Exhibit 10.12
[ALLIANCE MEDICAL CORPORATION LETTERHEAD]
EMPLOYMENT AGREEMENT
Agreement made this 10th day of November 2000 between ALLIANCE MEDICAL
CORPORATION ("Employer") and BRIAN BERCHTOLD ("Employee"). The parties hereto,
intending to be legally bound hereto, agree upon the following terms of
employment of Employee by Employer.
1. TERM. Employment shall commence NOVEMBER 15th 2000 and shall
terminate as provided in paragraph 5.
2. DUTIES. Employee is employed in the capacity of VICE PRESIDENT OF
SALES and shall perform such duties for Employer, and its affiliates, as may be
requested of Employee by Employer.
3. PERFORMANCE BY EMPLOYEE. Except as may be otherwise directed or
approved by Employer from time to time, during the period of employment under
this Agreement, Employee shall devote his full time and efforts to the business
and affairs of Employer and shall perform his duties competently and
efficiently. Employee agrees that during the period of his employment under
this Agreement he will not undertake any outside business affiliations without
the prior written approval of Employer.
Employee may engage in such personal investment activities during the term
of this Agreement as Employee deems appropriate and consistent with Employee's
position hereunder so long as such activities do not materially interfere with
the performance of Employee's duties under this Agreement and are not in
contravention of this Agreement.
4. COMPENSATION. For all services to be performed by Employee during the
term of employment under this Agreement (including, without limitation,
services as an officer, director, employee, member of any committee of Employer
or of any division or subsidiary of Employer, or otherwise), Employee shall:
(a) Receive an annual salary at the rate of One Hundred and Fifty
Thousand Dollars ($150,000) per year. Salary payments shall be made in
accordance with Employer's customary practice, but not less than bi-weekly.
(b) Participation in Company Bonus Program at the rate of 50% of
base annual salary.
(c) Receive options of 75,000 at Fair Market Value subject to normal
vesting of Alliance (see attached) and 10,000 at Fair Market Value to vest at
completion of the first 180 days of employment.
(d) Car allowance in accordance with the existing Company Travel and
Entertainment policy, up to Six Hundred and Fifty dollars ($650) per month.
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(e) In addition to any cash compensation payable hereunder, be
entitled to participate in the Employer's 401(k) plan and receive medical and
dental benefits generally made available to employees of Employer.
(f) Be entitled to three (3) weeks paid vacation during each full
year that this Agreement is in force. Such vacation shall be non-cumulative. The
time, or times, during which vacation is taken shall first be approved by
Employer.
(g) Be re-imbursed by Employer for any reasonable expenses incurred
in conjunction with this employment within thirty (30) days of submitting same.
Employee shall present to Employer an itemized written account of expenses
within thirty (30) days after they have been incurred. Employee shall not be
re-imbursed for expenses in substantial amounts unless they have been approved,
in advance, by Employer.
5. TERMINATION. This Agreement shall be terminated upon the happening
of any of the following events:
(a) Death. The Employee's death;
(b) Disability. In the event Employee becomes physically or mentally
disabled so as to become unable, for a period of more than Ninety (90)
consecutive calendar days or for more than Ninety (90) calendar days in the
aggregate during any twelve-month period, to perform his duties hereunder on a
full-time basis, Employer may at its option terminate Employee's employment
hereunder upon written notice;
(c) Cause. Employer may terminate Employee's employment hereunder for
Cause. "Cause" shall include but not be limited to:
(i) dishonesty in connection with the duties to be performed by
Employee;
(ii) continuing inattention to or neglect of the duties to be
performed by Employee, which inattention or neglect is not the result of illness
or accident;
(iii) willful disloyalty to Employer or any of its affiliates; or
(iv) violation of any of the provisions of Paragraphs 6 and 7
hereunder.
(d) Without Cause. Employer, at its option, may terminate Employee's
employment hereunder for any reason and without cause upon ninety (90) days
written notice to Employee.
6. DISCLOSURE OF INFORMATION. Employee shall not, during or any time
after termination of employment hereunder (whether or not for cause), without
authorization of Employer, disclose or make use of for himself or for any person
or corporation or other entity, any files or trade secrets or other confidential
information concerning the business, clients, methods, operations, financing or
services of Employer or its affiliates. Trade secrets and confidential
information shall mean information disclosed to Employee or known by him as a
consequence of
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his employment by Employer, whether or not pursuant to this Agreement, and not
generally known to or used by competitors in Employer's business.
7. COVENANT NOT TO COMPETE.
(A) Restrictive Covenant. For a period of two (2) years after
termination of Employee's employment, whether or not for cause, Employee shall
not, within the Restricted Area as hereinafter defined, directly or indirectly
own, operate, control, be employed by, participate in, or be connected in any
way with the ownership, management, operation or control of any business which
is substantially similar to the business of Employer or any affiliate of
Employer to which Employee has provided services. FOR PURPOSES OF THIS SECTION,
THE "RESTRICTED AREA" MEANS THE UNITED STATES OF AMERICA.
(B) Solicitation of Customers or Employees. In furtherance of the
foregoing, and not in limitation thereof, for a period of two (2) years after
termination of employment (whether or not for cause), Employee shall not,
within the product market and within the Restricted Area set forth in
subparagraph (A) above, directly or indirectly solicit or service in any way,
on behalf of himself or on behalf of or in conjunction with others, any client
or customer, or prospective client or customer, which has been solicited or
serviced by Employer or any affiliate of Employer within one (1) year prior to
the termination of his employment.
So long as Employee is employed by Employer and for a period of
two (2) years after termination of employment, Employee shall not solicit any
employee of Employer or any of its affiliates to become employed by or
otherwise associated with Employee in any other business.
