Exhibit 4.14
AMENDED AND RESTATED ASSIGNMENT AGREEMENT
THIS AGREEMENT made this 17th day of December, 2002.
B E T W E E N:
NATIONAL BANK OF CANADA,
a Canadian chartered bank,
(hereinafter referred to as the "Bank")
OF THE FIRST PART,
- AND -
ANALOGIC CORPORATION,
a corporation incorporated under the laws
of the State of Massachussetts,
(hereinafter referred to as "Analogic")
OF THE SECOND PART
WHEREAS:
(a) Pursuant to a commitment letter dated January 12, 2001 (the "Original
Commitment Letter") the Bank made the following credit facilities
(together the "Original Credit Facilities") available to Cedara Software
Corp. (the "Company"):
(i) revolving line of credit up to the maximum principal amount of
$12,000,000.00, subject to margin availability;
(ii) landlord letter of credit facility in the amount of $667,000.00;
(iii) non-revolving facility in the maximum amount of $1,000,000.00; and
(iv) business mastercard facility limited to $100,000.00;
(b) Pursuant to a Commitment Letter dated January 7, 2002 and attached as
Schedule A hereto (the "Commitment Letter"), the Original Credit
Facilities have been replaced and superceded by the following credit
facilities (together, the "Credit Facilities"):
(i) revolving line of credit limited to the maximum principal amount
of $9,000,000.00, with no limitation as to margin availability
("Facility A");
(ii) landlord letter of credit in the maximum amount of $498,000.00
("Facility B"); and
(iii) business mastercard facility in the maximum amount of $100,000.00
("Facility C");
(c) The Bank and Analogic entered into an assignment agreement (the "Original
Assignment Agreement") dated January 18, 2002 providing for, among other
things, the assignment by the Bank to Analogic of the Indebtedness (as
defined therein) upon the occurrence of certain events and upon the terms
and conditions set out therein;
(d) Pursuant to a letter agreement dated December 17, 2002 and attached as
Schedule A hereto (the "Letter Agreement"), the Credit Facilities have
been amended as follows:
(i) the maximum amount of funds available under Facility A (the
"Principal Limit") has been increased from $9,000,000.00 to
$10,000,000.00. The Principal Limit may be further increased at
the request of the Company in increments of $1,000,000.00 up to
the maximum amount of $12,000,000.00 on the terms described
therein;
(ii) the maximum amount of funds available under Facility B has been
decreased from $498,000.00 to $332,000.00; and
(iii) the Bank has made available to the Company a new cheque-credit
clearing facility in respect of any overdraft arising under the
operating account in the name of the Company with the New York
office of the Bank ("Facility D"). Advances under Facility D are
limited to the maximum principal amount of USD $500,000.00;
Hereafter, all references to the Credit Facilities refer to the Credit
Facilities as amended by the Letter Agreement;
(e) Advances to the Company by the Bank under the Credit Facilities shall
vary from time to time but shall not exceed $11,000,000.00, or such
higher amount in the event the Principal Limit is increased in accordance
with sub-paragraph (c) (i) above. All indebtedness of the Company to the
Bank under the Credit Facilities inclusive of interest and costs shall be
referred to herein as the "Indebtedness";
(f) The Company has executed and delivered in favour of the Bank the security
as summarized in Schedule "B" attached hereto (collectively referred to
herein as the "Security"), as general and continuing security for the
payment of the Indebtedness;
(g) To secure Analogic's obligations to the Bank under this Agreement,
Analogic has arranged for delivery to the Bank of a standby letter of
credit (the "Letter of Credit") from Sovereign Bank of Boston, confirmed
by Bank of New York in the amount of $11,000,000.00, provided that the
Letter Agreement provides that it is a condition precedent to any further
increase to the Principal Limit that the amount of the Letter of Credit
shall first be increased by the amount of the
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increase in the Principal Limit and that the revised Letter of Credit be
delivered to the Bank in form satisfactory to the Bank as set out in the
Letter Agreement and that at no time may advances under the Credit
Facilities in the aggregate exceed the amount of the Letter of Credit as
such may be amended from time to time;
(h) The Bank and Analogic wish to amend and restate the Original Assignment
Agreement on the terms and conditions set forth herein; and
(i) The Bank has agreed to sell, transfer and assign the Indebtedness and the
Security to Analogic on the terms described herein.
NOW THEREFORE in consideration of the payment by Analogic to the Bank of the sum
of $10.00 TEN DOLLARS, the mutual covenants and agreements contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are acknowledged by each party to the other, the parties hereto agree as
follows:
1. Notwithstanding anything to the contrary contained in this Agreement, so
long as any Indebtedness is outstanding, (a) the Bank shall be permitted
to make a demand for payment under the Letter of Credit (a "Demand") at
any time without any prior notice to Analogic or the Company and (b)
nothing contained herein shall limit the Bank's ability or right to make
a Demand or to receive payment under the Letter of Credit.
2. Following a Demand, the Bank shall use its best efforts to notify
Analogic within two (2) business days (being a day, other than a
Saturday, Sunday or public holiday, on which banks are open for business
in the cities of Toronto and Boston ) (a "Business Day") in accordance
with the terms of this Agreement that a Demand has been made. The Bank
shall have no liability to Analogic nor shall any of the Bank's rights
under this Agreement be affected in the event that the Bank fails to
provide such notice to Analogic.
