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RADNET MANAGEMENT, INC.
NOTE AND WARRANT PURCHASE AGREEMENT
Dated as of December 29, 2000
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NOTE AND WARRANT PURCHASE AGREEMENT
This NOTE AND WARRANT PURCHASE AGREEMENT (this "AGREEMENT"), dated as
of December 29, 2000, by and among PRIMEDEX HEALTH SYSTEMS, INC, a New York
corporation ("PRIMEDEX"), RADNET MANAGEMENT, INC., a California corporation and
a wholly-owned subsidiary of Primedex (the "COMPANY"), and General Electric
Company, a New York corporation (together with its successors and assigns, the
"PURCHASER").
R E C I T A L S
- - - - - - - -
WHEREAS, the Company acknowledges that it and one of its Affiliates are
indebted to the Purchaser in an aggregate amount of $3,130,296.80 as of the date
hereof pursuant to two promissory notes, each dated as of May 19, 1998 (such
promissory notes, the "EXISTING NOTES"); and
WHEREAS, the Company acknowledges that it is also indebted to the
Purchaser in an aggregate amount of approximately $38,000,000 as of the date
hereof pursuant to financing transactions other than the Existing Notes
(including, without limitation, equipment leases) (the "OTHER GE INDEBTEDNESS");
and
WHEREAS, the parties hereto desire to restructure the entire
indebtedness represented by the Existing Notes and the Company desires to
confirm the Other GE Indebtedness; and
WHEREAS, upon the terms and subject to the conditions hereinafter set
forth, the Purchaser agrees to cancel the Existing Notes and that the Company's
obligations to repay the indebtedness represented by the Existing Notes shall be
satisfied in exchange for (a) a promissory note in the principal amount of
$3,130,296.80 issued and sold by the Company to the Purchaser, in the form
attached hereto as EXHIBIT A (the "NEW NOTE") AND (b) a warrant to purchase
778,655 shares of the common stock of Primedex at a purchase price of One Dollar
($1.00) per share issued by Primedex to the Company, in the form attached hereto
as EXHIBIT B (the "WARRANT").
A G R E E M E N T
- - - - - - - - -
NOW, THEREFORE, in consideration of the premises and agreements
contained in this Agreement, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound, agree as follows:
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ARTICLE I
DEFINITIONS
1.1. INTERPRETATION. For all purposes of this Agreement and the
New Note, except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article and elsewhere in this
Agreement include the plural as well as the singular;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles that are consistently applied and, except as otherwise herein
expressly provided; and
(c) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision.
1.2. DEFINITIONS. Capitalized terms used herein shall have the
meanings ascribed to such terms as set forth in EXHIBIT C hereto.
ARTICLE II
DESCRIPTION OF NEW NOTE AND WARRANT
2.1. DESCRIPTION OF NEW NOTE. The Company shall authorize the issuance
and sale of the New Note, which New Note shall be dated as of December 1, 2000,
shall be issued on the Closing Date and shall bear interest at the rate set
forth in the Note. The entire unpaid principal amount of the New Note, together
with all interest thereon and any other sum payable under the New Note, shall be
due and payable in full on December 1, 2005 (the "MATURITY DATE"). The New Note
is not subject to prepayment or redemption at the option of the Company prior to
the Maturity Date except on the terms and conditions set forth in Sections 2.3,
2.4 and 2.5 of this Agreement.
2.2. WARRANT TO PURCHASE PRIMEDEX COMMON STOCK.
(a) In consideration of, and as an inducement to, the
Purchaser's purchase of the New Note, Primedex agrees to deliver to the
Purchaser on the Closing Date (as defined below) the Warrant. The Warrant shall
be dated the date of its issuance and shall be exerciseable in the manner
provided therein for a number of shares of the common stock of Primedex as
provided therein (the "WARRANT SHARES"). The number of Warrant Shares issuable
upon exercise of the Warrant is subject to adjustment in the manner and on the
terms and subject to the conditions set forth in the Warrant.
