prior to and after the occurrence of a
Collection Event, Agent shall have the power and authority to (i)
retain possession of stock certificates and any other negotiable
Collateral or other Collateral that any Borrower party similarly
tenders to secure the Loans, for the benefit of both of the Lenders and
(ii) serve as the secured party of record for the benefit of both of
the Lenders with respect to UCC filings and other documentation
incidental to the securing of the Loans.
b) Powers of Agent Following a Collection Event. Upon the
occurrence of a Collection Event, the Lenders shall collaborate as to
an appropriate plan of action for the enforcement of the Loan
Documents. If the Lenders agree on a particular course of action, Agent
shall act in accordance with the wishes of the Lenders. If the Lenders
fail to agree on a course of action within a time determined by Agent
(but in no event less than five (5) days after the occurrence of the
Collection Event), or if circumstances arise that in Agent's judgment
require immediate action on Agent's part and make collaboration with
the Lenders impracticable, Agent shall take such action as Agent deems
to be in the best interests of the Lenders. In furtherance of its power
to collect the Loans, upon the occurrence of a Collection Event and
thereafter until the Lenders may otherwise jointly agree, Agent shall
have the exclusive right to (i) receive payments under and enforce the
Loan Documents, including, but not limited to, the rights to file suit
for collection of the Loans and to foreclose or take any other action
in the enforcement of any security interest or lien securing the Loans,
(ii) enter into amendments, modifications, settlements, compromises and
waivers with respect to the Loan Documents, (iii) file claims on
account of the Loans in any bankruptcy case or other proceeding
involving the Loans or join in the commencement of such a proceeding,
(iv) perform all other functions expressly imposed upon Agent in this
Agreement, and (v) perform all those other duties reasonably incidental
to the foregoing. Notwithstanding the foregoing, even after the
occurrence of a Collection Event, each Lender may without the consent
of the other Lender or of Agent (but
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with concurrent written notice thereto) take such action as may be
necessary to convert such Lender's Loan in full or in part to an equity
interest in one or more Borrower Parties in accordance with such
Lender's agreement with any one or more of the Borrower Parties.
c) Cooperation of the Lenders. The Lenders shall cooperate
with Agent in its performance of its duties under this Agreement and
shall assist Agent through the execution and delivery of such documents
and the performance of such other functions as may be reasonably
necessary to enable Agent to perform hereunder. Each Lender hereby
appoints Agent as such Lender's attorney-in-fact, with full power of
substitution, to take any action permitted Agent hereunder with respect
to the Loans and the Loan Documents.
d) Remittance by Agent and Lenders. All actions taken by Agent
shall inure to the benefit of the Lenders Pro Rata. Agent shall remit
to Lenders all amounts it receives in collecting the Loans, net of the
expenses for which it is entitled to payment under Section 8 hereof, at
least once each calendar month. Should any payments received by Agent
be recovered as preferences in bankruptcy or otherwise, Lenders shall
upon request pay to Agent the amount needed to comply with such
requirements.
6. Nature of Duties of Agent; Standard of Care.
a) Capacity of Agent. Agent's duties hereunder are
administrative and ministerial in nature, and Agent's capacity is that
of an independent contractor for the Lenders. Agent is not a trustee or
other fiduciary for the Lenders, and Agent has no duties whatsoever to
the Lenders except as expressly set forth in this Agreement. Agent
shall have no liability to the Lenders for any action or inaction
relating to this Agreement or the other Loan Documents, even for
matters arising from its ordinary negligence, except for actual losses
caused by its gross negligence or reckless or willful misconduct.
b) Limitations on Agent's Duties. Agent shall not be obligated
to take any action hereunder or under any other Loan Document (i) if
such action would, in the opinion of Agent, be contrary to applicable
law, this Agreement or the other Loan Documents, (ii) if it would
likely subject Agent to a tax in any jurisdiction where it is not then
subject to a tax, (iii) if it would likely require Agent to qualify to
do business in any jurisdiction where it is not then so qualified,
unless Agent receives security or indemnity satisfactory to it against
any tax or other liability in connection with such qualification or
resulting from the taking of such action in connection therewith, or
(iv) if it would likely subject Agent to IN PERSONAM jurisdiction in
any location where it is not then so subject.
c) Agent's Right to Require Instructions in Performance of
Duties. If Agent, in its sole and absolute discretion, requests
instructions from the Required
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Lenders with respect to any act or action (including the failure to
act) in connection with this Agreement, Agent shall be entitled, at its
option, to refrain from such action, or to continue such inaction,
unless and until Agent shall have received such instructions, and Agent
shall incur no liability by reason of so acting or refraining from
action. No Lender shall have any right of action whatsoever against
Agent as a result of Agent's acting or refraining from acting hereunder
or under any other Loan Document in accordance with the instructions of
the Required Lenders in such a case.
