EXHIBIT 10.2
AMENDED, RESTATED AND CONSOLIDATED
LOAN AND SECURITY AGREEMENT
---------------------------
THIS AMENDED, RESTATED AND CONSOLIDATED LOAN AND SECURITY AGREEMENT
(this "Agreement") is made as of July 1, 2004 among Radnet Management, Inc., a
California corporation ("RMI"), Diagnostic Imaging Services, Inc., a Delaware
corporation ("DIS"), ("Debtors" and each a "Debtor") and DVI Financial Services
Inc. ("Secured Party").
R E C I T A L S
---------------
WHEREAS, each of the Debtors is obligated to Secured Party in the
amounts set forth on Schedule A hereto (as of the date hereof) as evidenced by
those loan agreements, loan and security agreements, master leases, schedules
and promissory notes set forth on Schedule A hereto (collectively, as any of the
foregoing may have been amended, modified, supplemented, extended or restated
from time to time, the "Prior Financing Documents");
WHEREAS, each of the Debtors are affiliated with each other and have
benefited from the loans and advances made to all Debtors under the Prior
Financing Documents;
WHEREAS, the Debtors are in default of their respective obligations to
Secured Party under the Prior Financing Documents; and
WHEREAS, as part of a negotiated settlement among the Debtors and the
Secured Party, the Debtors and the Secured Party have agreed to amend, restate
and consolidate the Prior Financing Documents into this Agreement on the terms
and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual conditions and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
CERTAIN DEFINITIONS. THE FOLLOWING TERMS
SHALL HAVE THE FOLLOWING RESPECTIVE
MEANINGS: COLLATERAL shall mean any assets
of Debtors now or hereafter securing the
Obligations.
EVENT OF DEFAULT shall mean those events set forth in Section 10 hereof.
HEALTH CARE LAWS mean all federal, state and local laws relating to health care
providers and health care services, including, without limitation, Section
1877(a) of the Social Security Act as amended by the Omnibus Budget
Reconciliation Act of 1993,42 U.S.C. ss. l395nn.
LOAN shall have the meaning assigned to it in Section 2(b) hereof.
LOAN DOCUMENTS shall mean this Agreement, the Security Documents and all other
guarantees, reaffirmation of guarantees, security agreements, pledge agreements,
notes, instruments and other documents and agreements executed in connection
with this Agreement or the Prior Loan Documents and/or otherwise securing or
supporting the Obligations.
MATURITY DATE shall mean June 1, 2008; PROVIDED, that such date shall be
automatically extended to the date which is one month prior to the maturity date
set forth in either (i) any extension of the 11.5% Series A convertible
subordinated debentures due June 30, 2008 of Primedex Health Systems Inc., so
long as such extension does not require any payments of principal, increase the
interest rate charged, modify the subordination terms as they apply to this
Agreement, or otherwise vary the payment terms from the terms existing on the
date hereof or (ii) any refinancing of the subordinated debt described in clause
(i) above so long as the terms of such replacement subordinated debt do not
require principal payments until maturity and are otherwise no more adverse to
Primedex Health Systems Inc. or to Secured Party than the terms of the
subordinated debt described under clause (i) above in effect or the date hereof;
PROVIDED, that in no event shall the maturity Date under this Agreement extend
past October 31, 2010.
OBLIGATIONS shall mean all principal and interest in respect of the Loan, all
Secured Party Expenses and all additional amounts and other sums at any time due
and owing under this Agreement and any other Loan Documents and the performance
and observance of all covenants and conditions contained herein and therein.
SECURED PARTY EXPENSES means all (i) costs and expenses (including, without
limitation, taxes and insurance premiums) required to be paid by any Debtor
under this Agreement or under any of the other Loan Documents that are paid or
advanced by Secured Party or any affiliate of Secured Party, (ii) filing,
recording, publication and search fees paid or incurred by Secured Party in
connection with Secured Party's transactions with Debtors, (iii) costs and
expenses incurred by Secured Party to correct any Event of Default, enforce any
provision of the Loan Documents or in gaining possession of, maintaining,
handling, preserving, storing, shipping, selling or preparing for sale or
advertising to sell any Collateral, whether or not a sale is consummated, after
the occurrence and during the continuance of an Event of Default, (iv) costs and
expenses of suit incurred by Secured Party in enforcing or defending the Loan
Documents or any portion thereof, (v) costs and expenses incurred by Secured
Party to convert any data submitted to Secured Party by Debtor to a form
reasonably acceptable to Secured Party and (vi) Secured Party's reasonable
attorney fees and expenses incurred (before or after execution of this
Agreement) in advising Secured Party with respect to, or in structuring,
drafting, reviewing, negotiating, amending, terminating, enforcing, defending or
otherwise concerning, the Loan Documents or any portion thereof, irrespective of
whether suit is brought.
SECURITY DOCUMENTS means collectively, (i) that certain Master Security
Agreement dated as of May 1, 2002 between RMI and Secured Party, (ii) that
certain Master Security Agreement dated as of March 20, 2002 between DIS and
Secured Party, (iii) that certain Master Security Agreement dated as of July 11,
2001 between RMI and Secured Party, (iv) that certain Securities Pledge
Agreement dated as of December 20, 1999 between RMI and Secured Party and (v)
all other security agreements, pledge agreements, documents and agreements
granting Secured Party a lien in any assets of any Debtor, in each case as
amended, restated, supplemented or otherwise modified from time to time.
2
DESCRIPTION OF LOANS.
---------------------
The Debtors acknowledge and agree that as of the date hereof, (i) there exists
an outstanding amount of principal and interest of not less than $17,800,000
owing to Secured Party under the Prior Financing Documents, (ii) the Debtors are
in default of their respective payment obligations under the Prior Financing
Documents and (iii) each Debtor has no right of offset, defense or counterclaim
with respect to any amounts owing under the Prior Financing Documents.
Upon satisfaction of the conditions set forth in Section 17 hereof, the parties
hereto agree that (i) all the Prior Financing Documents shall be amended,
restated and consolidated into this Agreement, (ii) the amount of indebtedness
owed to Secured Party by Debtors under the Prior Financing Documents and
outstanding as of the date hereof shall be evidenced by this Agreement and shall
be in the principal amount of $15,200,000 (the "Loan") after giving effect to
the payment required under Section 17(c) hereof. Interest shall accrue on the
outstanding amount of the loan at a rate per annum equal to nine percent (9%)
calculated or the basis of a 360 day year and accrual days elapsed.
