EXHIBIT 10.53
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INTER-CREDITOR AGREEMENT
This Agreement is made among Positron Corporation, a Texas corporation
("Borrower"), UroTech, Ltd., a Texas Limited partnership ("UT"), and Boston
Financial & Equity Corporation, a Massachusetts corporation ("BF&EC"), and
ProFutures Bridge Capital Fund, L.P., a Delaware limited partnership
("Profutures").
1. Background.
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(a) Pursuant to a Loan and Security Agreement dated as of November
14, 1995, Borrower obtained loans from UT and granted security interests to UT.
(b) Pursuant to a Revolving Financing Agreement dated February 9,
1996, Borrower obtained a revolving loan from BF&EC and granted security
interests to BF&EC.
(c) Borrower proposes to enter in a financing agreement with
Profutures and grant to Profutures security interests to secure loans made by
Profutures thereunder.
(d) BF&EC, UT and Profutures have agreed to adjust the priorities
among them with respect to the security interests held by each of them in
Borrower's personal property as set forth below.
2. Definitions.
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(a) As used herein, the following terms mean as follows:
"BF&EC Agreements" means all loan agreements, security agreements
and all other kinds of agreements now or hereafter in force between Borrower and
BF&EC as the same may from time to time be amended or supplemented, which relate
to loans from BF&EC to Borrower or security interests granted by Borrower to
BF&EC or both and shall also include all notes made by Borrower to BF&EC.
"BF&EC Obligations" means all loans, advances, indebtedness,
liabilities, indemnity agreements, and amounts, liquidated or unliquidated,
owing from Borrower to BF&EC at any time, each of every kind, nature and
description whether arising under the BF&EC Agreements or otherwise, and whether
secured or unsecured, direct or indirect (that is, whether the same are due
directly from Borrower to BF&EC or indirectly as an endorser or guarantor; or
otherwise), absolute or contingent, due or to become due, now existing or
hereafter arising or contracted.
"Cardiology Machine" means the POSICAM(TM) HZL-R System medical
imaging device, Catalog No.712-100030, Serial No. twenty-one (21) which is
described on the attached Exhibit A and which is currently subject to the use
and possession of Buffalo Cardiology & Pulmonary Associates ("BCPA").
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"Collateral" means all of the personal property of Borrower,
including with respect to particular items of Collateral, the proceeds and
products thereof, and where applicable, insurance proceeds or escrow accounts
covering such property.
"Creditors" means UT, BF&EC and Profutures.
"Cardiology Machine Contracts" means all leases, contracts and
other arrangements, now or hereafter existing, between Borrower and any other
person relating to the possession or use of the Cardiology Machine, including
the arrangement between Borrower and BCPA relating to the Cardiology Machine in
effect as of the date hereof.
"Loan Agreements" means BF&EC Agreements, the Profutures
Agreements and the UT Agreements.
"Patents and Trademarks" means all computer hardware and
software, copyrights, license, patents, trade secrets and trademarks of
Borrower, whether now owned or hereafter acquired, including the property
described on the attached Exhibit B.
"Profutures Agreements" means all loan agreements, security
agreements and all other kinds of agreements now or hereafter in force between
Borrower and Profutures as the same may from time to time be amended or
supplemented, which relate to loans from Profutures to Borrower or security
interests granted by Borrower to Profutures or both and shall also include all
notes made by Borrower to Profutures.
"Profutures Obligations" means all loans, advances, indebtedness,
liabilities, indemnity agreements, and amounts, liquidated or unliquidated,
owing from Borrower to Profutures at any time, each of every kind, nature and
description whether arising under the Profutures Agreements or otherwise, and
whether secured or unsecured, direct or indirect (that is, whether the same are
due directly from Borrower to Profutures or indirectly as an endorser or
guarantor; or otherwise), absolute or contingent, due or to become due, now
existing or hereafter arising or contracted.
"UT Agreements" means all loan agreements, security agreements
and all other kinds of agreements now or hereafter in force between Borrower and
UT, as the same may from time to time be amended or supplemented, which relate
to loans from UT to Borrower or security interests granted by Borrower to UT or
both and shall also include all notes made by Borrower to UT.
"UT Obligations" means all loans, advances, indebtedness,
liabilities, indemnity agreements, and amounts, liquidated or unliquidated,
owing from Borrower to UT at any time, each of every kind, nature and
description whether arising under the UT Agreements or otherwise, and whether
secured or unsecured, direct or indirect (that is, whether the same are due
directly from Borrower to UT or indirectly as an endorser or guarantor; or
otherwise), absolute or contingent, due or to become due, now existing or
hereafter arising or contracted.