3. Analogic hereby offers (the "Offer") to purchase the Indebtedness and the
Security from the Bank on the terms and conditions set forth in this
Agreement and in Schedule "C". Upon a Demand being made by the Bank, the
Bank shall be deemed to have accepted the Offer. The purchase price
payable by Analogic for the purchase of the Indebtedness and Security
(the "Purchase Price") shall be the amount of the Indebtedness as at the
L/C Closing Date (as defined below) and the funds received by the Bank in
satisfaction of the Demand shall be on account of the Purchase Price. The
closing of the purchase and sale of the Indebtedness and Security
following a Demand being made by the Bank shall be the date upon which
the Bank receives immediately available funds under the Letter of Credit
in accordance with the Demand (the "L/C Closing Date") in an amount equal
to the Indebtedness provided, however, that if the funds paid to the Bank
under the Letter of Credit are not equal to the Indebtedness, then the
L/C Closing Date shall be extended until such time as Analogic pays to
the Bank the balance of the Indebtedness, current to the date of such
payment by way of wire transfer, certified funds drawn on a Canadian
chartered bank or other immediately available funds. On the L/C Closing
Date, the Bank shall be deemed to have sold, transferred and assigned the
Indebtedness and Security to Analogic, and Analogic shall be deemed to
have paid the Purchase Price, all on the terms
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and conditions set forth in this Agreement and in Schedule "C" without
any further act of either party being required to complete such sale,
transfer and assignment.
4. For greater certainty, the parties acknowledge that amounts received by
the Bank pursuant to a Demand shall be on account of the Purchase Price
and not on account of the Indebtedness.
5. If, following the L/C Closing Date, the Letter of Credit is not fully
drawn, the Bank shall return the Letter of Credit to Analogic forthwith.
6. Analogic shall be entitled at any time to require the Bank by delivery of
a written notice to the Bank (the "Call Notice") delivered at any time
after the date of this Agreement in accordance with the terms hereof, and
the Bank hereby agrees, to sell to Analogic the Indebtedness and the
Security (the "Call Right") on the terms and conditions set forth in
Schedule "C".
7. The purchase price payable by Analogic upon any exercise of the Call
Right (the "Call Right Purchase Price") shall be an amount equal to the
Indebtedness determined as of the Call Right Closing Date (as defined
below). Analogic may not exercise the Call Right once a Demand has been
made by the Bank.
8. The completion of the purchase and sale of the Indebtedness and Security
pursuant to any exercise of the Call Right shall be completed on the
fifth Business Day following receipt by the Bank of a Call Notice (the
"Call Right Closing Date"). On the Call Right Closing Date, upon payment
of the Call Right Purchase Price by Analogic to the Bank by way of wire
transfer, certified funds drawn on a Canadian chartered bank or other
immediately available funds or as may otherwise be agreed by the parties,
the Bank shall be deemed to have sold, transferred and assigned the
Indebtedness and Security to Analogic on the terms and conditions set
forth in this Agreement and in Schedule "C" without any further act of
either party being required to complete such sale, transfer and
assignment.
9. The delivery to the Bank of a Call Notice shall not prohibit the Bank
from making a Demand. In the event that the Bank makes a Demand following
the receipt by the Bank of a Call Notice and prior to payment to the Bank
of the Call Right Purchase Price, the provisions of Article 3 of this
Agreement shall govern the purchase of the Indebtedness and the Security
by Analogic from the Bank.
10. The Bank covenants that it shall not sell, transfer, assign, participate
or otherwise dispose of any of its rights under the Indebtedness, the
Security or the Letter of Credit without first providing Analogic with
not less than ten (10) Business Days written notice in accordance with
the terms of this Agreement of its intention to do so. In the event the
Bank does not receive a Call Notice from Analogic prior to the expiry of
such ten (10) Business Day period, the Bank may sell, transfer, assign,
participate or otherwise dispose of such interests without restriction;
provided that any person to whom the Bank sells, transfers, assigns,
participates or otherwise disposes of such interest shall have executed
and delivered in favour of Analogic an agreement to be bound by the terms
hereof.
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11. All amounts owing by the Company to the Bank under the Credit Facilities
are payable on demand. Nothing in this Agreement shall be construed to
limit the Bank's ability to demand repayment of the Indebtedness or to
terminate the Credit Facilities in accordance with the terms of the
Commitment Letter as amended by the Letter Agreement at any time without
prior notice to any party, including Analogic, provided, however, that if
a Demand has been made by the Bank, the Bank agrees that it shall not
demand payment of the Indebtedness until the expiry of two Business Days
following such Demand if during such two Business Day period no funds
have been paid to the Bank under the Letter of Credit.
12. Nothing contained in this Agreement is intended to or shall impair the
obligations of the Company to repay the Indebtedness to the Bank (or to
Analogic following the assignment of the Indebtedness and Security to
Analogic in accordance with the terms of this Agreement) as and when such
Indebtedness shall become due and payable in accordance with its terms
nor shall anything herein prevent the Bank or Analogic, as the case may
be, from exercising all remedies provided to the Bank or to Analogic
under the Security or as otherwise permitted by applicable law. Upon
repayment of the Indebtedness by the Company to the Bank and termination
of the Credit Facilities, this Agreement shall be deemed to be of no
further force and effect, in which case the Bank shall return the Letter
of Credit to Analogic.
13. The amount of the Indebtedness shall be determined, at all times, solely
by reference to the Bank's records. Such records shall stand as
conclusive evidence of the amount of the Indebtedness.
14. In the event that on or prior to the time of closing on the L/C Closing
Date or the Call Right Closing Date, as applicable (each, the "Closing
Time"), notice in writing has been given to the Bank by a party entitled
to redeem the Security or the Indebtedness that it intends to do so, the
Bank shall notify Analogic of such notice, and the assignment of the
Indebtedness and the Security shall be completed on the terms described
herein subject to any rights of the party which has given the foregoing
notice.
15. In the event that on or prior to the Closing Time either the Indebtedness
or the Security has been partially or fully redeemed or permanently
repaid following enforcement of the Security, the parties agree as
follows:
(a) in the case of a partial redemption of the Security or the
Indebtedness, the Bank shall apply the funds paid to the Bank
under such partial redemption in reduction of the Indebtedness,
and the assignment of the Indebtedness and the Security shall be
completed in accordance with the provisions hereof, subject to any
rights of the party which has partially redeemed the Indebtedness
or the Security; and
(b) in the case of permanent repayment of the Indebtedness through
enforcement of the Security or a complete redemption of the
Indebtedness or the Security such that no Indebtedness remains
outstanding as at the Closing Time, Analogic shall not be required
to pay the Purchase Price to the Bank and the Bank shall forthwith
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return to Analogic the Letter of Credit and any funds paid to or
received by the Bank on account of the Purchase Price.