d) Agent's Reliance on Others in Performance of Duties. Agent
shall be entitled to rely, and shall be fully protected in relying,
upon any note, writing, resolution, notice, statement, consent,
certificate, telex, teletype or facsimile message, order or other
documentary, teletransmission or telephone message believed by it in
good faith to be genuine and correct and to have been signed, sent or
made by the proper person. Agent may consult with legal counsel
(including counsel for Borrower Parties), accountants and other experts
selected by it with respect to all matters pertaining to this Agreement
and the other Loan Documents and its duties hereunder and thereunder
and shall not be liable for any action taken or omitted to be taken by
it in good faith in accordance with the advice of such counsel
(including counsel for Borrower Parties), accountants or experts.
7. Sharing of Information. The Lenders and Agent shall share payment
information with one another respecting the Loans from time to time upon their
requests of one another to confirm the balances of the Loans and the payment
history thereof. Except for this obligation and as otherwise expressly provided
in this Agreement, the Lenders and Agent shall have no duty or responsibility,
either initially or on a continuing basis, to provide a Lender or Agent with any
credit or other information concerning the business, prospects, operations,
properties, financial or other condition or creditworthiness of the Borrower
Parties or any other person that may come into its possession. The Borrower
Parties agree that the Lenders and Agent may freely share with one another
information about the Loans.
8. Indemnification of Agent. To the extent Agent is not reimbursed by
or on behalf of Borrower Parties, and without limiting the obligation of the
Borrower Parties to do so, the Lenders will Pro Rata reimburse and indemnify
Agent, from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including attorneys' fees
and expenses) or disbursements of any kind or nature whatsoever that may at any
time (including at any time following the indefeasible repayment in full of the
Loans) be imposed on, incurred by or asserted against Agent in any way relating
to or arising out of this Agreement or any other Loan Document or the
transactions contemplated thereby or any action taken or omitted by Agent under
or in connection with any of the foregoing, and in particular will reimburse
Agent for out-of-pocket expenses promptly upon demand by Agent therefor, even if
incurred due to the ordinary negligence of Agent; provided, however, that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
finally determined by a court of competent jurisdiction and not subject to any
appeal or pursuant to arbitration to have resulted from Agent's gross negligence
or reckless
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or willful misconduct. Agent may offset any amounts due Agent by a Lender
against obligations of Agent to that Lender.
9. No Representations by Agent. Each Lender acknowledges that neither
Agent nor any of its officers, directors, employees, attorneys, accountants or
agents has made any representation or warranty to it regarding the Borrower
Parties, the Loans, the Collateral or otherwise relating to this Agreement.
Agent shall not be responsible to a Lender for any recitals, statements,
information, representations or warranties herein or in any other Loan Document
or in any document, instrument, certificate or other writing delivered in
connection herewith or therewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, priority or sufficiency of
this Agreement or any other Loan Document or the financial condition of the
Borrower Parties or any other person, or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of this Agreement or any other Loan Document, or the financial
condition of the Borrower Parties or any other person.
10. Independent Investigations by the Lenders. Each Lender acknowledges
that, independently and without reliance upon Agent or any other Lender and
based on such documents and information as it has deemed and may deem
appropriate, (i) it has made its own appraisal of and investigation into the
business, prospects, operations, properties, financial and other condition and
creditworthiness of the Borrower Parties in connection with its decision to
enter into this Agreement and extend credit to the Borrower Parties, and (ii) it
will continue to make its own credit analysis, appraisals and decisions in
taking or not taking action hereunder.
11. Agent in its Individual Capacity. With respect to its Loan, Agent
shall have the same rights and powers under the Loan Documents as any other
Lender or holder of a Note and may exercise the same as though it were not
performing the duties specified herein; and the terms "Lenders," "Required
Lenders," and any similar terms shall, unless the context clearly otherwise
indicates, include Agent in its individual capacity as a Lender.
12. Successor Agent. Agent may resign from that capacity at any time
upon sixty (60) days' prior written notice to the Borrower Parties and the
Lenders. Such resignation shall take effect upon the appointment of a successor
Agent as provided herein. The Required Lenders will, with ACL's approval (which
shall not be unreasonably withheld), appoint a successor Agent. Upon the written
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder and under
the other Loan Documents. After any retiring Agent's resignation as Agent, the
indemnity and exculpatory provisions of this Agreement shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent.