The Debtors, jointly and severally, agree to repay the Loan and interest accrued
thereon as follows: (i) on July 29, 2004, interest only on the Loan shall be
paid for the month of July in the amount of $114,000; (ii) on the last business
day of each of August, 2004, September, 2004, October, 2004, November, 2004 and
December, 2004 interest only on the Loan shall be paid in arrears in the amount
of $114,000 for each such month, (iii) thereafter, commencing on January 31,
2005 and on the last business day of each month thereafter, equal monthly
installments of principal and interest shall be paid in the amount of
$273,988.16 for each such month and (iv) on June 1, 2008, the balance of the
principal and interest on the Loan equal to $7,555,263.18 (PROVIDED, that if the
Maturity Date is extended pursuant to the definition of "Maturity Date" herein,
the monthly installments under clause (iii) above shall continue to be paid on
the last business day of each month after May 30, 2008 until the extended
Maturity Date). Notwithstanding the foregoing, on the earlier of (A) the
Maturity Date or (B) such earlier date on which the Obligations are declared due
and payable pursuant to the terms of this Agreement, the entire outstanding
principal amount of the Loan, together with all accrued and unpaid interest
thereon, shall be due and payable. The Debtors may prepay the Loan at any time
and from time to time in increments of $100,000 without penalty or premium and
any such prepayments shall be applied to reduce the scheduled installments
ratably against all scheduled installments. No portion of the Loan may be
reborrowed once repaid. All payments of the Obligations and other amounts set
forth on Section 17 hereof shall be made in immediately available funds to
Secured Party per the wiring instructions set forth on Schedule D hereto or
pursuant to such other instructions as Secured Party shall provide to Debtors.
3
INTEREST. AT SECURED PARTY'S OPTION,
INTEREST WILL ACCRUE ON THE UNPAID PORTION
OF PRINCIPAL OF THE LOAN HEREOF AND ALL
OTHER SUMS DUE FROM DEBTOR HEREUNDER AND
UNDER THE LOAN DOCUMENTS FOLLOWING THE
OCCURRENCE AND DURING THE CONTINUANCE OF AN
EVENT OF DEFAULT UNTIL THE DATE OF PAYMENT
IN FULL OF SUCH PRINCIPAL AND ALL OTHER SUMS
DUE HEREUNDER OR UNDER THE LOAN DOCUMENTS AT
A FIXED RATE OF 18% PER ANNUM (THE "Default
Rate"). INTEREST AT THE DEFAULT RATE WILL BE
COLLECTIBLE AS PART OF ANY JUDGMENT
HEREUNDER AND SECURED BY THE COLLATERAL.
DEBTORS ACKNOWLEDGE AND AGREE THAT THE
INCREASE IN THE INTEREST RATE AFTER THE
OCCURRENCE AND DURING THE CONTINUANCE OF AN
EVENT OF DEFAULT IS INTENDED TO COMPENSATE
SECURED PARTY FOR THE ADDED RISKS OF
MAINTAINING A DEFAULTED LOAN AND IS NOT
INTENDED AS A PREMIUM, PENALTY, LIQUIDATED
DAMAGES OR REIMBURSEMENT FOR INTERNAL OR
OUT-OF-POCKET COSTS ASSOCIATED THEREWITH.
ANY JUDGMENT OBTAINED HEREUNDER OR UNDER THE
LOAN DOCUMENTS WILL ACCRUE INTEREST AT THE
DEFAULT RATE UNTIL PAID.
SECURITY INTEREST IN COLLATERAL.
--------------------------------
The provisions under the Prior Financing Documents granting liens and security
interests in the assets of Debtors are hereby reaffirmed and shall be
incorporated into this Section 4 of this Agreement by reference and such liens
and security interests in the assets described in such Prior Financing Documents
shall continue to secure the Obligations hereunder. Each Debtor party to any of
the Security Documents hereby reaffirms all the security grants and obligations
of such Debtor under such Security Documents which Security Documents shall
continue to remain in effect until all Obligations are paid in full and this
Agreement is terminated. Each Debtor party to any of the Security Documents
agrees, acknowledges and confirms with Secured Party that the term "DVI
Indebtedness" as set forth in such Security Documents shall include all
Obligations under this Agreement and the term "Collateral" as defined in such
Security Documents shall secure the Obligations under this Agreement.
4
In addition to the foregoing, each Debtor hereby grants and assigns a security
interest to Secured Party and its successors and assigns in all the equipment
and other property of such Debtor described in Schedule B attached to this
Agreement, and all substitutions, renewals or replacements of and alterations,
additions or improvements, if any, to such Collateral together with in each and
every case all proceeds thereof. Each Debtor irrevocably authorizes Secured
Party(or its agent) to file at any time and from time to time such financing
statements under the uniform commercial code of any jurisdiction with respect to
the Collateral as Secured Party may require and any amendments or continuations
thereto, in each case naming a Debtor, as debtor, and Secured Party, as secured
party, under such financing statements, amendments and continuations.
Each item of Collateral shall secure all the Obligations and all other present
and future indebtedness or obligations of Debtors to Secured Party of every kind
and nature whatsoever. Each Debtor warrants and agrees that the Collateral will
be used primarily for business or commercial purposes and that regardless of the
manner of affixation the Collateral shall remain personal property and shall not
become part of the real estate. Each Debtor agrees to keep the Collateral at the
locations of such Debtor set forth on Schedule B and will not make any change in
the location of the Collateral without the prior written consent of Secured
Party.
TIME IS OF THE ESSENCE; LATE CHARGES. TIME
IS OF THE ESSENCE IN THIS AGREEMENT AND IF
ANY SCHEDULED INSTALLMENT IS NOT PAID WITHIN
THE TEN (10) DAYS AFTER THE DUE DATE
THEREOF, SECURED PARTY SHALL HAVE THE RIGHT
TO ADD AND COLLECT, AND DEBTORS, JOINTLY AND
SEVERALLY, AGREE TO PAY, A LATE CHARGE ON
AND IN ADDITION TO, SUCH SCHEDULED
INSTALLMENT EQUAL TO FIVE PERCENT (5%) OF
SUCH SCHEDULED INSTALLMENT OR A LESSER
AMOUNT IF ESTABLISHED BY ANY STATE OR
FEDERAL STATUTE APPLICABLE THERETO.