(b) The terms "account," "inventory," "equipment," "general
intangibles," "chattel paper," "instruments" and "documents" shall have the
meanings ascribed to them in the Uniform Commercial Code.
Page 2
3. Establishment of Priority.
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(a) Notwithstanding the date, manner or order of perfection of the
security interests granted to any Creditor, notwithstanding any applicable law
or decision and notwithstanding the terms of the Loan Agreements, and regardless
of which Creditor holds possession of all or any part of the Collateral, the
following as among the Creditors shall be the relative priority of the security
interests and liens of the Creditors in the Collateral:
(i) Patents and Trademarks, and any general intangibles
arising from or related to the Patents and Trademarks:
(A) First: Profutures
(B) Second: UT
(C) Third: BF&EC
(ii) the Cardiology Machine and Cardiology Machine Contracts,
and any accounts, general intangibles, chattel paper, instruments and documents
arising from or related to the Cardiology Machine or the Cardiology Machine
Contracts:
(A) First: Profutures
(B) Second: UT
(C) Third: BF&EC
(iii) Inventory (not including the Cardiology Machine):
(A) First: UT
(B) Second: BF&EC
(C) Third: Profutures
(iv) Equipment (not including the Cardiology Machine):
(A) First: UT
(B) Second: Profutures
(v) All other Collateral:
(A) First: BF&EC
(B) Second: UT
(C) Third: Profutures
(b) Profutures agrees that its priority in accounts is limited to
only those accounts that arise from the sale or lease of the Cardiology Machine
and that BF&EC will retain a first and prior security interest in all other
accounts of Borrower. In addition, UT agrees that notwithstanding its security
interest in Borrower's inventory and its priority therein, at that point in time
at which Borrower shall sell inventory and thereby an account shall be created,
the security interest of BF&EC in such account shall take priority over any
security interest held by UT in such account.
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(c) Creditors agree that as among themselves the priorities of
Creditors in the Collateral shall be effective as set forth in this Agreement
regardless of whether any of the Loan Agreements is invalid or unenforceable or
the security interests or liens securing the obligations of Borrower under Loan
Agreements have been perfected. Nothing contained in this Agreement is intended
to affect or limit, in any way whatsoever, the security interests that each
Creditor has in any of the assets of Borrower, whether tangible or intangible,
insofar as the rights of Borrower and third parties are involved. Except as
otherwise provided herein, each Creditor reserves any and all of its respective
rights, security interests and rights to assert security interests as against
Borrower and any third parties.
4. Demand/Acceleration.
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(a) BF&EC will not demand or accelerate the full payment by Borrower
of Borrower's indebtedness owed under the BF&EC Obligations, whether as the
result of any default by Borrower under the BF&EC Agreements or otherwise, until
BF&EC shall have given UT and Profutures not less than fifteen days notice of
its intent to so demand or accelerate.
(b) Profutures will not demand or accelerate the full payment by
Borrower of Borrower's indebtedness owed under the Profutures Obligations,
whether as the result of any default by Borrower under the Profutures Agreements
or otherwise, until Profutures shall have given BF&EC and UT not less than
fifteen days notice of its intent to so demand or accelerate.
(c) UT will not demand or accelerate the full payment by Borrower of
Borrower's indebtedness owed under the UT Obligations, whether as the result of
any default by Borrower under the UT Agreements or otherwise, until UT shall
have given BF&EC and Profutures not less than fifteen days notice of its intent
to so demand or accelerate.
5. Continuation/Marshaling.
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(a) The priorities provided herein shall remain in effect until each
of the Loan Agreements shall be terminated and the BF&EC Obligations, the
Profutures Obligations and the UT Obligations have been fully paid and
performed.
(b) The priorities herein provided shall not in any way be impaired
or affected by any amendment of any of the Loan Agreements, the release of any
collateral by any Creditor, the grant by any Creditor to Borrower of any waiver
or other indulgence or any extension of time, whether by amendment or otherwise,
or the obtaining by any Creditor of additional mortgages of, security interests
in, or other rights in any real or personal property, whether such property is
owned by the Borrower or any other person.
(c) BF&EC shall not be required to marshal any present or future
security for the BF&EC Obligations. UT and Profutures each agrees not to invoke
or claim against BF&EC any right to require BF&EC to marshal any security for
the BF&EC Obligations, and UT ProFutures specifically waives any right to assert
against BF&EC a claim that BF&EC so marshal.