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(b) The regulations of the Internal Revenue Service now in
effect require a determination of the value of the Warrant being delivered
hereunder. Accordingly, it is therefore agreed by Primedex and the Purchaser
that for federal income tax purposes the amount of the issue price allocated to
the Warrant to be issued to the Purchaser is $0.00 in the aggregate, which shall
be the value ascribed to the Warrant by Primedex, the Purchaser and any
subsequent holder of the New Note and/or the Warrant for all purposes, including
the preparation of tax returns and the preparation of the financial statements
of Primedex.
2.3. OPTIONAL PREPAYMENT. The Company may, at any time on or prior to
the Maturity Date, prepay the New Note in whole or from time to time in part
(any such partial prepayment to be made in a minimum aggregate amount of
$1,000,000), which prepayment shall include all interest accrued thereon to the
Prepayment Date (as hereinafter defined).
2.4. NOTICE OF PREPAYMENT OF NEW NOTE. In the event that the Company
intends to effect any prepayment pursuant to Section 2.3 hereof, the Company
shall notify the Purchaser in writing of any date set for prepayment (a
"PREPAYMENT DATE") at least five (5) business days but not more than thirty (30)
days prior to such Prepayment Date. Once notice of such contemplated prepayment
is sent or mailed, the New Note shall become due and payable on such Prepayment
Date. On such Prepayment Date, such New Note shall be paid in full plus accrued
interest, if any, to the Prepayment Date and immediately after such payment, the
Purchaser shall surrender the New Note to the Company and, if any portion of any
such New Note remains unpaid, the Company shall issue to the Purchaser a new New
Note representing such unpaid principal amount.
2.5. RESTRICTIONS ON OPTIONAL PREPAYMENTS. Notwithstanding anything in
this Agreement to the contrary, the Company may not make any optional prepayment
on the New Note, whether pursuant to Section 2.4 or otherwise, and whether in
whole or in part, if such prepayment would result in a Default or an Event of
Default.
2.6. METHOD OF PAYMENT ON NEW NOTE. The principal of and interest on
the New Note shall be payable in lawful currency of the United States by check
at the principal office of the Purchaser or, at the Purchaser's option, by wire
transfer in immediately available funds to the account or accounts previously
designated in writing by the Purchaser at least three (3) business days prior to
the due date.
ARTICLE III
CLOSING; REPRESENTATIONS AND WARRANTIES
3.1. CLOSING.
(a) Subject to the terms and conditions hereof and on the
basis of the representations and warranties hereinafter set forth (i) the
Company shall issue and sell to the Purchaser, and the Purchaser shall purchase
from the Company, the New Note on the Closing Date (as hereinafter defined),
(ii) Primedex shall deliver to the Purchaser, in consideration for the purchase
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of the New Note from the Company, the Warrant on the Closing Date and (iii) the
Purchaser shall cancel the Existing Notes.
(b) Delivery of the New Note and Warrant will be made at the
offices of Xxxxxx, Xxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx, against the cancellation by the Purchaser of the Existing Notes at
12:00 P.M., local time, on December 29, 2000 or such later date (not later than
January 15, 2001) as shall mutually be agreed upon by parties hereto (the
"CLOSING DATE"). The New Note shall be delivered to the Purchaser in the form of
a single registered promissory note for the full amount of the Purchaser's
purchase (unless different denominations are specified by the Purchaser),
registered in the Purchaser's name or in the name of its nominee, all as the
Purchaser may specify at any time prior to the Closing Date. The Warrant shall
be delivered to the Purchaser in the form of a single warrant (unless otherwise
specified by the Purchaser), registered in the name of the Purchaser or in the
name of its nominee, all as the Purchaser may specify at any time prior to the
Closing Date.
3.2. CONDITIONS TO THE PURCHASER'S OBLIGATIONS. The Purchaser shall not
be obligated to purchase any New Note on the Closing Date, or to take, fulfill,
or perform any other action hereunder, until the following conditions have been
satisfied or provided for in a manner satisfactory to the Purchaser, or waived
in writing by the Purchaser:
(a) EXECUTION AND DELIVERY OF DOCUMENTS. This Agreement or
counterparts hereof, the New Note and the Warrant shall have been duly executed
by, and delivered to, each of the parties thereto; and the Purchaser shall have
received such documents, instruments, agreements and legal opinions as the
Purchaser shall reasonably request in connection with the transactions
contemplated by this Agreement.