5
NO WARRANTIES. THIS AGREEMENT IS SOLELY A
FINANCING AGREEMENT. EACH DEBTOR
ACKNOWLEDGES THAT: THE COLLATERAL HAS BEEN
SELECTED AND ACQUIRED SOLELY BY SUCH DEBTOR
FOR SUCH DEBTOR'S PURPOSES; SECURED PARTY IS
NOT THE MANUFACTURER, DEALER, VENDOR OR
SUPPLIER OF SAID COLLATERAL; THE COLLATERAL
IS OF A SIZE, DESIGN CAPACITY, DESCRIPTION
AND MANUFACTURE SELECTED BY THE DEBTOR;
DEBTOR IS SATISFIED THAT THE COLLATERAL IS
SUITABLE AND FIT FOR ITS PURPOSES; AND
SECURED PARTY HAS NOT MADE AND DOES NOT MAKE
ANY WARRANTY OR REPRESENTATION WHATSOEVER,
EITHER EXPRESS OR IMPLIED AS TO THE FITNESS,
CONDITION, MERCHANTABILITY, DESIGN OR
OPERATION OF THE COLLATERAL, ITS FITNESS FOR
ANY PARTICULAR PURPOSE, THE VALUE OF THE
COLLATERAL, WORKMANSHIP IN THE COLLATERAL,
NOR ANY OTHER REPRESENTATION OR WARRANTY
WHATSOEVER. EACH DEBTOR ACKNOWLEDGES AND
AGREES THAT NEITHER THE MANUFACTURER,
VENDOR, A DEALER OR SUPPLIER, NOR ANY
SALESMAN, REPRESENTATIVE, OR OTHER AGENT OF
THE MANUFACTURER, DEALER, VENDOR OR
SUPPLIER, IS AN AGENT OF SECURED PARTY. NO
SALESMAN, REPRESENTATIVE OR AGENT OF THE
MANUFACTURER, DEALER VENDOR OR SUPPLIER IS
AUTHORIZED TO WAIVE OR ALTER ANY TERM OR
CONDITION OF THIS AGREEMENT AND NO
REPRESENTATION AS TO THE COLLATERAL OR ANY
OTHER MATTER BY ANY MANUFACTURER DEALER,
VENDOR OR SUPPLIER SHALL AFFECT ANY DEBTOR'S
DUTY TO PAY THE LOAN AND PERFORM THE OTHER
OBLIGATIONS AS SET FORTH IN THIS AGREEMENT.
6
INSURANCE AND RISK OF LOSS. ALL RISK OF LOSS
OF, DAMAGE TO, OR DESTRUCTION OR THE
COLLATERAL SHALL AT ALL TIMES BE ON DEBTORS.
EACH DEBTOR WILL PROCURE FORTHWITH AND
MAINTAIN PROPERTY AND GENERAL LIABILITY
INSURANCE WITH EXTENDED OR COMBINED
ADDITIONAL COVERAGE ON THE COLLATERAL FOR
THE FULL INSURABLE VALUE THEREOF FOR THE
LIFE OF THIS AGREEMENT PLUS SUCH OTHER
INSURANCE AS SECURED PARTY MAY SPECIFY AND
PROMPTLY DELIVER EACH TO SECURED PARTY WITH
A STANDARD LONG FORM ENDORSEMENT ATTACHED
SHOWING LOSS PAYABLE TO SECURED PARTY OR
ASSIGNS AS RESPECTIVE INTERESTS MAY APPEAR.
SUCH POLICIES SHALL NAME EACH SUCH DEBTOR AS
OWNER OF THE COLLATERAL AND SECURED PARTY AS
INSURED OR LOSS PAYEE AS THE CASE MAY BE.
EACH INSURER SHALL AGREE BY ENDORSEMENT UPON
SUCH POLICY ISSUED BY IT OR BY INDEPENDENT
INSTRUMENT FURNISHED TO SECURED PARTY AND
EACH SUCH DEBTOR THAT IT WILL GIVE SECURED
PARTY AND SUCH DEBTOR THIRTY (30) DAYS
WRITTEN NOTICE BEFORE THE POLICY IN QUESTION
SHALL BE MATERIALLY ALTERED OR CANCELLED.
SECURED PARTY'S ACCEPTANCE OF POLICIES IN
LESSER AMOUNTS OR RISKS SHALL NOT BE A
WAIVER OF DEBTORS' FOREGOING OBLIGATION.
DEBTORS' REPRESENTATIONS AND WARRANTIES.
EACH DEBTOR REPRESENTS AND WARRANTS TO
SECURED PARTY AS FOLLOWS:
Such Debtor is a corporation fully organized and existing under the laws of the
State of its incorporation without limit as to the duration of its existence and
is authorized and in good standing to do business in said State. Such Debtor has
corporate powers and adequate authority, rights and franchises to own its own
property and to carry on its business as now conducted, and is duly qualified
and in good standing in each state in which the character of the properties
owned by it therein or the conduct of its business makes such qualifications
necessary; and such Debtor has the corporate power and adequate authority to
make and carry out this Agreement.
The execution, delivery and performance of this Agreement are duly authorized
and do not, to the best of such Debtor's knowledge, require the consent or
approval of any governmental body or other regulatory authority; are not in the
contravention of or in conflict with any law, regulation or any term or
provision of its articles or certificate of incorporation, bylaws and this
Agreement is the valid, binding and legally enforceable obligation of such
Debtor in accordance with its terms.
7
The execution, delivery and performance of this Agreement will not contravene or
conflict with any agreement, indenture or undertaking to which such Debtor is a
party or by which it or any of its property may be bound by or affected, and
will not cause any lien, charge or other encumbrance to be created or imposed
upon any such property by-reason thereof.
After giving effect to the releases contemplated by Section 17(f) hereof, such
Debtor has good and valid title to its Collateral which is free from, and will
be kept free from, all liens, claims, security interests and encumbrances,
except for the security interest granted in favor of Secured Party.
No financing statement covering the Collateral listed on Schedule B hereto or
any proceeds thereof is on file in favor of anyone other than Secured Party,
unless the lien evidenced by such financing statement is subordinated to the
liens of Secured Party in a manner acceptable to Secured Party.
All necessary action, including the filing of UCC-1 Financing Statements, has
been taken in order to provide Secured Party with a perfected security interest
in the Collateral.
Such Debtor (i) has obtained all material permits, licenses and other
authorizations that are required under Health Care Laws applicable to such
Debtor, (ii) is in compliance in all material respects with all terms and
conditions of such required permits, licenses and authorizations and (c) is in
compliance in all material respects with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules and
timetables contained in such Health Care Laws.
DEBTORS' AGREEMENTS. EACH DEBTOR AGREES:
To defend at such Debtor's own cost and expense any action, proceeding or claim
affecting the Collateral.
To promptly pay all Secured Party Expenses upon demand by Secured Party.
To pay promptly all taxes, assessments, license fees and other public or private
charges when levied or assessed against the Collateral or this Agreement and
this obligation shall survive the termination of this Agreement.
That if a certificate of title is required or permitted by law, such Debtor
shall obtain such certificate with respect to the Collateral, showing the
security interests of Secured Party thereon and in any event do everything
necessary or expedient to preserve or perfect the security interest of Secured
Party.
That such Debtor will not misuse, fail to keep in good repair, secrete, or
without the prior written consent of Secured Party and notwithstanding Secured
Party's claim to proceeds, sell, rent, lend, encumber or transfer any of the
Collateral.