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(d) Profutures shall not be required to marshal any present or
future security for the Profutures Obligations. BF&EC and UT each agrees not to
invoke or claim against Profutures any right to require Profutures to marshal
any security for the ProFutures Obligations, and BF&EC and UT specifically
waives any right to assert against Profutures a claim that Profutures so
marshal.
(e) UT shall not be required to marshal any present or future
security for the UT Obligations. BF&EC and Profutures each agrees not to invoke
or claim against UT any right to require UT to marshal any security for the UT
Obligations, and BF&EC and ProFutures specifically waives any right to assert
against UT a claim that UT so marshal.
6. Notice.
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(a) All communications herein provided shall be in writing and shall
be effective when hand-delivered or, if mailed, three days after being mailed by
United States mail, registered or certified, postage prepaid, and addressed as
provided in this paragraph.
(b) The addresses to which such communications shall be sent are as
follows:
(i) If intended to Borrower to:
Positron Corporation
00000 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
(ii) If intended to UT to:
Uro-Tech, Ltd.
0000 Xxxxx Xxxxxxx Xxxxxx
0000 XXX Xxxxxxx
Xxxxxx, XX 00000
(iii) If intended for BF&EC to:
Boston Financial & Equity Corporation
00 Xxxxxxxx Xxxxxx
X.X. Xxx 00, Xxxxxxx Xxxxxxx
Xxxxxx XX 00000
(iv) If intended for ProFutures to
ProFutures Bridge Capital Fund, L.P.
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
(c) The addresses set forth herein may be changed by notice
hereunder.
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7. Limitation of Rights.
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(a) The provisions of this Agreement are solely for the benefit of
the Creditors and Borrower shall obtain no rights against any Creditor by virtue
of the terms hereof.
(b) Borrower acknowledges that the priorities in security interests
are to be as hereby provided and that it shall be bound by the terms hereof.
8. Miscellaneous.
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(a) Each Creditor and Borrower will from time to time execute and
deliver to a Creditor all such other and further instruments and further
documents as the Creditor shall reasonably request in order to effect and
confirm more securely in the Creditor all rights contemplated in this Agreement.
(b) This Agreement may be amended only by an instrument in writing
and duly signed by authorized officers or representatives of each Creditor.
Except to the extent any obligation is imposed on Borrower, Borrower need not be
a party to any such amendment.
(c) If any provisions of this Agreement shall be held to be illegal
or unenforceable, such illegality or unenforceability shall relate solely to
such provision and shall not affect the remainder of this Agreement.
(d) This Agreement shall take effect as an instrument under seal.
(e) The captions herein contained are inserted as a matter of
convenience only and such captions do not form a part of this Agreement and
shall not be utilized in the construction hereof.
(f) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assignees.
9. Counterparts. To facilitate execution this document may be executed in
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multiple counterparts. It shall not be necessary for the signature of each party
to appear on each counterpart. All counterparts shall collectively constitute a
single document. It shall not be necessary to produce or account for more than
one counterpart bearing the signature of the party to be charged. Any signature
page to a counterpart may be detached from such counterpart without impairing
the legal effect of the signatures thereon and thereafter attached to another
counterpart identical thereto except having attached to it additional signature
pages.
10. Prior Agreement. This Agreement supersedes the Inter-Creditor
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Agreement dated February 10, 1996 among Borrower, UT and BF&EC.
11. Effective Date. The parties have executed this Agreement in multiple
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counterparts of equal dignity on the date(s) set forth below. The date of this
Agreement shall be the date or the later of the dates on which all parties have
executed this Agreement as set forth below.
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BOSTON FINANCIAL & EQUITY CORPORATION
November 12, 1996 By: [SIGNATURE ILLEGIBLE]
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Authorized Officer
Title: President
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POSITRON CORPORATION
November 14, 1996 By: /s/ Xxxxx Xxxxxxxxx
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Authorized Officer
Title: Vice President
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URO-TECH, LTD.
By: Uro-Tech Management Corp.,
General Partner
November 14, 1996 By: /s/ Xxxx X. Xxxx
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Authorized Officer
Title: President - UroTech MGT. Corp.
---------------------------------
PROFUTURES BRIDGE CAPITAL FUND, L.P.