16. (a) In the event that on or before the Closing Time a proceeding
(a "Proceeding") has been commenced before or a final or
interlocutory order (an "Order") has been issued by a court of
competent jurisdiction, seeking to order or ordering that the
assignment of the Indebtedness and the Security contemplated by
this Agreement be delayed or otherwise not completed in accordance
with the terms of this Agreement, the parties agree to extend the
Closing Time until such time as any such Proceeding has been
discontinued or withdrawn and no final order of a court of
competent jurisdiction exists prohibiting the parties from
carrying out the terms of this Agreement. Analogic acknowledges
and agrees that if the Closing Time is extended as aforesaid, the
Purchase Price shall be equal to the amount of the Indebtedness
outstanding as at the Closing Time, as such may be extended in
accordance with this provision, and shall include all accrued
interest and costs incurred by the Bank as at that date.
(b) Notwithstanding paragraph (a) of this section 16, unless the
Proceeding or the Order seeks to order or actually orders that the
Bank may not make a Demand or receive payment under the Letter of
Credit, nothing shall prevent the Bank from making a Demand or
receiving payment under the Letter of Credit or applying such
funds in reduction of the Indebtedness, subject to the right of
Analogic to obtain the assignment of the Indebtedness and the
Security at the Closing Time, as such may be extended in
accordance with this provision. In the event that the Closing Time
is extended in accordance with this provision, the Bank will hold
the rights of Analogic in the Indebtedness and the Security in
trust for Analogic.
17. The Indebtedness may consist of amounts contingently owing to third
parties pursuant to a letter or letters of credit or guarantee issued by
the Bank on behalf of the Company in accordance with the terms of the
Credit Facilities (individually a "Bank L/C"). The amount of any such
Bank L/C shall be included in the Bank's calculation of the Indebtedness,
even if such Bank L/C has not yet been drawn upon by the beneficiary
thereof. If, as at the Closing Date, any Bank L/C remains outstanding and
has not yet been drawn upon, the Bank shall hold in a separate interest
bearing account that part of the Purchase Price equal to the Bank's
liability under the Bank L/C. Following the Closing Date, if a Bank L/C
expires or is returned to the Bank prior to payment being made by the
Bank thereunder, the Bank shall return to Analogic that part of the
Purchase Price attributable to the Bank L/C together with any interest
accrued thereon.
18. Analogic acknowledges and agrees that the Credit Facilities shall be made
available to the Company in accordance with the terms of the Commitment
Letter as amended by the Letter Agreement without regard to the margin
formula or any of the other conditions contained in the Original
Commitment Letter. Analogic acknowledges and agrees in favour of the Bank
that it shall make no claim against the Bank arising from the Bank's
refusal or failure to monitor or enforce any of the covenants, the margin
formula or any other term of the Original Commitment Letter. Analogic
acknowledges in favour of the Bank that notwithstanding the Bank has made
the Credit Facilities available to the
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Company pursuant to the Commitment Letter, as amended by the Letter
Agreement, the priority agreement between the Bank, 0000000 Ontario Inc.
and the Company dated February 8, 2001, as the same may be amended from
time to time, shall govern the priority of the Security and Indebtedness
following any sale of the Indebtedness and Security to Analogic under the
terms of this Agreement.
19. Subject to applicable laws, the Bank shall not without the prior written
consent of Analogic: (i) amend the sections of the Commitment Letter
entitled "Amount", "Interest Rate", "Demand Nature of the Facilities", or
"Security"; (ii) consent to the undertaking by the Company of any of the
transactions or operations listed under the section of the Commitment
Letter entitled "Negative Covenants"; (iii) amend the Letter Agreement or
the Credit Facilities (other than as specifically contemplated in the
Letter Agreement); or (iv) amend the Security or grant any release or
discharge or otherwise compromise its interest therein. Notwithstanding
the foregoing, nothing contained herein shall be construed as limiting
the Bank's ability to make any and all filings and registrations
necessary or desirable in order to preserve or maintain its interest in
the Security.
20. From time to time upon request therefor, the Bank and Analogic may
advise each other of and exchange any information or documentation
which they may have relating to the affairs of the Company, including
without limitation, the Credit Facilities, the Company's business and
financial affairs, the particulars of the Indebtedness and the Security
and the liability of the Company to the Bank and Analogic. The Company
hereby consents to any such exchange of information.
21. This Agreement shall be construed and interpreted in accordance with
the laws of the Province of Ontario and the parties hereto irrevocably
submit to the jurisdiction of the Superior Court of Justice (Ontario).
22. The parties hereto agree that this Agreement shall enure to the benefit
of and binding upon, the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns.
23. This Agreement may be executed manually, or by facsimile signature by
the parties hereto and may be executed in separate counterparts, each
of which when so executed and delivered shall be an original, and such
counterparts shall together constitute one and the same instrument. To
the extent that this Agreement is executed by facsimile signature, the
parties who are executing it shall forthwith deliver to the other
parties manually executed copies thereof.
24. All notices or documents contemplated by this Agreement shall be sent
in writing, via facsimile or by overnight or same day courier to the
following address, as applicable, and shall be deemed to have been
received on the earlier of actual receipt of such notice or document or
the first business day after being so sent:
In respect of the Bank:
National Bank of Canada
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx XX X0X 0X0
-7-
Attention: Xxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
In respect of Analogic:
Analogic Corporation
0 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX
00000
Attention: Xxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
25. At the cost of the requesting party, the parties hereto agree to do all
such further acts and things and execute all such further instruments as
may be necessary or desirable to fully effect the purchase and sale of
the Indebtedness and the Security following the exercise of a Demand or a
Call Right, as the case may be.