(b) APPROVALS. The Purchaser shall have received (i)
satisfactory evidence that the Company and Primedex have obtained all required
consents and approvals of all Persons including all requisite Governmental
Authorities, to the execution, delivery and performance of this Agreement and
the transactions contemplated hereby or (ii) a certificate signed by a
Responsible Officer of each of the Company and Primedex, in form and substance
reasonably satisfactory to the Purchaser, certifying that no such consents or
approvals are required.
(d) NO MATERIAL ADVERSE CHANGE. Since July 31, 2000, there
shall have been no material adverse change in the business, assets, operations,
prospects or financial or other condition of the Company or Primedex,
individually or in the aggregate, including without limitation any such material
adverse change in the industry in which the Company or Primedex operate.
(e) REPRESENTATIONS AND WARRANTIES. All of the representations
and warranties of the Company and Primedex contained herein shall be true and
correct as of such date, except to the extent that such representation or
warranty expressly relates to an earlier date.
(f) NO DEFAULT. No Default or Event of Default has
occurred and is continuing or would result after giving effect to transactions
contemplated hereby.
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(g) CLOSING CERTIFICATES. The Purchaser shall have received
certificates dated the Closing Date, signed on behalf of Primedex by a
Responsible Officer of Primedex and on behalf of the Company by a Responsible
Officer of the Company, the truth and accuracy of which shall be a condition to
the Purchaser's obligation to purchase the New Note and certifying that (i) the
representations and warranties of Primedex and the Company set forth herein are
true and correct on and as of the Closing Date, except to the extent that such
representation or warranty expressly relates to an earlier date, (ii) Primedex
and the Company have performed all of their obligations hereunder which are to
be performed contemporaneously with or prior to the Closing Date, and (iii) no
Default or Event of Default has occurred and is continuing.
(h) EXISTENCE AND AUTHORITY OF THE COMPANY AND PRIMEDEX. On or
prior to the Closing Date, the Purchaser shall have received, in form and
substance reasonably satisfactory to them, such documents and evidence with
respect to each of the Company and Primedex as the Purchaser may reasonably
request in order to establish the existence and good standing of each of the
Company and Primedex and the authorization of the transactions contemplated by
this Agreement.
(i) SATISFACTORY PROCEEDINGS. All proceedings taken in
connection with the transactions contemplated by this Agreement, and all
documents necessary to the consummation thereof, shall be satisfactory in form
and substance to the Purchaser, and the Purchaser shall have received a copy
(executed or certified as may be appropriate) of all legal documents or
proceedings taken in connection with the consummation of said transactions.
3.3. REPRESENTATIONS AND WARRANTIES OF PRIMEDEX AND THE COMPANY. To
induce the Purchaser to enter into and perform this Agreement, Primedex and the
Company, jointly and severally, represent and warrant to the Purchaser, each and
all of such representations and warranties shall survive the execution and
delivery of this Agreement.
(a) The Company is a corporation validly existing and in good
standing under the laws of the state of California, and has all requisite
corporate power and authority to own, operate and lease its properties and to
carry on its business as now being conducted.
(b) Primedex is a corporation validly existing and in good
standing under the laws of the state of New York, and has all requisite
corporate power and authority to own, operate and lease its properties and to
carry on its business as now being conducted.
(c) The New Note has been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed, issued and
delivered and will be the legal, valid and binding obligation of the Company,
entitled to the benefits provided by this Agreement. This Agreement constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
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(d) This Agreement and the Warrant have been duly authorized
and, upon the execution and delivery thereof, will be the legal, valid and
binding obligations of Primedex, enforceable against Primedex in accordance with
their respective terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and by general equitable principles (whether enforcement is
sought by proceedings in equity or at law).