13. Sharing of Payments, etc. Each Lender agrees that if it shall,
through the exercise of a right of set-off, counterclaim or otherwise, obtain
payment with respect to the
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Loans which results in its receiving more than its Pro Rata Share of the
aggregate payments with respect to all of the Loans, then (a) such Lender shall
be deemed to have simultaneously purchased from the other Lender a share in the
Loans so that the amount of the Loans held by each of the Lenders shall continue
to equal their respective Pro Rata Shares, and (b) such other adjustments shall
be made from time to time as shall be equitable to insure that the Lenders share
such payments ratably. If a Lender remits payments to the other Lender under
this Section 13 and later is required to refund the same as a preferential
payment or otherwise, the other Lender who shared in the payment shall similarly
arrange their interests in the Loans to reverse the distribution to them as to
allow the originally remitting Lender to refund such payment.
14. Assignments and Participations. A Lender may assign all of its
interest in its Loan provided that the acquiring Lender shall expressly assume
full responsibility as a Lender hereunder. Such an assignment shall not release
the assigning Lender from any obligations to Agent arising from occurrences
prior to such assignment. A Lender may grant a security interest in its Loan
provided that the secured party takes such security interest subject to the
provisions of this Agreement.
15. Bankruptcy Provisions. Should any of the Borrower Parties become a
party to a case under the Bankruptcy Code, each Lender shall be entitled to file
its own claim, to the extent such a filing may be necessary. Agent shall review
each claim before being filed by a Lender to assure that the claim is filed on a
basis consistent with Agent's records and Agent's legal positions taken pursuant
to this Agreement. Should any of the Borrower Parties become a party to a
reorganization proceeding under the Bankruptcy Code, each Lender shall be
recognized as the holder of a separate claim for the purpose of the approval or
rejection of a plan under 11 U.S.C. ss. 1126, and shall vote such claim as
directed by Agent. Agent shall continue to administer the Loans on behalf of the
Lenders, as they may be amended by any adopted Plan of Reorganization.
16. Foreclosure of Collateral. In the event of a foreclosure of any
Collateral, Agent may issue a credit bid for the account of all of the Lenders,
up to the amount of the then outstanding Loans. Any property acquired at such a
foreclosure (or acquired by Agent through a conveyance in lieu of foreclosure)
shall be held and administered by Agent for the benefit of all of the Lenders
pursuant to the terms of this Agreement.
17. Legends. Concurrently with the execution hereof, each of the Notes
shall be marked with a legend stating as follows:
The obligations evidenced by this instrument are subject to that
Intercreditor Agreement dated as of May __, 1997, among SIRROM
INVESTMENTS, INC., a Tennessee corporation; TULLIS-DICKERSON CAPITAL
FOCUS, L.P., a Delaware limited partnership; AMERICAN CONSOLIDATED
LABORATORIES, INC., a Florida corporation; NOVAVISION, INC., a North
Carolina corporation; BIOPOLYMER CORPORATION, a Delaware corporation;
SALVATORI OPHTHALMIC MANUFACTURING
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CORPORATION, a Florida corporation; and CAROLINA CONTACT LENS, INC., a
North Carolina corporation, as it may be amended, modified, extended or
restated from time to time.
18. Amendment of Collateral Documents. Concurrently with the execution
hereof, certain of the Collateral Documents have been amended or amended and
restated to reflect that all collateral previously or hereafter granted to
secure any of the Loans shall hereafter be deemed to secure all of the Loans.
The parties to this Agreement agree that, if there exist other documents now or
hereafter securing any of the Loans, such documents shall be deemed to have been
amended hereby to secure all of the Loans, subject to the administrative powers
of Agent under this Agreement.
19. Other Relationships With Borrower Parties. Each Lender and Agent is
free to engage in other business relationships with the Borrower Parties,
provided that such relationship does not violate any restriction set forth in
the Loan Documents or this Agreement.
20. Responses to Requests. With respect to any consent or approval
requested by ACL or Agent under a provision of this Agreement, the Lenders shall
endeavor to provide to Agent written notice of their approval or disapproval
within five (5) Business Days of receipt of the request; provided, however, if a
Lender fails to give such notice within five (5) Business Days, the request
shall be regarded as approved by such Lender.
21. Consent to Jurisdiction. The parties hereto hereby irrevocably
consent to the jurisdiction of the United States District Court for the Middle
District of Tennessee and of all Tennessee state courts sitting in Davidson
County, Tennessee, for the purpose of any litigation to which Lender may be a
party and which concerns this Agreement or the Secured Indebtedness. It is
further agreed that venue for any such action shall lie exclusively with courts
sitting in Davidson County, Tennessee, unless Lender agrees to the contrary in
writing.
22. Not Partners; No Third Party Beneficiaries. Nothing contained
herein or in any related document shall be deemed to render either Lender a
partner of any Borrower Party for any purpose. This Agreement has been executed
for the sole benefit of Lenders and Agent, and no third party is authorized to
rely upon their rights hereunder or to rely upon an assumption that Lenders or
Agent has or will exercise its rights under this Agreement or under any document
referred to herein.