IN WITNESS WHEREOF the parties hereto have duly executed this
Agreement as of the date first mentioned above.
NATIONAL BANK OF CANADA
Per: /s/ Xxxxx Xxxxxxxxx
---------------------------------------------
Xxxxx Xxxxxxxxx
Manager, National Accounts
ANALOGIC CORPORATION
Per: /s/ Xxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President & CFO
I have the authority to bind the Corporation
The undersigned acknowledges receipt of a copy of this Amended and Restated
Assignment Agreement and agrees to be bound by the terms hereof and to make
all payments due in respect
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of the Indebtedness and the Security to Analogic in the event of a purchase of
the Indebtedness and the Security by Analogic in accordance with the provisions
hereof.
CEDARA SOFTWARE CORP.
Per: /s/ Xxxxxx Xxxxxxxx
---------------------------------------------
Xxxxxx Xxxxxxxx
Chief Financial Officer & Corporate Secretary
I have the authority to bind the Corporation
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SCHEDULE "A"
COMMITMENT LETTER AND LETTER AGREEMENT
--------------------------------------
[National Bank of Canada
logo graphic omitted]
January 7, 2002
PERSONAL AND CONFIDENTIAL
Cedara Software Corp.
0000 Xxxxxxx Xxxx
Xxxxxxxxxxx XX X0X 0X0
Attention: Xx. Xxxxxx Xxxxxxxx
---------
Dear Sirs:
National Bank of Canada (the '"Bank") agrees to make available to Cedara
Software Corp. (the "Borrower") the following credit facilities (the "Credit
Facilities") aggregating $9,598,000 subject to the following terms and
conditions. This Agreement replaces and supercedes all previous commitment
letters, term sheets or other agreements governing the credit facilities made
available by the Bank to the Borrower.
AMOUNT: 1. $9,000,000.00 by way of an Operating Loan pursuant
------ to this agreement and a revolving demand credit
agreement in the Bank's standard form. Available by
way of direct advances or Letters of Credit. The
indebtedness of the Borrower under the Operating
Loan may only be reduced by the amount of "Cleared
Funds" on deposit in the Borrower's accounts with
the Bank from time to time. For the purposes hereof,
"Cleared Funds" shall mean cash, wire transfers or
other negotiable instruments deposited to the
Borrower's accounts with the Bank which have cleared
pursuant to the Clearing House Rules promulgated by
the Canadian Payments Association or cash, wire
transfers or other negotiable instruments deposited
to the Borrower's accounts with the Bank drawn on
accounts maintained outside of Canada to which the
Canadian Clearing House Rules do not apply and which
have been honoured by the originating institution,
all as determined by the Bank.
2. $498,000.00 by way of a Letter of Credit pursuant
to this agreement and an indemnity agreement in the
Bank's standard form.
3. $100,000.00 by way of Mastercard Businesscard.
PURPOSE: 1. To finance the Borrower's usual operating
------- requirements.
2. To secure the company's obligations under a premises
lease.
3. For issuance of Businesscard expense account cards
in accordance with the Bank's standard Mastercard
documentation.
INTEREST RATE: 1. Canadian Prime rate of the Bank plus 0.5%
------------- per annum, calculated daily and payable
monthly in arrears on the 26th day of each month.
2. The Bank's standard rates to apply.
3. The Bank's standard rates to apply.
The Bank's Prime Rate is defined as the rate of interest
per annum established from time to time by the Bank as
its reference rate then in effect for determining the
interest rate per annum it will charge on loans in
Canadian dollars to customers of varying degrees of
creditworthiness. As of the date hereof the Prime Rate
is 4.0%.
REPAYMENT: The Credit Facilities are repayable on demand. If,
--------- as at the date of any demand for payment by the
Bank, the Borrower's indebtedness under the Credit
Facilities is comprised of any letters of credit,
letters of guarantee or other contingent liabilities
of the Bank to third parties, the Borrower shall, at
the time it permanently repays its indebtedness to
the Bank under the Credit Facilities, post cash
collateral with the Bank in an amount equal to the
full amount of any such contingent liabilities to
third parties to which the Bank is exposed.
1. Disbursements and payments shall be made to or
collected from the Borrower in equal multiples of
$200,000.
2. In accordance with the indemnity agreement.
3. Payable in full monthly.
Upon cancellation of the Credit Facilities and upon
permanent repayment of all of the Borrower's indebtedness
to the Bank (including an accrued interest and costs
incurred by the Bank), the Bank shall discharge all
security held by the Bank for the obligations of the
Borrower under the Credit Facilities.
DEMAND NATURE OF The Borrower and the Guarantors acknowledge and agree
---------------- that notwithstanding anything contained herein to the
OF THE FACILITIES: contrary, these Credit Facilities constitute demand loans
----------------- and, as such, are due and payable at any time at the sole
discretion of the Bank. The Bank may, at any time for any
reason, and without prior notice to the Borrower or any
other party, terminate the Credit Facilities, whereupon
no further credit shall be available to the Borrower
thereunder.