That Secured Party may enter upon such Debtor's premises or wherever the
Collateral may be located at any reasonable time to inspect the Collateral and
such Debtor's books and records pertaining to the Collateral and such Debtor
shall assist Secured Party in making such inspection.
8
That the security interest granted by such Debtor to Secured Party shall
continue effective irrespective of the payment of the Obligations, so long as
there are any obligations of any kind, including obligations under guaranties or
assignments, owed by any Debtor to Secured Party.
Xxxx and identify the Collateral with all information and such manner as Secured
Party may request from time-to-time and replace promptly any such markings or
identification which are removed, de laced or destroyed.
Indemnify and hold Secured Party harmless from and against all claims, losses
liabilities (including negligence, tort and strict liability), damages,
judgments, suits and all legal proceedings and any and all costs and expense in
connection therewith (including attorney's fees) arising out of or in any manner
connected with the manufacture, purchase, financing, ownership, delivery,
rejection, nondelivery, possession use, transportation storage operation,
maintenance, repair, return or other disposition of the Collateral or with this
Agreement or any other Loan Documents including, without limitation, claims for
injury to, or death of, persons and for damage, to property, and give Secured
Party prompt notice of such claim or liability.
Such Debtor will not sell, assign, transfer, dispose of or otherwise part with
possession or control or suffer or allow to pass out of its possession or
control items of Collateral listed on Schedule B without the prior written
consent of Secured Party.
That such Debtor shall not ASSIGN OR IN ANY WAY DISPOSE OF ALL OR ANY PART OF
ITS RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT OR SELL, LEASE OR TRANSFER OR
PLEDGE OR HYPOTHECATE ANY PART OF THE COLLATERAL. EACH DEBTOR'S INTEREST IN THIS
AGREEMENT AND THE COLLATERAL IS NOT ASSIGNABLE AND WILL NOT BE ASSIGNED OR
TRANSFERRED BY OPERATION OF LAW. CONSENT TO ANY OF THE FOREGOING PROHIBITED ACTS
APPLIES ONLY IN THE GIVEN INSTANCE AND IS NOT CONSENT TO SUBSEQUENT LIKE ACT BY
A DEBTOR OR ANOTHER ENTITY.
To (i) comply in all material respects with, and will obtain all material
permits required by, all Health Care Laws applicable to it and (ii) promptly
furnish to Secured Party a copy of any communication from any governmental
authority concerning any material violation of any Health Care Laws.
That it will not agree or consent to any amendments or modifications to any
agreement between any Debtor or Primedex Health System, Inc. and U.S. Bank (as
trustee and its affiliate (U.S. Bank Portfolio Services), as servicer with
respect to securitization trusts established by Secured Party or affiliates of
Secured Party but excluding DVI Receivables Corp. III), General Electric Capital
Corporation or Xxxxx Fargo Foothill (or any other financing which replaces such
financing containing terms (including, but not limited to, increasing interest
rates, accelerating the principal amortization or maturity, new or more
stringent defaults, additional collateral, and new remedies provisions) that
would be more onerous to any debtor or that would adversely impact or affect
Secured Party with respect to the terms of this Agreement.
That it will continue to satisfy all claims of third parties relating to any of
the Prior Financing Documents which are unfunded.
9
That it will not change its legal name, legal entity status or chief executive
office from that set forth on Schedule C hereto.
That it will not make any distribution or declare or pay any dividends (in cash
or other property, other than common stock) on, or purchase, acquire, redeem, or
retire any of the Debtor's stock, of any class, whether now or hereafter
outstanding (collectively, "DISTRIBUTIONS"); PROVIDED, HOWEVER, that so long as
no Event of Default shall have occurred and be continuing immediately prior to
or after giving effect to any such payment, (a) the Debtors may make
Distributions to Primedex Health Systems, Inc., a New York corporation (the
"PARENT") (1) in amounts necessary to pay customary expenses of Parent in the
ordinary course of its business as a public holding company (including salaries
and related reasonable and customary expenses incurred by employees of Parent)
in an aggregate amount not to exceed $750,000 in any fiscal year, (2) in amounts
necessary to enable Parent to pay taxes when due and owing by it in the ordinary
course of its business as a holding company and (3) in amounts necessary to
enable Parent to pay interest on those certain 11.5% Series A Convertible
Subordinated Notes due June 30, 2008, issued by Parent on June 25, 1993 and (b)
Parent may make Distributions in the form of common stock.
Commencing April 30, 2005, that the Debtors shall not permit the Fixed Charge
Coverage Ratio, (a) to be less than 1.0:1.0 as of the end of each April, July,
October and January (each, a "FISCAL QUARTER") ending prior to January 1, 2007,
and (b) to be less than 1.05:1 as of the last day of each Fiscal Quarter ending
thereafter. "FIXED CHARGE COVERAGE RATIO" means for any period, the ratio of (i)
EBITDA for such period MINUS cash capital expenditures made (to the extent not
already incurred in a prior period) or incurred during such period, to (ii) the
sum of (a) interest expense, (b) principal payments required to be paid during
such period in respect of indebtedness, and (c) all federal, state, and local
income taxes accrued, all as determined for the twelve months ending on the
determination date for RMI and its subsidiaries on a consolidated basis without
duplication and in accordance with generally accepted accounting principles
consistently applied. "EBITDA" means, with respect to any fiscal period, RMI and
its subsidiaries' consolidated net earnings (or loss), minus extraordinary gains
and interest income, plus interest expense, income taxes, and depreciation and
amortization for such period, all as determined for the twelve months ending on
the determination date for RMI and its subsidiaries on a consolidated basis
without duplication and in accordance with generally accepted accounting
principles consistently applied.
That it shall not permit the Leverage Ratio, as determined as of the end of each
Fiscal Quarter, to be greater than the amount set forth in the following table
for the Fiscal Quarters ending in the period set forth opposite thereto:
LEVERAGE RATIO PERIOD
-------------- ------
4.50:1.0 04/30/05 - 10/30/05
4.30:1.0 10/31/05 - 10/30/06
4.00:1.0 10/31/06 - 10/30/07
3.85:1.0 10/31/07 - 10/30/08
10
"LEVERAGE RATIO" means, at any date of determination, the
ratio of (a) Total Debt at such date to (b) EBITDA for the applicable period
ending on such date. "TOTAL DEBT" means, as of any date of determination,
without duplication, the sum of (a) the outstanding aggregate amount of the
obligations for borrowed money, (b) the outstanding principal amount of capital
leases, (c) the outstanding principal amount of purchase money indebtedness, (d)
the outstanding principal amount of funded debt, and (e) the outstanding
principal amount of all obligations owing to Secured Party, General Electric
Capital Corporation (and its affiliates) and U.S. Bank (and its affiliates); all
as determined for RMI and its subsidiaries on a consolidated basis without
duplication and in accordance with generally accepted accounting principles
consistently applied.