BY: Bridge Capital Partners, Inc.,
General Partner
November 14, 1996 By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, President
Page 7
Page 1 of 3 pages
EXHIBIT A
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DESCRIPTION OF EQUIPMENT
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Customer: Buffalo Cardiology & Pulmonary Associates
0000 Xxxx Xxxxxx
Xxxxxxxxxxxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxxx
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CATALOG NO. DESCRIPTION
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712-100030 POSICAM HZL-R SYSTEM
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POSICAM Low Profile Gantry and Patient Couch
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- 53.4 cm patient opening diameter
- 1.0 RPS wobble speed
- Laser positioning reference guides, top and both sides
- Digital display for patient axial position
- Computer controlled axial couch position
- Digital display for count rate
- Digital display for acquisition time
- Retractable septa
Detector Modules
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- 32 ring staggered BGO crystals
- Crystal dimensions 8.5 x 9.8 x 30mm
- 1024 PMTs with 4,096 crystals with a
4:1 ratio for optimum sensitivity
- 61 slice generation with 2.6 mm separation
- 16.6 cm axial field of view
- 260K counts/sec/microCI/cc sensitivity typical
- 1.3m counts/sec/microCI/cc sensititity with SEPTA retracted
- 5.8 mm cubic resolution
- 78 cm ring diameter
- overlapping (patented) design
- 5 msec temporal resolution
- 5 nsec FWHM coincidence resolving time with 12 ns window
POSICAM Data Acquisition System (PDAS)
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Hardware and Software
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- 68030 processor, 25 MHZ
- VME bus plus 2 dedicated VSB busses
- PDAS software
- Real time binning rate of 2 million events/sec
- 32 Mbyte memory (Optionally expandable)
- Static, real-time dynamic, real-time gated acquisition modes
Page 2 of 3 pages
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Operator Console/View Station
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- Sun SPARCstation
- 16" color monitor
- 32 MBytes memory
- 207 MByte hard disk
- Ethernet network interface
- Software applications package
POSICAM Image Workstation
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- Viewing console table and chair
- 19" color monitor
- Sun SPARCstation
- 32 MByte memory
- 650 MByte hard disk storage minimum
- 4mm DAT Tape 2-8 GByte
- Keyboard with optical mouse and pad
- Ethernet network interface
- Dedicated applications accelerator for reconstruction
POSICAM ACS Software
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- Window Interface
- Automated protocols
- Acquisition
- Reconstruction
- Corrections
- Image processing and display
- Utilities
Rotating Fan Beam
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- Transmission scan with real-time randoms and scatter rejection
- Reduced attenuation acquisition time
- Employs sealed /68/Ge rod sources (customer supplied) from
recommended vendor
- Patient aperture cover
Communicatioms Modem
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- 9500 baud V.32 bis, V.42 bis standards
System Documentation
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Page 3 of 3 pages
________________________________________________________________________________
OPTIONS
712-011003 Codonics High Resolution Color Printer
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- 300 dots per inch resolution
- Over 16.7 million high quality colors
- 256 levels each of cyan, magenta and yellow
- 8.5" x 11" print size
- Paper or color transparencies
- Ethernet connection
712-013000 Cardiac Quantitative Software
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- XXX (Rubidlum Absolute Uptake)
712-013020 Neuro Quantitative Software
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- FDG Uptake
712-013030 Oncology Quantitative Software
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- FDG Uptake
712-005150 Head Holder - Adjustable
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- Foam inserts and mounting hardware included
- Adjustable elevation and tilt
712-005011 Deluxe PET Phantom
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- 20 cm cylinder phantom
- Inserts inculde six solid spheres, cold rod
insert, and hardware for mounting user-
supplied capillary line sources
712-020003 Remote Physician's View Station
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- Sun SPARCstation
- 16" color monitor
- 32 MBytes memory
- 207 MByte harddisk
- Ethernet network interface
- Software applications package
EXHIBIT B
Patent No.(s)
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4,563,582 issued 01/07/86
4,642,464 issued 02/10/87
4,667,779 issued 03/03/87
4,667,299 issued 06/30/87
4,733,083 issued 03/22/88
5,210,420 issued 05/11/93
Trademark
Application No.(s) Date Filed Name
------------------ ---------- ----
74/495,437 2/28/94 "Positron Technologies
74/495,450 2/28/94 "Positron Medical Systems"
74/499,181 3/11/94 "Positron Medical and Design"
Trademark
Application No.(s) Date Filed Name
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1,494,091 6/28/88 "Posicam"