SECURITY: As general and continuing security for the performance
-------- by the Borrower of all its obligations, present and
future, towards the Bank, including, without limitation,
the repayment of advances granted hereunder and the
payment of interest, fees, costs and any other amounts
provided for hereunder and under the security documents,
the Borrower undertakes to grant to the Bank and
maintain at all times the following security (the
"Security"), in form satisfactory to the Bank:
1. General Security Agreement dated February 7, 2001
2. Source Code Escrow Agreement dated February 8, 2001
3. Landlord waiver of distraint dated February 9, 2001
4. Priority Agreement dated February 8, 2001 with
1144938 Ontario Inc., as amended by letter
agreement dated January, 2002
5. Undertaking re: Patent Security dated February 7,
2001
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6. Unlimited Guarantee from Dicomit Dicom Information
Technologies Corp. ("Dicomit") dated January 31,
2001 supported by a General Security Agreement
7. General Security Agreement from Dicomit dated
January 31, 2001
8. Unlimited Guarantee from Surgical Navigation
Specialists Inc. ("SNS") dated January 31, 2001
9. General Security Agreement from SNS dated February
15, 2001
10. Unlimited Guarantee from Cedara Software USA Corp.
dated January 31, 2001
11. Acknowledgement of Debt Revolving Demand Credit
Agreement
12. Commitments Respecting Irrevocable Standby Letters
of Credit supporting letters of credit or guarantee
issued by the Bank at the request of the Borrower
ASSIGNMENT OF The Borrower and the Guarantors acknowledge and agree
------------- that the Bank has entered into an agreement with
SECURITY: Analogic Corporation ("Analogic") to sell the Security
-------- and all indebtedness owing to the Bank under the Credit
Facilities. Analogic will provide to the Bank a
$10,000,000.00 unconditional standby letter of credit as
security for payment of the purchase price payable to
the Bank upon closing of the transaction described in
that agreement. All documentation between the Bank and
Analogic with respect to that transaction, as well as
the $10,000,000.00 unconditional standby letter of
credit, must be held in form satisfactory to the Bank as
a condition precedent to the Credit Facilities being
made available to the Borrower, precedent to the Credit
Facilities being made available to the Borrower.
POSITIVE COVENANTS: During the entire term of this financing, the
------------------ Borrower shall:
1. Use the proceeds of the financing for the purposes
provided for herein.
2. Carry on business in the nature of or related to
the business transacted by the Borrower prior to
the date hereof in the name and for the account of
the Borrower.
3. Keep and maintain books of account and other
accounting records in accordance with generally
accepted accounting principles.
4. At all times, give the Bank's representatives the
right to inspect its establishments and provide
access thereto, and further permit the Bank's
representatives to examine its books of account and
other records, and take excerpts therefrom and/or
copies thereof.
5. Maintain, at all times, insurance coverage on its
property against loss or damage caused by fire and
any other risk as is customarily maintained by
companies carrying on a similar business.
6. Pay, when due, all taxes, assessments, deductions
at source, income tax, levies or any other payments
which may rank prior to the Bank's security,
without subrogation or consolidation.
7. Conduct all or the greater part of its banking
business with the Bank.
8. Ensure all assets secured by the Bank's security
are in existence and in the possession and control
of the Borrower in a manner satisfactory to the
Bank.
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9. Deposit only to the Borrower's account with the
Bank all accounts receivable and other income
generated by the business transacted by the
Borrower.
NEGATIVE The Borrower undertakes not to carry out the following
-------- transactions or operations without obtaining the prior
COVENANTS: consent of the Bank, in writing:
----------
1. Materially change the nature of its operations or
business.
2. Change the control of the company.
3. Merge or amalgamate with another company, dissolve
or wind up the company.
4. Create or permit the existence of security on
property granted as security to the Bank.
5. Grant loans to its officers, directors,
shareholders or related parties (including any
guarantors of the Borrower's indebtedness to the
Bank) other than in the normal course of business.
6. Grant a loan or make an investment in or provide
financial assistance to a third party (including
any guarantors of the Borrower's indebtedness to
the Bank) by way of a suretyship, guarantee or
otherwise.
7. Declare or pay dividends on its shares.
8. Purchase or redeem its shares or otherwise reduce
its capital.
9. Sell any of its assets, property or undertaking out
of the ordinary course of its business.
10. Perform any business or transaction in the name of
or recorded or applied for the benefit of any
person firm or corporation other than the Borrower.
11. Open or maintain operating, current or any other
accounts with any other financial institution.
REPORTING 1. Within 30 days of each month-end, the Borrower
CONDITIONS: shall provide the Bank with an internally
---------- prepared financial statement as at that month end.
2. The Borrower agrees to submit to the Bank its
annual audited financial within 140 days of the end
of its fiscal year.
FEES: 1. Commitment fee of $50,000 payable upon acceptance
---- of this Commitment letter.
2. $350 monthly management fee.
3. Standby fee of 0.375% per annum on the unused
portion of Facility 1, calculated and payable
monthly.
All fees may be deducted directly from such accounts of
the Borrower with the Bank as the Bank may determine.
ENVIRONMENTAL: 1. The Borrower represents and warrants that the owner
------------- of the subject property has complied and is
OBLIGATIONS: complying in all respects with all applicable laws
----------- relating to the environment, that no contaminants,
pollutants or other hazardous substances
(including, without limitation, asbestos, products
containing urea formaldehyde or polychlorinated
biphenyl or any
-13-
radioactive substances) have been or are now stored
or located at the subject property, that no order,
approval, direction or other governmental or
regulatory notice relating to the environment has
been threatened against, is pending or has been
issued with respect to the subject property or the
operations of the business being conducted at the
subject property, and that none of them is aware of
any pending or threatened action, suit or
proceedings relating to any actual or alleged
environmental violation from or at the subject
property.
2. The Borrower agrees to pay the cost of all
environmental audits which may be deemed necessary
by the Bank.
3. The Borrower certifies that, to the best of their
knowledge, past and present owners have not
violated environmental law and regulations and
that, to the best of their knowledge, no
proceedings have been or are being instituted to
make him comply with environmental laws and
regulations.
4. The Borrower agrees to comply with and respect any
and all environmental laws and regulations.