(e) The issuance and sale of the New Note and the Warrant and
the compliance by Primedex and the Company with all of the provisions of the New
Note, the Warrant and this Agreement, and the consummation of the transactions
herein and therein contemplated will not (a) constitute a violation (with or
without the giving of notice or lapse of time or both) of any provision of any
domestic or foreign law applicable to the Company or Primedex, (b) require any
consent, approval or authorization of, or notice to, any person, corporation,
partnership, domestic or foreign governmental authority or other organization or
entity, (c) result in a breach or default under, an acceleration or termination
of, or the creation in any party of the right to accelerate, terminate, modify
or cancel, any agreement, lease, note or other restriction, encumbrance,
obligation or liability to which the Company or Primedex is a party or by which
the Company or Primedex is bound or to which any of its assets are subject, (d)
result in the imposition or creation of any Lien upon any assets owned or used
by the Company or Primedex or (e) conflict with or result in a breach of or
constitute a default under any provision of the charter or bylaws of either the
Company or Primedex.
3.4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. To induce the
Company and Primedex to enter into and perform this Agreement, the Purchaser
represents and warrants to the Company and Primedex as of the date hereof that
the Purchaser is an "accredited investor" as such term is defined in Rule 501(a)
promulgated under the Securities Act.
ARTICLE IV
COVENANTS
From and after the Closing Date and for so long as any amount remains
unpaid on the New Note:
4.1. PAYMENT OF NEW NOTE.
(a) The Company shall promptly pay the principal of and
interest on the New Note on the date and in the manner provided herein and in
the New Note.
(b) The Company shall pay interest on overdue principal of and
on overdue installments of interest on the New Note in the manner provided in
the New Note.
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4.2. COMPLIANCE WITH LAWS. Each of the Company and Primedex will comply
with all laws, ordinances or governmental rules or regulations to which each of
them is subject, and will obtain and maintain in effect all licenses,
certificates, permits, franchises and other governmental authorizations
necessary to the ownership of their respective properties or to the conduct of
their respective businesses.
4.3. CORPORATE EXISTENCE, ETC. Each of the Company and Primedex
will at all times preserve and keep in full force and effect its corporate
existence and all of their respective rights and franchises.
4.4. NOTICE OF DEFAULT. The Company will furnish to the Purchaser,
within two (2) business days following the date in which the Company or Primedex
becomes aware of the existence of any condition or event which constitutes a
Default or an Event of Default, written notice specifying the nature and period
of existence thereof and the action which the Company and/or Primedex is taking
or proposes to take with respect thereto. In addition, in the event the Company
fails to pay any Indebtedness when due, the Company will promptly (and in any
event within two (2) business days thereof) give written notice thereof to the
Purchaser specifying in reasonable detail the relevant facts with respect
thereto.
4.5. AUTHORIZATIONS AND APPROVALS. The Company will promptly make or
obtain, from time to time at its own expense, all such governmental notices,
filings, licenses, authorizations, consents, permits and approvals as may be
required to enable it to comply with obligations hereunder and under the New
Note.
4.6. VISITS AND INSPECTIONS. The Company shall permit representatives
of the Purchaser (so long as no Default or Event of Default is in existence, at
the expense of the Purchaser), from time to time, as often as may be reasonably
requested, but only during normal business hours, to visit and inspect the
properties of the Company, audit and make extracts from its books and records,
and discuss with its officers, its employees and its independent accountants (it
being agreed that the Company shall be entitled to be present at any such
meeting with its accountants) the Company's business, assets, liabilities,
financial condition, business prospects and results of operations.
4.7. WARRANT PUT. Subject to the terms and conditions hereof and of the
Warrant, the Purchaser shall have the right, at its sole and absolute
discretion, upon ten (10) days prior written notice to Primedex, to require that
Primedex purchase from the Purchaser the Warrant and/or any Warrant Shares then
issued to the Purchaser, at any time after the fifth anniversary of the Closing
Date at a aggregate price of Two Million Three Hundred Eighty-Seven Thousand
Nine Hundred Seventy-Five Dollars ($2,387,975).