23. Business Days. If the last day of any notice period falls on a day
that is not a business day for Sirrom, the notice period shall end on the next
following business day.
24. Notices. Any communications concerning this Agreement shall be
addressed as follows:
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As to TCDF:
Tullis-Dickerson Capital Focus, L.P.
Attn: Joan P. Neuscheler
1 Greenwich Plaza
Greenwich, CT 06830
As to Sirrom:
Donald F. Barrickman
Sirrom Investments, Inc.
500 Church Street, Suite 200
Nashville, TN 37219
With a copy to:
Boult, Cummings, Conners & Berry, PLC
Attn: John E. Murdock III
P.O. Box 198062
Nashville, Tennessee 37219
As to Borrower Parties:
As provided in the Loan Documents
Communications shall only be effective when set forth in writing and actually
received at the address indicated above.
25. Incorporation of Exhibits. All Exhibits referred to in this
Agreement are incorporated herein by this reference.
26. Cumulative Remedies. The remedies provided Lenders and Agent in
this Agreement are not exclusive of any other remedies that may be available to
them under any other document or at law or equity.
27. Amendment and Waiver in Writing. No provision of this Agreement can
be amended or waived, except by a statement in writing signed by the party
against which enforcement of the amendment or waiver is sought; provided,
however, amendments hereto that do not affect the substantive rights of the
Borrower Parties shall not require the consent of the Borrower Parties, which
have joined in the execution hereof only for the purpose of evidencing their
knowledge of the provisions hereof.
28. Assignment. This Agreement shall be binding upon and inure to the
benefit of the respective heirs, successors and assigns of the parties.
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29. Entire Agreement. This Agreement and the other written agreements
among the Borrower Parties, Lenders and Agent represent the entire agreement
between the parties concerning the subject matter hereof, and all oral
discussions and prior agreements are merged herein.
30. Severability. Should any provision of this Agreement be invalid or
unenforceable for any reason, the remaining provisions hereof shall remain in
full effect.
31. Time of Essence. Time is of the essence of this Agreement, and all
dates and time periods specified herein shall be strictly observed, except that
Agent may permit specific deviations therefrom by its written consent.
32. Applicable Law. The validity, construction and enforcement of this
Agreement shall be determined according to the laws of Tennessee applicable to
contracts executed and performed entirely within that state, in which state.
33. Gender and Number. Words used herein indicating gender or number
shall be read as context may require.
34. Captions Not Controlling. Captions and headings have been included
in this Agreement for the convenience of the parties, and shall not be construed
as affecting the content of the respective paragraphs.
Executed the date first written above.
THE UNDERSIGNED ACKNOWLEDGE
A THOROUGH UNDERSTANDING OF
THE TERMS OF THIS AGREEMENT
AND AGREE TO BE BOUND
THEREBY:
SIRROM INVESTMENTS, INC.
By: /s/ Donald F. Barrickman
Title: Vice President
TULLIS-DICKERSON CAPITAL FOCUS, L.P.
By: /s/ Tullis-Dickerson Partners
Title: Joan P. Nenscheler, General Partner
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AMERICAN CONSOLIDATED
LABORATORIES, INC.
By: /s/ Joseph A. Arena
Title: CEO
NOVAVISION, INC.
By: /s/ Bart C. Gutekunst
Title: President
BIOPOLYMER CORPORATION
By: /s/ Bart C. Gutekunst
Title: President
SALVATORI OPHTHALMIC
MANUFACTURING CORPORATION
By: /s/ Joseph A. Arena
Title: Vice President
CAROLINA CONTACT LENS, INC.
By: /s/ Joseph A. Arena
Title: Vice President
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EXHIBIT D
COLLATERAL DOCUMENTS
Trademark and Patent Security Agreement executed by American Consolidated
Laboratories, Inc.
Stock Pledge Agreement executed by American Consolidated Laboratories, Inc.
First Amended and Restated Trademark and Patent Security Agreement
executed by NovaVision, Inc.
First Amended and Restated Stock Pledge Agreement executed by NovaVision, Inc.
First Amended and Restated Trademark and Patent Security Agreement executed by
Biopolymer Corporation.
Trademark and Patent Security Agreement executed by Carolina Contact Lens, Inc.
Trademark and Patent Security Agreement executed by Salvatori Ophthalmic
Manufacturing Corporation.
Joint and Several Unconditional Continuing Guaranty executed by all
parties.
Security Agreement executed by all parties.
Blocked account in name of NovaVision, Inc.
Security Interest Arising udner that Loan and Security Agreement between ACL and
TDCF
Various Financing Statements with respect to the above security interests
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