DEFAULT: Without limiting the fact that all indebtedness
------- of the Borrower to the Bank is payable on demand
by the Bank, the occurrence of one or more the
following events shall constitute a default
under this agreement:
1. the Borrower fails to make a payment of principal,
interest, fees or any other amount when due
hereunder or under any of the Security documents;
2. the Borrower fails to perform or otherwise breaches
any obligation hereunder or pursuant to any of the
Security documents or any other agreement with or
document in favour of the Bank;
3. the Borrower becomes insolvent, bankrupt or is in
the process of winding up, assigns its assets for
the benefit of its creditors, files a proposal or
gives notice of its intention to file such proposal
or if a material, adverse change occurs, in the
opinion of the Bank, in the financial position or
operations of the Borrower;
4. proceedings are instituted by the Borrower or a
third party for the Borrower's dissolution,
winding-up or reorganization of its operations or
the arrangement or readjustment of its debts or
seeking a stay against any creditor of the Borrower
or guarantor;
5. a creditor, trustee in bankruptcy, sequestrator,
receiver, receiver and manager or trustee is
appointed or takes possession of all or any portion
of the Borrower's assets or if such assets are
subject to a prior security interest or are seized;
6. the Borrower is in default under the terms of any
other contracts, agreements or writings with any
other bank or financial institution or any other
creditor and such default does, or with the passage
of time may, materially negatively impact the
Bank's security position or the Borrower's
financial position;
7. any representation or warranty made by the Borrower
herein or in a Security document or any other
document furnished to the Bank proves to be
incorrect or erroneous at the time made;
8. the Bank receives from any future guarantor a
notice proposing to terminate, limit or otherwise
modify such guarantor's liability hereunder, under
the guarantee or under a Security document or under
any other document in favour of the Bank; or
9. the Borrower ceases or threatens to cease to carry
on business in the ordinary course.
-14-
REMEDIES UPON Without limiting the Bank's right to demand repayment of
------------- or to terminate the Credit Facilities described herein
DEFAULT: at any time, upon the occurrence of a default the Bank
------- may, at its option, enforce all of its rights and
remedies against the Borrower including, without
limitation, enforcing some or all of the Security and
immediately terminating the availability of any credit
under the Credit Facilities made available to the
Borrower pursuant to the terms hereof.
NON-MERGER: The provisions of this commitment letter shall not merge
---------- with any security granted to the Bank and shall continue
in full force and effect. The provisions of the Security
are in addition to the provisions of this commitment
letter. If there is any conflict between the provisions
of any of the documents comprising the Security and the
provisions of this commitment letter, the provisions of
this commitment letter shall prevail.
OTHER 1. Unless otherwise defined herein, each accounting
----- term used herein shall have the meaning ascribed to
CONDITIONS: it in accordance with accounting principles
---------- generally accepted by the Canadian Institute of
Chartered Accountants.
2. The Bank shall keep records evidencing the
transactions effected under this financing. Such
records shall be presumed to reflect these
transactions and shall constitute conclusive
evidence of the amounts due to the Bank.
3. The Borrower hereby authorizes any personal
information agent, financial institution, creditor,
tax authority, employer or any other person,
including any public entity, holding information
concerning the Borrower or its assets, more
particularly any financial information or
information with respect to any undertaking or
suretyship given by the Borrower, to supply such
information to the Bank in order to verify the
accuracy of all information furnished or to be
furnished from time to time to the Bank and to
ensure the solvency of the Borrower at all times.
4. The Borrower irrevocably authorizes the Bank to
debit periodically or from time to time any bank
account it may maintain at the Bank in order to pay
all or part of the amounts it may owe to the Bank
hereunder.
5. No rights or obligations of the Borrower hereunder
and no proceeds of the loan may be transferred or
assigned by the Borrower, any such transfer or
assignment being null and void insofar as the Bank
is concerned and rendering any balance then
outstanding of the loan immediately due and payable
at the option of the Bank and releasing the Bank
from any and all obligation of making any further
advances hereunder.
6. The Borrower shall do all things and execute all
documents deemed necessary or appropriate by the
Bank for the purposes of giving full force and
effect to the terms, conditions, undertakings
hereof and the Security granted or to be granted
hereunder.
SEVERABILITY: If any provision of this commitment letter is or becomes
------------ prohibited or unenforceable in any jurisdiction, such
prohibition and unenforceability shall be severable from
all other provisions of this agreement and shall not
invalidate or render unenforceable the provision
concerned in any other jurisdiction nor shall it
invalidate effect or impair any of the remaining
provisions.
GOVERNING LAW: This agreement shall be construed in accordance
------------- with and governed by the laws of the Province of
Ontario and the laws of Canada applicable therein.
-15-
Time shall be of the essence in all respects of this
agreement.
SET-OFF OF The Borrower hereby acknowledges and agrees
---------- that the Bank may apply any amounts outstanding to the
ACCOUNTS: credit of the Borrower and any account or accounts with
-------- the Borrower in set-off or in combination of the
Borrower's loan accounts in reduction of amounts owing
by the Borrower to the Bank. The application of any such
funds shall be as the Bank may determine.
COSTS: All costs incurred by the Bank presently or hereafter in
----- relation to this financing, including legal and
appraisal fees, are for the account of the Borrower and
may be directly debited by the Bank for payment without
further authorization.
ANNUAL REVIEW: These credit facilities may be reviewed at least
------------- annually, and in any event not later than October 31,
2002.
If these conditions are acceptable to you please indicate your acceptance by
signing and returning the first copy of this letter before January 15,2002.
After that date this offer of financing will become null and void. Upon
acceptance this agreement shall revoke and supersede all previous credit
agreements, offers, proposals and discussions.
Yours sincerely,
NATIONAL BANK OF CANADA
Per: /s/ Xxxxx Xxxxxxxx Per: /s/ D. Xxxxxxx Xxxxxxx
----------------------- ----------------------
Name: Xxxxx Xxxxxxxx Name: D. Xxxxxxx Xxxxxxx
Title: Senior Manager Title: Senior Manager
-16-
For consideration received, the undersigned accept the terms and conditions of
this offer of financing.
CEDARA SOFTWARE CORP.
Per: /s/ Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer and Corporate Secretary
(I have authority to bind the corporation)
DICOMIT DICOM INFORMATION CEDARA SOFTWARE USA CORP.
TECHNOLOGIES CORP.