That it shall not permit the EBITDA Margin to be less than 25% as of the end of
any Fiscal Quarter ending on or after April 30, 2005. "EBITDA MARGIN" means for
any period, the ratio of (a) EBITDA for such period, to (b) net revenues
(excluding the professional service fee component of radiology services) for
such period, all as determined for the twelve months ending on the determination
date for RMI and its subsidiaries on a consolidated basis without duplication
and in accordance with generally accepted accounting principles consistently
applied.
That it shall not permit the Receivable Days to exceed 65 days as of the end of
any Fiscal Quarter ending on or after April 30, 2005. "RECEIVABLE DAYS" means
for any period, a number equal to (a) 365 divided by (b) the result of (i) net
revenues for such period divided by (ii) net receivables for such period, all as
determined for the twelve months ending on the determination date for RMI and
its subsidiaries on a consolidated basis without duplication and in accordance
with generally accepted accounting principles consistently applied.
EVENTS OF DEFAULT. ANY OF THE FOLLOWING
EVENTS OR CONDITIONS SHALL CONSTITUTE AN
EVENT OF DEFAULT HEREUNDER:
Default in payment of any installment of the principal or interest when and
after the same shall become due and payable, whether at the due date thereof, or
at the date fixed or prepayment or by acceleration or otherwise;
Default in the due observance or performance by any Debtor of any covenant or
agreement to be observed or performed by such Debtor under this Agreement or of
any other Loan Document delivered by such Debtor to Secured Party in connection
with this or any other transaction;
Any representation or warranty made by any Debtor herein or in any report,
certificate financial or other statement furnished in connection with this
Agreement shall prove to be false or misleading in any material respect; or
11
Any Debtor shall (i) be adjudicated insolvent or a bankrupt, or cease, be unable
or admit in writing its inability to pay its debts as they mature or make a
general assignment for the benefit of, or enter into any composition or
arrangement with, creditors; (ii) apply for or consent to the appointment of a
receiver, trustee or liquidator of it or of a substantial part of its property,
or authorize such application or consent, or proceedings seeking such
appointment shall be instituted against it without such authorization, consent
or application and shall continue undismissed for a period of 60 calendar days;
(iii) authorize or file a voluntary petition in bankruptcy or apply for or
consent to the application of any bankruptcy, reorganization in bankruptcy,
arrangement, readjustments of debts, insolvency, dissolution, moratorium or
other similar law of any jurisdiction, or authorize such application or consent,
or proceedings to such end shall be instituted against it without such
authorization application or consent and such proceeding instituted against it
shall continue undismissed for a period of 60 calendar days;
Whenever Secured Party, in good faith, believes the prospect of payment or
performance is impaired or in good faith believes the Collateral is insecure;
Any agreement made by a guarantor, surety or endorser for any Debtor's default
in any obligation or liability to Secured Party or any guaranty obtained in
connection with this transaction is terminated or breached;
If a judgment for the payment of money on any claim is rendered against any
Debtor in excess of $100,000; or
If any Debtor is in default of the terms and conditions of any indebtedness or
lease in excess of $100,000.
SECURED PARTY'S REMEDIES. EACH DEBTOR AGREES
THAT WHEN AN EVENT OF DEFAULT HAS OCCURRED
AND IS CONTINUING, SECURED PARTY SHALL HAVE
THE RIGHTS, OPTIONS, DUTIES AND REMEDIES OF
A SECURED PARTY AND DEBTOR SHALL HAVE THE
RIGHTS AND DUTIES OF A DEBTOR UNDER THE
UNIFORM COMMERCIAL CODE IN EFFECT IN EACH
JURISDICTION WHERE THE COLLATERAL OR ANY
PART THEREOF IS LOCATED AND, WITHOUT
LIMITING THE FOREGOING, SECURED PARTY MAY
EXERCISE ONE OR MORE OR ALL, AND IN ANY
ORDER, OF THE REMEDIES HEREINAFTER SET
FORTH:
Secured Party may declare the entire unpaid principal balance of the Loan to be
immediately due and payable; and thereupon all such unpaid balances, together
with all accrued an a unpaid interest thereon and all other Obligations, shall
be immediately due and payable;
12
Secured Party personally, or by agents or attorneys, shall have the right
(subject to compliance with any applicable mandatory legal requirements) to take
immediate possession of the Collateral or any portion thereof and for that
purpose may pursue the same wherever it may be found and may enter any of the
premises of any Debtor with or without notice, demand, process of law or legal
procedure, and search for, take possession of, remove, keep and store the same,
or use, operate, or lease the same until sold and may otherwise exercise any and
all of the rights and powers of any Debtor in respect thereof;
Secured Party, may if at the time such action may be lawful (and always subject
to compliance with any mandatory legal requirements), either with or without
taking possession, either before or after taking possession, and without
instituting any legal proceedings whatsoever having first given notice of such
sale by mail to the applicable Debtor once at least 10 calendar days prior to
the date of such sales and any other notice of such sale which may be required
by law if said notice is sufficient, sell and dispose of the Collateral or any
part thereof at public auction(s) to the highest bidder, or at a private sale(s)
in one lot as an entirety or in several lots, and either for cash or for credit
and on such terms as Secured Party may determine and at any place (whether or
not it is the location of the Collateral or any part thereof) designated in the
notice above referred to. Any such sale or sales may be adjourned from time to
time by announcement of the time and place appointed for such sale or sales, or
for such adjourned sales or sales without further notice, and Secured Party may
bid and become the purchaser at any such sale;
Secured Party may proceed to, protect, and enforce this Agreement and any other
Loan Documents by suit or suits or proceedings in equity, at law or in
bankruptcy, and whether for the specific performance of any covenant or
agreement herein contained or execution or aid of any power herein granted, or
for foreclosure hereunder, or for the appointment of a receiver or receivers for
the Collateral, or any party thereof, or for the enforcement of any proper,
legal or equitable remedy available under applicable law.
Secured Party may require any Debtor to assemble the Collateral and return it to
Secured Party at a place to be designated by Secured Party which is reasonably
convenient to both parties.
Debtors, jointly and severally, agree to pay the Secured Party all expenses of
retaking, holding, preparing for sale and/or selling the Collateral in addition
to attorneys' fees as above set forth.
Without limiting the rights of Secured Party under applicable law, Secured Party
has and may exercise a right of set-off, a lien against and a security interest
in all property of any Debtor now or at any time in Secured Party's or any
affiliate of Secured Party's possession in any capacity whatsoever, as security
for all of the Obligations. At any time and from time to time following the
occurrence of an Event of Default, Secured Party may without notice or demand,
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by Secured Party or any affiliate of Secured Party or for the credit of any
Debtor against any or all of the Obligations.