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ARTICLE V
EVENTS OF DEFAULT; REMEDIES
5.1. EVENTS OF DEFAULT. An "EVENT OF DEFAULT" occurs if:
(a) the Company defaults in the payment of any amount on the
New Note when such amount becomes due and payable; or
(b) the Company or Primedex fails to comply with any of the
other provisions of this Agreement (other than as specifically provided in the
other clauses of this SECTION 5.1) and in each case the failure continues for
ten (10) days; or
(c) any representation or warranty made by the Company or
Primedex herein, or made by the Company or Primedex in any written statement or
certificate furnished by the Company or Primedex in connection with the
consummation of the issuance and delivery of the New Note and the Warrant or
furnished by the Company or Primedex pursuant hereto, is untrue in any material
respect as of the date of the issuance or making thereof; or
(d) a default or an event of default occurs under any
instrument under which there may be issued, or by which there may be secured or
evidenced, any Indebtedness of the Company or Primedex; or
(e) (i) the Company or Primedex shall commence any case,
proceeding or other action (A) under any existing or future law or any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or the
Company or Primedex shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the Company or Primedex any
case, proceeding or other action of a nature referred to in clause (i) above
which (X) results in the entry of an order for relief or any such adjudication
or appointment or (Y) remains undismissed, undischarged or unbonded for a period
of sixty (60) days; or (iii) there shall be commenced against the Company or
Primedex any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of any order for any
such relief which shall not have been vacated, discharged or stayed or bonded
pending appeal within sixty (60) days from the entry thereof; or (iv) the
Company or Primedex shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii) or (iii) above; or (v) the Company or Primedex shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
(f) any judgment or decree for the payment of money in excess
of $5,000,000 or its foreign currency equivalent at the time is entered against
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the Company or Primedex and is not discharged and either (i) an enforcement
proceeding has been commenced by a creditor upon such judgment or decree or (ii)
there is a period of sixty (60) days following the entry of such judgment or
decree during which such judgment or decree is not discharged, waived or the
execution thereof stayed; or
(g) a Change of Control of the Company or Primedex.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
5.2. ACCELERATION. If an Event of Default (other than an Event of
Default specified in Section 5.1(e)(i) or (ii) with respect to the Company or
Primedex) occurs and is continuing, the Purchaser, by notice to the Company, may
declare the entire principal of and accrued interest on all the New Note to be
due and payable. Upon such a declaration, all such principal and interest shall
be due and payable immediately. If an Event of Default specified in Section
5.1(e)(i) or (ii) with respect to the Company or Primedex occurs and is
continuing, then the principal of the New Note shall IPSO FACTO become and be
immediately due and payable without any declaration or other act on the part of
the Purchaser. In the event of a declaration of acceleration because an Event of
Default set forth in clause (d) or (f) above has occurred and is continuing,
such declaration of acceleration shall be automatically rescinded and annulled
if the event of default triggering such Event of Default pursuant to clause (d)
or (f) shall be remedied, cured by the Company or Primedex or waived by the
holders of the relevant Indebtedness within sixty (60) days after the
declaration of acceleration with respect thereto.
5.3. RIGHTS AND REMEDIES CUMULATIVE. No right or remedy herein
conferred upon or reserved to the Purchaser is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent or subsequent assertion or employment of any other
appropriate right or remedy.
5.4. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Purchaser to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article V or by law to the Purchaser may be exercised from time to time, and as
often as may be deemed expedient, by the Purchaser.
5.5. WAIVER OF STAY OR EXTENSION LAWS. Each of the Company and
Primedex covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of any New Note; and the Company or Primedex (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law and
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covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Purchaser but will suffer and permit the execution of
every such power as though no such law had been enacted.
5.6. WAIVER OF PAST DEFAULTS. When a Default or Event of Default is
waived, it is deemed cured, but no such waiver shall extend to any subsequent
or other Default or Event of Default.
5.7. RIGHTS OF PURCHASER TO RECEIVE PAYMENT. Notwithstanding any other
provision of this Agreement or the New Note, the right of the Purchaser to
receive payment of principal of and interest on the New Note held by the
Purchaser, on or after the due dates expressed in the New Note, or to bring suit
for the enforcement of any such payment on or after such dates, shall not be
affected without the consent of the Purchaser.