Per: /s/ Xxxx Xxxxxxx Per: /s/ Xxxxxxx Xxxxxxxxx
---------------------- -----------------------
Name: Xxxx Xxxxxxx Name: Xxxxxxx Xxxxxxxxx
Title: Director Title: Director
(I have authority to (I have authority to
bind the corporation) bind the corporation)
-00-
Xxxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX X0X 0X0
[National Bank of Canada
logo graphic omitted]
December 17, 2002
PERSONAL AND CONFIDENTIAL
Via Courier Delivery
Cedara Software Corp.
0000 Xxxxxxx Xxxx
Xxxxxxxxxxx Xxxxxxx
X00000
Attention: Xxxxxx Xxxxxxxx
Dear Sir;
Re: Indebtedness of Cedara Software Corp. to National Bank of Canada
We refer to the credit facilities made available to Cedars Software Corp. (the
"Borrower") by National Bank of Canada (the "Bank") pursuant to the commitment
letter from the Bank to the Borrower dated January 7, 2002 (the "Commitment
Letter"). Unless otherwise specified, all capitalized terms used herein have the
meanings ascribed thereto in the Commitment Letter.
The Borrower has requested and the Bank has agreed to amend the terms of the
Credit Facilities on the terms described below. The following amendments to the
Credit Facilities shall only become effective upon satisfaction of the
conditions precedent described below.
1. The maximum amount of funds available (the "Principal Limit") under the
Borrower's operating line of credit with the Bank (the "Operating
Loan") shall be increased from $9,000,000.00 to $10,000,000.00. The
Principal Limit may be further increased at the request of the Borrower
in increments of $1,000,000.00 up to the maximum amount of $12,
000,000.00 subject to the conditions precedent described below.
2. The maximum amount of funds available under Facility B shall be
decreased from $498,000.00 to $332,000.00.
3. The Bank shall make available to the Borrower a new cheque credit
clearing facility in respect of any overdraft arising under the
operating account in the name of the Borrower with the New York office
of the Bank ("Facility D"). Advances under Facility D shall be limited
to the maximum principal amount of USD $500,000.00.
4. The increase in the Principal Limit under the Operating loan from
$9,000,000.00 to $10,000,000.00 and the provision of Facility D to the
Borrower shall not be effective until such time as the amount of the
standby letter of credit delivered to the Bank by Analogic Corporation
(the "Letter of Credit") to secure Analogic Corporation's obligations to
the Bank under the terms of that certain amended and restated assignment
agreement dated December 12, 2002 between the Bank and Analogic (the
"Assignment Agreement") has been increased from $10,000,000.00 to
$11,000,000.00 and such Letter of Credit is held by the Bank in the form
satisfactory to the Bank.
5. It shall be a condition precedent to any further increases to the
Principal Limit under the Operating Loan that the Borrower provide ten
(10) business days written notice to Analogic Corporation and the Bank
of its requirement for further funds.
6. It shall be a further condition precedent to any further increases to
the Principal Unit under the Operating Loan that the amount of the
Letter of Credit shall first be increased by the amount of the increase
in the Principal Limit and that the revised Letter of Credit shall be
held by the Bank in form satisfactory to the Bank.
7. At no time may advances under the Credit Facilities in the aggregate
exceed the amount of the letter of Credit as such may be amended from
time to time. At all times the Assignment Agreement and the Letter of
Credit must be held by the Bank in form satisfactory to the Bank as a
condition precedent to the Credit Facilities being made available to the
Borrower.
8. The next annual review date for the Credit Facilities shall be October
31, 2003.
9. In consideration of the foregoing amendments to the Credit Facilities,
the Borrower shall pay to the Bank a renewal fee of $60,000.00, which
shall be earned by the Bank upon execution of this Agreement by all
parties hereto. The Borrower specifically authorizes the Bank to debit
from the Operating Loan the amount of such fee upon execution of this
Agreement by all parties hereto.
10. Except as specifically amended hereby, the terms of the Commitment
Letter shall remain in effect, unamended and the Borrower restates and
realfirms the terms of the Commitment Letter as amended by the terms of
this Agreement as of the date of this Agreement.
11. This Agreement may be executed manually, or by facsimile signature by
the parties hereto and may be executed in separate counterparts, each of
which when so executed and delivered shall be an original, and such
counterparts shall together constitute one and the same instrument. To
the extent that this Agreement is executed by facsimile signature, the
parties who are executing it shall forthwith deliver to the other
parties manually executed copies thereof.
Yours very truly,
NATIONAL BANK OF CANADA
Per: /s/ Xxxxx Xxxxxxxxx
------------------------
Xxxxx Xxxxxxxxx
December 17, 2002
For consideration received, the undersigned accepts the terms and conditions
of this Agreement
CEDARA SOFTWARE CORP
Per: /s/ Xxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer &
Corporate Secretary
The undersigned acknowledges and consents to the amendments to the Credit
Facilities contemplated by this Agreement.
ANALOGIC CORPORATION
Per: /s/ Xxxx X. Xxxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President & CFO
SCHEDULE "B"
SECURITY
--------
1. General Security Agreement dated February 7, 2001.
2. Landlord waiver of distraint dated February 9, 2001.
3. Priority Agreement dated February 8, 2001 with 1144938 Ontario Inc.,
as amended from time to time.
4. Source Code Escrow Agreement dated February 8, 2001.
5. Undertaking re: Patent Security dated February 7, 2001.
6. Unlimited Guarantee from Dicomit Dicom Information Technologies Corp.
("Dicomit") dated January 31, 2001.
7. General Security Agreement from Dicomit dated January 31, 2001.
8. Acknowledgement of Debt Revolving Demand Credit Agreement dated
January 7, 2002.
9. Commitments respecting Irrevocable Standby Letters of Credit supporting
letters of credit or guarantee by the Bank at the request of Cedara
Software Corp., dated January 7, 2002.
10. Promissory Note made by Cedara Software Corp. in respect of MasterCard
BusinessCard indebtedness, dated January 7, 2002.