13
ACCELERATION CLAUSE. IN CASE OF ANY SALE OF
THE COLLATERAL, OR ANY PART THEREOF,
PURSUANT TO ANY JUDGMENT OR DECREE OF ANY
COURT OR OTHERWISE IN CONNECTION WITH THE
ENFORCEMENT OF ANY OF THE TERMS OF THIS
AGREEMENT, THE OUTSTANDING PRINCIPAL DUE,
THE INTEREST ACCRUED THEREON AND ALL OTHER
SUMS REQUIRED TO BE PAID BY DEBTORS PURSUANT
TO THIS AGREEMENT SHALL AT ONCE BECOME AND
BE IMMEDIATELY DUE AND PAYABLE.
EXERCISE OF RIGHTS. NO DELAY OR OMISSION OF
SECURED PARTY IN THE EXERCISE OF ANY RIGHT
OR POWER ARISING FROM ANY DEFAULT SHALL
EXHAUST OR IMPAIR ANY SUCH RIGHT OR POWER OR
PREVENT ITS EXERCISE DURING THE CONTINUANCE
OF SUCH DEFAULT. NO WAIVER BY SECURED PARTY
OF ANY SUCH DEFAULT, WHETHER SUCH WAIVER BE
FULL OR PARTIAL, SHALL EXTEND TO OR BE TAKEN
TO AFFECT ANY SUBSEQUENT DEFAULT OR TO
IMPAIR THE RIGHTS RESULTING THEREFROM EXCEPT
AS MAY BE OTHERWISE PROVIDED THEREIN. THE
GIVING, TAKING OR ENFORCEMENT OF ANY OTHER
OR ADDITIONAL SECURITY COLLATERAL, OR
GUARANTEE FOR THE PAYMENT OF THE OBLIGATIONS
SHALL NOT OPERATE TO PREJUDICE WAIVE, OR
AFFECT THE SECURITY OF THIS AGREEMENT OR ANY
RIGHTS, POWERS, OR REMEDIES HEREUNDER, AND
SECURED PARTY SHALL NOT BE REQUIRED TO LOOK
FIRST TO ENFORCE OR EXHAUST SUCH OTHER
ADDITIONAL SECURITY, COLLATERAL OR
GUARANTEES. ALL RIGHTS, REMEDIES, AND
OPTIONS OF SECURED PARTY HEREUNDER, OR BY
LAW SHALL BE CUMULATIVE.
14
ASSIGNMENT BY SECURED PARTY. SECURED PARTY
MAY ASSIGN OR TRANSFER THIS AGREEMENT, ANY
AND ALL OTHER LOAN DOCUMENTS, AND/OR SECURED
PARTY'S INTEREST IN ANY OF THE COLLATERAL
WITHOUT NOTICE TO ANY DEBTOR. ANY ASSIGNEE
OF SECURED PARTY SHALL HAVE ALL OF THE
RIGHTS BUT NONE OF THE OBLIGATIONS OF
SECURED PARTY UNDER THIS AGREEMENT, AND EACH
DEBTOR AGREES THAT IT WILL NOT ASSERT
AGAINST ANY ASSIGNEE OF SECURED PARTY ANY
DEFENSE, COUNTERCLAIM OR OFFSET THAT ANY
DEBTOR MAY HAVE AGAINST SECURED PARTY.
NON-TERMINABLE AGREEMENT; OBLIGATIONS
UNCONDITIONAL. THIS AGREEMENT CANNOT BE
CANCELLED OR TERMINATED EXCEPT AS EXPRESSLY
PROVIDED HEREIN. THIS AGREEMENT AND THE
OBLIGATIONS OF DEBTORS HEREUNDER SHALL
TERMINATE UPON PAYMENT IN FULL OF ALL THE
OBLIGATIONS; PROVIDE THAT TO THE EXTENT
SECURED PARTY IS REQUIRED TO RETURN ANY OF
THE OBLIGATIONS TO A DEBTOR OR OTHER PERSON
AS RESULT OF BANKRUPTCY PROCEEDING,
APPLICATION OF FRAUDULENT CONVEYANCE LAWS OR
OTHERWISE, THEN THIS AGREEMENT AND ALL LIENS
GRANTED BY DEBTORS DESCRIBED HEREIN SHALL BE
REINSTATED. EACH DEBTOR HEREBY AGREES THAT
ITS OBLIGATION TO PAY ALL OBLIGATIONS SHALL
BE ABSOLUTE AND UNCONDITIONAL AND SUCH
DEBTOR WILL NOT BE ENTITLED TO ANY ABATEMENT
OF PAYMENTS DUE UNDER THIS AGREEMENT OR ANY
REDUCTION THEREOF UNDER CIRCUMSTANCES OR FOR
ANY REASON WHATSOEVER. EACH DEBTOR HEREBY
WAIVES ANY AND ALL EXISTING AND FUTURE
CLAIMS, AS OFFSETS, AGAINST ANY PAYMENTS DUE
UNDER THIS AGREEMENT AS AND WHEN DUE
REGARDLESS OF ANY OFFSET OR CLAIM WHICH MAY
BE ASSERTED BY SUCH DEBTOR OR ON ITS BEHALF.
THE OBLIGATIONS AND LIABILITIES OF DEBTORS
HEREUNDER WILL SURVIVE THE TERMINATION OF
THIS AGREEMENT.
15
ADDITIONAL DOCUMENTS. IN CONNECTION WITH AND
IN ORDER FOR EFFECTIVE EVIDENCE OF THE
SECURITY INTEREST IN THE COLLATERAL GRANTED
SECURED PARTY UNDER THIS AGREEMENT, EACH
DEBTOR WILL EXECUTE AND DELIVER TO SECURED
PARTY SUCH FINANCING STATEMENTS AND SIMILAR
DOCUMENTS AS SECURED PARTY REQUESTS. EACH
DEBTOR AUTHORIZES SECURED PARTY WHERE
PERMITTED BY LAW TO MAKE FILINGS OF SUCH
FINANCING STATEMENTS WITHOUT DEBTOR'S
SIGNATURE. EACH DEBTOR FURTHER AGREES TO
FURNISH SECURED PARTY:
(i) Within thirty (30) days after the end of fiscal quarter of Debtors and
within ninety (90) days after the end of each fiscal year of Debtors, Debtors'
consolidated, consolidating and on a center by center basis, financial
statements, including Debtors' balance sheet (not on a center by center basis),
income and cash flow statements, prepared in accordance with generally accepted
accounting principles (and audited in the case of fiscal year end financial
statements), which reports, Debtors' represent and warrant shall fully and
fairly represent the true financial condition of such Debtors and (ii) updated
projections for Debtors and for each center;
Any other financial information normally provided by such Debtor (or its parent
holding company) to the public; and
Such other financial data or information relative to this Agreement and the
Collateral, including, without limitation, listings of serial numbers or other
identification data and confirmations of such information, as Secured Party may
time-to-time reasonably request. Each Debtor will procure and/or execute, have
executed, have acknowledged, and or deliver to Secured Party, record and file
such other documents and notices as Secured Party deems necessary or desirable
to protect its interest in and rights under this Agreement and Collateral.