ARTICLE VI
TRANSFER OF NEW NOTE
6.1. REGISTRATION OF TRANSFER. Subject to compliance with applicable
law, upon surrender of the New Note for registration of transfer, the Company
shall execute and deliver in exchange therefor a new New Note registered as the
Purchaser may request.
ARTICLE VII
TERMINATION
7.1. TERMINATION. This Agreement may be terminated by the mutual
written agreement of each of the parties hereto.
7.2. LIABILITY. If this Agreement is terminated pursuant to this
Article, such termination shall be without liability of any party to any other
party, except for any breach by such party of this Agreement or the New Note
prior to the date of such termination.
ARTICLE VIII
AMENDMENTS
8.1. AMENDMENTS. The Company may amend this Agreement or the New Note
only with the written consent of the Purchaser.
ARTICLE XI
MISCELLANEOUS
9.1. NOTICES. All notices and other communications pertaining to this
Agreement or any New Note shall be in writing and shall be deemed to have been
duly given upon the receipt thereof by the other party. Such notices shall be in
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writing and delivered by hand, confirmed facsimile transmission, or mailed,
certified or registered mail with postage prepaid, or sent by overnight courier:
If to the Purchaser, at
General Electric Company
00000 Xxxxxxxxxx Xxxxxxxxx #000
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
with copies to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
and
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Corporate Counsel-Commercial Finance - Merchant
Banking Group
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the Company or Primedex, at
Radnet Management, Inc.
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, M.D., Chairman
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
With a copies to:
Xxxxx & Lord
0000 Xxxxxxx Xxxxxxxxx #000
Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
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or to such other Person or address as shall be furnished to the other party in
writing.
9.2. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, each subsequent Purchaser and each of their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any Person, firm or
corporation, other than the parties hereto and their respective successors any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto, any subsequent Purchaser and their respective successors and
assigns, and for the benefit of no other Person, firm or corporation.
9.3. GOVERNING LAW; FORUM SELECTION; CONSENT TO JURISDICTION. THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THE
PARTIES SUBJECT HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CHOICE OF LAW PRINCIPLES THEREOF. ANY ACTION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY NOTE ISSUED PURSUANT HERETO,
SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW
YORK, IN THE COUNTY IN WHICH THE CITY OF NEW YORK IS LOCATED OR IN THE UNITED
STATES DISTRICT COURT COVERING SUCH COUNTY. EACH PARTY HERETO HEREBY EXPRESSLY
AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF NEW YORK, IN THE
COUNTY IN WHICH THE CITY OF NEW YORK IS LOCATED OR IN THE UNITED STATES DISTRICT
COURT COVERING SUCH COUNTY, FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH
ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. EACH PARTY HERETO IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK. THE PARTIES HERETO HEREBY EXPRESSLY AND
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
THEY MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH
COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.
9.4. WAIVER OF JURY TRIAL. THE COMPANY, PRIMEDEX AND THE PURCHASER
MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A
TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT, THE NEW NOTE OR ANY OTHER DOCUMENTS CONTEMPLATED
TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS
WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE PURCHASER TO PURCHASE THE NEW
NOTE.
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9.5. REPLACEMENT NEW NOTE. If any New Note becomes mutilated and is
surrendered by the Purchaser to the Company, or if the Purchaser claims that any
New Note has been lost, destroyed or wrongfully taken, the Company shall execute
a replacement New Note and the Company will deliver to such Purchaser such
replacement New Note, upon the affidavit of the Purchaser thereof attesting to
such loss, destruction or wrongful taking with respect to such New Note. Such
affidavit shall be accepted as satisfactory evidence of the loss, wrongful
taking or destruction thereof and no indemnity shall be required as a condition
of the execution and delivery of a replacement New Note.