SCHEDULE "C"
TERMS AND CONDITIONS OF THE ASSIGNMENT OF INDEBTEDNESS AND SECURITY
-------------------------------------------------------------------
All capitalized terms not otherwise defined in this Schedule "C" shall have the
meanings ascribed thereto in the Amended and Restated Assignment Agreement to
which this Schedule is annexed (the "Assignment Agreement"). Schedule "C" is
subject to the terms of the Assignment Agreement.
1. Upon receipt of the Purchase Price at the Closing Time in the amount and
in the manner provided in the Assignment Agreement, National Bank of
Canada (the "Assignor") shall assign, transfer and set over unto
Analogic Corporation (the "Assignee"), its successors and assigns, the
Commitment Letter, the Letter Agreement, the Indebtedness, the Security,
and all the right, title and interest of the Assignor in, to and under
the Commitment Letter, the Letter Agreement, the Credit Facilities, the
Indebtedness, the Security and in the property, assets and undertaking
of Cedara Software Corp. (the "Company") thereby secured, mortgaged,
charged and assigned together with the full benefit of all powers and
all covenants and provisos contained in the Commitment Letter, the
Letter Agreement, the Security and any promissory notes or evidence of
the Indebtedness owing to the Assignor by the Company.
2. The Assignee shall have and hold the Indebtedness, the Security and all
monies arising in respect thereof and to accrue thereon together with
the interest and costs properly exigible thereon and the property,
assets and undertaking of the Company thereby secured, mortgaged,
charged and assigned to the use of the Assignee, its successors and
assigns, absolutely, but subject always to the terms and provisions
contained herein and in the Security.
3. The Assignor represents, warrants and covenants with the Assignee, its
successors and assigns, that as at the Closing Time:
(a) provided that the Indebtedness has not been repaid or the
Indebtedness or Security has not been fully or partially redeemed,
that the Indebtedness is owing and payable, and that the Assignor
has not released or discharged the Security;
(b) provided that the Indebtedness has not been repaid or the
Indebtedness or Security has not been fully or partially redeemed,
the Assignor has the right to assign, transfer and set over the
Commitment Letter, the Letter Agreement, the Indebtedness and the
Security to the Assignee and hereby authorizes the Assignee to
execute, deliver and file the requisite financing change
statements pursuant to the Personal Property Security Act
(Ontario) (the "PPSA") in respect of the assignment contemplated
herein;
(c) the Assignor has done no act to encumber the Commitment Letter,
the Letter Agreement, the Indebtedness and the Security and hereby
releases all of its interest in the Indebtedness and the Security
to the Assignee;
1
(d) the Assignor agrees that it shall, at the reasonable request and
expense of the Assignee, do all such further acts and things and
execute and deliver such further instruments, documents, matters,
papers and assurances as are reasonably necessary or desirable for
effectuating the assignment of the interests of the Assignor in
the Commitment Letter, the Letter Agreement, the Indebtedness and
the Security to the Assignee; and
(e) save as contained herein, the Assignor makes no representation,
warranty or covenant as to any matter or thing whatsoever,
including, without limitation, the validity, enforceability or
priority of the Commitment Letter, the Letter Agreement, the
Indebtedness or the Security or as to the existence of, value of
or title to the collateral described therein.
4. The Assignee represents, warrants and covenants with the Assignor that
as at the Closing Time:
(a) the Assignee acknowledges and agrees that it has relied upon its
own diligence and has satisfied itself with respect to all things
relating to the Commitment Letter, the Letter Agreement, the
Indebtedness and the Security, save and except for the
representations, warranties and covenants herein contained;
(b) the Assignee agrees to be bound by all loan and security documents
in respect of the Commitment Letter, the Letter Agreement, the
Indebtedness and the Security in such a manner as if it were a
signatory to such documents;
(c) the Assignee hereby acknowledges and agrees to and in favour of
the Assignor that the Assignor has made no representations,
warranties, covenants, agreements, promises or statements, express
or implied or by statute, as to any cause, matter or thing
whatsoever with respect to or in any way connected with the
Commitment Letter, the Letter Agreement, the Credit Facilities,
the Indebtedness or the Security, including, without limiting the
generality of the foregoing, the validity, enforceability,
registration, perfection or priority of the Security or any part
thereof, or the nature, description or value of the collateral
charged by the Security or any part thereof save and except for
the representations and warranties made by the Assignor to the
Assignee herein; and
(d) the Assignee acknowledges and agrees that the assignment of the
Commitment Letter, the Letter Agreement, the Indebtedness and the
Security herein provided for is without recourse as against the
Assignor.
5. To the extent that any of the Security referenced herein is not
assignable or is not assignable without the consent or other action of a
third party (the "Non-Assignable Security"), this Agreement shall not
assign such Non-Assignable Security or shall only actually assign such
Non-Assignable Security upon the necessary consent of such third party
being received by the Assignor and the Assignee. The Assignor shall hold
the Non-Assignable Security in trust for the benefit of the Assignee
until such time as the Non-Assignable Security becomes assignable or the
Assignor receives the necessary consent or other action of any required
third party to assign the Non-Assignable Security. Until
2
that time, the Assignor shall have no obligation or duty to do any act
in respect of the Non-Assignable Security. All proceeds received by the
Assignor with respect to the Non-Assignable Security shall be held by
the Assignor in trust for the Assignee in an account specifically
designated for that purpose. The Assignee shall pay the Assignor's fees,
charges and disbursements, including without limitation, legal fees
incurred by the Assignor as Trustee of the Non-Assignable Security
(collectively the "Expenses") and the Assignee agrees to indemnify the
Assignor in the amount of such Expenses provided, however, that the
Assignor may deduct the amount of such Expenses out of any proceeds or
other amounts received by the Assignor arising from or in relation to
the Non-Assignable Security, and such Expenses shall not form part of
the proceeds held in trust for the Assignee.
3