Debtors will, jointly and severally, pay for all filings, searches, title
reports, legal and other fees incurred by Secured Party in connection with any
documents to be provided by Debtors pursuant to this Agreement and any other
similar documents Secured Party may procure.
CONDITIONS PRECEDENT. THIS AGREEMENT SHALL
BECOME EFFECTIVE ON THE DATE HEREOF SO LONG
AS EACH OF THE FOLLOWING CONDITIONS
PRECEDENT HAS BEEN SATISFIED IN FORM,
SUBSTANCE AND MANNER SATISFACTORY TO SECURED
PARTY:
Secured Party shall have received executed counterparts to this Agreement from
each Debtor;
Secured Party shall have received guaranty reaffirmations from Primedex Health
Systems, Inc., Xxxxxx Xxxxxx and Xxxx Xxxxxx (limited to $250,000 in the
aggregate for both Xxxxxx Xxxxxx and Xxxx Xxxxxx);
16
Secured Party shall have received a payment of $2,600,000 to be applied to
principal and interest under the Prior Financing Agreements that is currently
due and owing;
Secured Party shall have received from Debtors reimbursement for all Secured
Party Expenses incurred in connection with this Agreement;
Secured Party shall have received an acknowledgement from Primedex Health
Systems, Inc. that the obligations under its Guaranty in favor of Secured Party
constitutes "Senior Debt" under the documents evidencing its subordinated debt;
Secured Party shall have received evidence that all liens (except for liens in
favor of Secured Party) on the Collateral set forth or Schedule B hereto have
been released (or subordinated to Secured Party's liens) in a manner
satisfactory to Secured Party in Secured Party's sole discretion, and in
furtherance thereof, Secured Party shall have received satisfactory
intercreditor agreements from U.S. Bank (or its affiliate), General Electric
Capital Corporation (or its affiliates); DVI Receivables Corp. III and Xxxxx
Fargo Foothill;
RMI shall have satisfied all claims of third parties relating to any of the
Prior Financing Documents which are unfunded;
Secured Party shall have received releases from Xxxxxx and Vital Imaging, two
third party vendors who made claims on account of Secured Party's (or any of its
affiliate's) failure to fund equipment purchases under the Prior Financing
Documents;
Secured Party shall have received evidence that (i) the Debtors financing
arrangements with General Electric Capital Corporation and U.S. Bank will
simultaneously close on the date hereof and (ii) the Debtors financing
arrangements with Xxxxx Fargo Foothill will close by July 29, 2004;
Secured Party shall have received good standing certificates from the State of
California with respect to each Debtor; and
Secured Party shall have received a favorable opinion of Debtors' counsel, in
form and substance satisfactory to Secured Party.
17
RELEASE. IN CONSIDERATION OF THE TERMS AND
CONDITIONS PROVIDED BY SECURED PARTY
HEREUNDER, EACH DEBTOR, ON BEHALF OF ITSELF
AND ITS STOCKHOLDERS AND OTHER AFFILIATES
AND THEIR SUCCESSORS AND ASSIGNS
(COLLECTIVELY, "RELEASORS"), HEREBY FOREVER
WAIVE, RELEASE AND DISCHARGE TO THE FULLEST
EXTENT PERMITTED BY LAW ANY AND ALL CLAIMS
(INCLUDING, WITHOUT LIMITATION, CROSSCLAIMS,
COUNTERCLAIMS, RIGHTS OF SET-OFF AND
RECOUPMENT), CAUSES OF ACTION, DEMANDS,
SUITS, COSTS, EXPENSES AND DAMAGES
(COLLECTIVELY, THE "CLAIMS"), THAT ANY
RELEASOR NOW HAS OR HEREAFTER MAY HAVE, OF
WHATSOEVER NATURE AND KIND, WHETHER KNOWN OR
UNKNOWN, WHETHER NOW EXISTING OR HEREAFTER
ARISING, WHETHER ARISING AT LAW OR IN
EQUITY, AGAINST SECURED PARTY, OBSIDIAN
FINANCE GROUP, LLC, AP SERVICES, LLC,
XXXXXXX XXXXX, CREDIT PARTNERS, L.P., ABLECO
FINANCE, LLC, A3 FUNDING L.P AND THEIR
RESPECTIVE AFFILIATES, SHAREHOLDERS AND
"CONTROLLING PERSONS" (WITHIN THE MEANING OF
THE FEDERAL SECURITIES LAWS), AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS AND EACH
AND ALL OF THE OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, ATTORNEYS AND OTHER
REPRESENTATIVES OF EACH OF THE FOREGOING
(COLLECTIVELY, THE "RELEASEES"), BASED IN
WHOLE OR IN PART ON FACTS, WHETHER OR NOT
NOW KNOWN, EXISTING ON OR BEFORE THE
EXECUTION OF THIS AGREEMENT. THE RELEASE OF
CLAIMS SET FORTH IN THIS SECTION 18 SHALL
APPLY TO ALL CLAIMS ARISING UNDER THE PRIOR
FINANCING AGREEMENTS, INCLUDING, WITHOUT
LIMITATION, ANY OBLIGATIONS OF SECURED PARTY
TO FUND ADDITIONAL LOANS UNDER THE PRIOR
FINANCING AGREEMENTS.
18
JOINT AND SEVERAL LIABILITY.
Each of the Debtors shall be jointly and severally liable hereunder and under
each of the other Loan Documents with respect to all Obligations, regardless of
which of the Debtors actually received the proceeds of the Loan or the benefit
of any other extensions of credit from Secured Party, or the manner in which the
Debtors or the Secured Party account therefor in their respective books and
records. Neither the joint and several liability of, nor the liens granted to
the Secured Party under the Loan Documents by, any of the Debtors shall be
impaired or released by (i) the failure of the Secured Party or any successors
or assigns thereof, or any holder of any of the Obligations to assert any claim
or demand or to exercise or enforce any right, power or remedy against any
Debtor, any guarantor, the Collateral or otherwise; (ii) any extension or
renewal for any period (whether or not longer than the original period) or
exchange of any of the Obligations or the release or compromise of any
obligation of any nature of any Debtor with respect thereto; (iii) the
surrender, release or exchange of all or any part of any property (including
without limitation the Collateral) securing payment, performance and/or
observance of any of the Obligations or the compromise or extension or renewal
for any period (whether or not longer than the original period) of any
obligations of any nature of any Debtor with respect to any such property; (iv)
any action or inaction on the part of the Secured Party, or any other event or
condition with respect to any other Debtor, including any such action or
inaction or other event or condition, which might otherwise constitute a defense
available to, or a discharge of, such Debtor or of the Obligations; and (v) any
other act, matter or thing (other than payment or performance of the
Obligations) which would or might, in the absence of this provision, operate to
release, discharge or otherwise prejudicially affect the obligations of such
Debtor or any other Debtor.