9.6. INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
herein, if at any time the interest rate applicable to any New Note or other
obligation hereunder, together with all fees, charges and other amounts which
are treated as interest on such New Note or obligation under applicable law
(collectively, the "CHARGES"), shall exceed the maximum lawful rate (the
"MAXIMUM RATE") which may be contracted for, charged, taken, received or
reserved by the Purchaser of such New Note in accordance with applicable law,
the rate of interest payable in respect of such New Note or other obligation,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such New Note or other obligation but were not
payable as a result of the operation of this Section 9.6 shall be cumulated and
the interest and Charges payable to the Purchaser of such New Note in respect of
any other New Note or obligations hereunder shall be increased (but not above
the Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Rate to the date of repayment, shall have been
received by such Purchaser.
9.7. SEVERABILITY CLAUSE. In case any provision in this Agreement or
any New Note shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby and such provision shall be ineffective only to the extent
of such invalidity, illegality or unenforceability.
9.8. FURTHER ASSURANCES. Each party hereto or person or entity subject
hereto shall do and perform or cause to be done and performed all such further
acts and things and shall execute and deliver all such other agreements,
certificates, instruments and documents as any other party hereto or person or
entity subject hereto may reasonably request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
9.9. ENTIRE AGREEMENT. This Agreement, together with all exhibits and
schedules hereto, and the New Note are intended by the parties to be a final
expression of their agreement in respect of the subject matter contained herein
and therein, and supersede all prior agreements and understandings between the
parties with respect to such subject matter.
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9.10. HEADINGS. The headings of the Articles and the sections in this
Agreement are for convenience of reference only and shall not be deemed to alter
or affect the meaning or interpretation of any provisions hereof.
9.11. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original and all of which shall
constitute one and the same instrument.
ARTICLE X
INDEMNIFICATION
10.1. INDEMNITY. The Company agrees to (a) reimburse the Purchaser for
any costs and expenses (including, without limitation, reasonable attorneys' and
paralegals' fees and expenses, with respect to either one outside firm or
allocated in-house counsel for the Purchaser) incurred by the Purchaser in
connection with defending any suit brought against the Purchaser by the Company
or any other Person in connection with the transactions contemplated by this
Agreement, and (b) indemnify and hold the Purchaser, its Affiliates and their
respective officers, directors, trustees, employees, partners, attorneys and
agents (collectively, the "INDEMNITEES") harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever, incurred by
the Indemnitees, whether direct, indirect or consequential, as a result of or
arising from or relating to any proceeding by any Person, whether threatened or
initiated, asserting any claim for legal or equitable remedy against any Person
under any statute or regulation (including, without limitation, any federal or
state securities or commercial laws or under any common law or equitable cause
or otherwise) or common law principles arising from or in connection with the
past, present or future operations of the Company, its Subsidiaries or their
respective predecessors in interest, in any way arising from or in connection
with the negotiation, preparation, execution, delivery, enforcement, performance
and administration of this Agreement or any other document executed in
connection herewith; PROVIDED, HOWEVER, that the Company shall have no
obligation hereunder with respect to indemnified liabilities arising from the
gross negligence or willful misconduct of any Indemnitee seeking such
indemnification. To the extent that the indemnity set forth in this Section 10.1
may be unenforceable because it is violative of any law or public policy, the
Company shall pay the maximum portion which it is permitted to pay under
applicable law. Any Indemnitee will promptly notify the Company of the
commencement of any legal proceeding which may give rise to any indemnified
liability under the foregoing indemnity and shall permit the Company to
participate in the defense of such Indemnitee in any such proceeding; PROVIDED,
HOWEVER, that if any Indemnitee fails to provide prompt notice to the Company of
any legal proceeding, such Indemnitee shall nevertheless be entitled to be
indemnified under this Article X to the extent (but only to the extent) that the
Indemnitee can establish that the Company has not been materially prejudiced by
the time elapsed. The foregoing indemnity shall survive the repayment of the New
Note and the termination of this Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
RADNET MANAGEMENT, INC.
By:
-------------------------------
Name:
Title:
PRIMEDEX HEALTH SYSTEMS, INC.
By:
-------------------------------
Name:
Title:
GENERAL ELECTRIC COMPANY
By:
-------------------------------
Name:
Title:
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