To the extent that any Debtor shall make a payment under this SECTION 19 of all
or any of the Obligations (other than that portion of the Loan made to that
Debtor for which it is primarily liable) (a "GUARANTOR PAYMENT") that, taking
into account all other Guarantor Payments then previously or concurrently made
by any other Debtor, exceeds the amount that such Debtor would otherwise have
paid if each Debtor had paid the aggregate Obligations satisfied by such
Guarantor Payment in the same proportion that such Debtor's "Allocable Amount"
(as defined below) (as determined immediately prior to such Guarantor Payment)
bore to the aggregate Allocable Amounts of each of the Debtor as determined
immediately prior to the making of such Guarantor Payment, then, following
indefeasible payment in full in cash of the Obligations and termination of this
Agreement, such Debtor shall be entitled to receive contribution and
indemnification payments from, and be reimbursed by, each other Debtor for the
amount of such excess, pro rata based upon their respective Allocable Amounts in
effect immediately prior to such Guarantor Payment.
As of any date of determination, the "ALLOCABLE AMOUNT" of any Debtor shall be
equal to the maximum amount of the claim that could then be recovered from such
Debtor under this SECTION 19 without rendering such claim voidable or avoidable
under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable
state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or
similar statute or common law.
This SECTION 19 is intended only to define the relative rights of Debtors and
nothing set forth in this SECTION 19 is intended to or shall impair the
obligations of Debtors, jointly and severally, to pay any amounts as and when
the same shall become due and payable in accordance with the terms of this
Agreement.
19
The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets of the Debtors to which such
contribution and indemnification is owing.
The rights of the indemnifying Debtors against other Debtors under this SECTION
19 shall be exercisable upon the full and indefeasible payment of the
Obligations and the termination of this Agreement.
AMENDMENT AND RESTATEMENT. THIS AGREEMENT
AMENDS AND RESTATES THE PROVISIONS OF THE
PRIOR FINANCING AGREEMENTS AND, AS OF THE
DATE HEREOF, EXCEPT AS EXPRESSLY MODIFIED
HEREIN, ALL OF THE TERMS AND PROVISIONS OF
THE PRIOR FINANCING AGREEMENTS SHALL
CONTINUE TO APPLY FOR THE PERIOD PRIOR TO
THE DATE HEREOF, INCLUDING ANY
DETERMINATIONS OF PAYMENT DATES, INTEREST
RATES, EVENTS OF DEFAULT OR ANY AMOUNT THAT
MAY BE PAYABLE. THE OBLIGATIONS AND
LIABILITIES OF DEBTORS TO SECURED PARTY
UNDER THE PRIOR FINANCING AGREEMENTS SHALL
FROM AND AFTER THE DATE HEREOF BE DEEMED TO
CONTINUE UNDER THIS AGREEMENT AS THE
OBLIGATIONS OF DEBTORS TO SECURED PARTY AND
SHALL CONTINUE TO BE SECURED BY THE
COLLATERAL IN ALL CASES SUBJECT TO THE TERMS
AND CONDITIONS OF THIS AGREEMENT. THE
SECURITY INTERESTS AND LIENS IN THE
COLLATERAL SECURING THE OBLIGATIONS AND
LIABILITIES OF THE DEBTORS UNDER THE PRIOR
FINANCING AGREEMENTS SHALL CONTINUE AS
SECURITY INTERESTS AND LIENS IN THE
COLLATERAL SECURING THE OBLIGATIONS
HEREUNDER.
MISCELLANEOUS.
--------------
SUCCESSORS AND ASSIGNS. Whenever any of the parties hereto is referred to, such
reference shall be deemed to include the successors and assigns of such parties,
and all the covenants, promises and agreements in this Agreement contained by or
on behalf of Debtors or Secured Party shall bind and inure to the benefit of the
respective successors and assigns of each party whether so expressed or not.
PARTIAL INVALIDITY. The enforceability or invalidity of any provision(s) of this
Agreement shall not render any other provision(s) herein contained unenforceable
or invalid.
20
NOTICES. All notices, requests and other communications made or given in
connection with this Agreement or any of the other Loan Documents will be in
writing and will be deemed to be received (i) upon personal delivery to the
individual or division or department to whose attention notices to a party are
to be addressed by private carrier, (ii) three (3) business days after being
sent by registered or certified mail, return receipt requested or (iii) upon
confirmed receipt by telecopy or e-mail with the original forwarded by
first-class mail, in all cases, with charges prepaid, addressed to any Debtor,
at the address set forth below, and to Secured Party, at the addresses set forth
below:
To Debtors: c/o Xxxxxxx Radiology Medical Group III
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
To Secured Party: DVI Financial Services Inc.
0000 Xxxx Xxxx
Xxxxxxx, XX 00000
Attention: Chief Executive Officer
Telephone: (000)000-0000
Facsimile: (000) 000-0000
E-Mail: XXX@xxx-xxx.xxx
With Copy to: Xxxxxx & Xxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Vik Puri
Facsimile: (000) 000-0000
E-Mail: xxx.xxxx@xx.xxx
COUNTERPART; GOVERNING LAW. This Agreement may be executed, acknowledged, and
delivered in any number of counterparts, each of such counterparts constituting
an original but all together only one Agreement. This Agreement and any other
Loan Document (unless expressly set forth therein) shall be construed and
enforced in accordance with and governed by the laws of the Commonwealth of
Pennsylvania without resort to principles of conflicts of laws. Each Debtor
agrees to submit to the jurisdiction of the State and/or Federal Courts in the
Commonwealth of Pennsylvania.
ENTIRE AGREEMENT. This Agreement constitutes the entire understanding or
agreement between Secured Party and Debtors and there is no understanding or
agreement, oral or written, which is not set forth herein. This Agreement may
not be amended except by a writing signed by Secured Party and Debtors and shall
be binding upon and inure to the benefit of the parties hereto, their permitted
successors and assigns.
[SIGNATURE PAGES FOLLOW]
21
IN WITNESS WHEREOF, Secured Party and Debtors have caused this
Agreement to be duly executed as of the day and year first above written.
SECURED PARTY:
-------------
DVI FINANCIAL SERVICES INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
DEBTORS:
RADNET MANAGEMENT, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
DIAGNOSTIC IMAGING SERVICES, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
22