(C) Competitive Activities. Employee shall be deemed to be competing
with Employer or soliciting a customer, prospective customer or employee of
Employer if, without the knowledge and written consent of the Board of Directors
of Employer, Employee is engaged in any such activity directly or indirectly,
whether for his own account or as a principal, agent, proprietor, officer,
director, employee, consultant or in any other capacity for any other person,
corporation or other entity. The foregoing provision, however, shall not
prohibit Employee from investing in securities of any corporation whose
securities are listed on a national securities exchange or traded in the
over-the-counter market if Employee shall be the owner, beneficially or of
record, of less than five percent (5%) of any class of the stock of such
corporation.
(D) Extension of Period. If Employee violates this restrictive
covenant and Employer brings legal action for injunctive or other relief,
Employer shall not, as a result of the time involved in obtaining such relief,
be deprived of the benefit of the full period of the restrictive covenant.
Accordingly, the restrictive covenant shall be deemed to have the duration
specified in subparagraph (A) hereof, computed from the date such relief is
granted but reduced by the time expired between the date the period of
restriction began to run and the date of the first violation of the covenant by
Employee.
(E) Reformation or Judicial Modification. Employee acknowledges and
agrees that the duration and geographical restrictions set forth herein have
been specifically discussed and negotiated and are reasonable in view of all
the facts and circumstances known to Employee. Nevertheless, if any court shall
determine that such duration or geographical limits are
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unenforceable, the restrictions set forth herein shall be deemed modified to
apply for the maximum duration and geographical area which are reasonable in
view of all the facts and circumstances, and the Agreement shall be reformed to
that extent.
8. REMEDIES OF EMPLOYER. As an employee of Employer, Employee may have
access to customer lists, trade secrets and other confidential information of
Employer. Moreover, his continued employment will be instrumental to the
continuity and development of Employer's business. Employee therefore
acknowledges that the restrictions contained in Paragraphs 6 and 7 of this
agreement are a reasonable and necessary protection of the legitimate interests
of Employer, that any violation of them could cause substantial injury to
Employer and that Employer would not have entered into this Agreement with
Employee without receiving the additional consideration of Employee's binding
himself to said restrictions. In the event of any violation of the said
restrictions, Employer shall be entitled, in addition to any other remedy, to
preliminary and permanent injunctive relief.
9. SURRENDER OF BOOKS AND RECORDS. Employee acknowledges that all
files, lists, books, records, literature, products and any other materials
owned by Employer or its affiliates or used by them in connection with the
conduct of their business, shall at all times remain the property of Employer
and its affiliates and that upon termination of employment hereunder,
irrespective of the time, manner or cause of said termination, Employee will
surrender to Employer and its affiliates all such lists, books, records,
literature, products and other materials.
10. SEVERABILITY. The invalidity or unenforceability of any particular
provision, or any part thereof, of this Agreement shall not affect the other
provisions hereof and this Agreement shall be continued in all respects as if
such invalid or unenforceable provision were omitted.
11. NOTICES. All notices, requests, demands and other communications
required under this Agreement shall be in writing and shall be deemed duly
given and received (i) if personally delivered, on the date of delivery; (ii)
if mailed, three (3) days after deposit in the United States mail, registered
or certified, return receipt requested, postage prepaid and addressed as
provided below, or (iii) if by a courier delivery service providing overnight
or "next day" delivery, on the next business day after deposit with such
service, addressed as follows:
If to Employer: Alliance Medical Corporation
10232 South 51st Street
Phoenix, Arizona 85044
Copy to: Mr. Michael Perry
Jennings, Strouss & Salmon
Two North Central Avenue
Phoenix, Arizona 85004
If to Employee: Brian Berchtold
6647 N. Praying Monk Road
Paradise Valley, Arizona 85253
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Any party may change its above-designated address by giving the other party
written notice of such change in the manner set forth herein.
12. SUCCESSORS IN INTEREST. This Agreement shall be binding upon, inure
to the benefit of, and be enforceable by and against the respective heirs,
executors, administrators, personal representatives, successors and permitted
assigns of any of the parties to this Agreement.
13. WAIVER. No waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute, a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver, and no waiver
shall be binding unless executed in writing by the party making the waiver.
14. GOVERNING LAW; JURISDICTION. Except as expressly provided herein,
this Agreement shall be construed in accordance with, and governed by, the laws
of the State of Arizona, without regard to the application of conflicts of law
principles. Except in respect of an action commenced by a third party in
another jurisdiction, the parties agree that any legal suit, action or
proceeding arising out of or relating to this Agreement must be instituted in
the State or Federal court in the City of Phoenix, Maricopa County, State of
Arizona, and they hereby irrevocably submit to the jurisdiction of any such
court.
15. ATTORNEYS' FEES. In the event an action or suit is brought by any
party hereto to enforce the terms of this Agreement, the prevailing party shall
be entitled to the payment of reasonable attorneys' fees and costs, as
determined by the judge of the court.
16. ENTIRE AGREEMENT; MODIFICATIONS. This Agreement constitutes the
entire agreement among the parties and supercedes all prior and contemporaneous
agreements and understandings of the parties with respect to the subject matter
hereof. No supplement, modification or amendment of this Agreement shall be
binding and enforceable unless executed in written by the parties hereto.
17. HEADINGS. Headings contained in this Agreement are inserted only as
a matter of convenience and in no way define, limit, extend or describe the
scope of this Agreement or of any provisions hereof.
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
"EMPLOYER" "EMPLOYEE"
- ------------------------- ----------------------------
By: R.M. (Rick) Ferreira BRIAN BERCHTOLD
Its: Chief Executive Officer
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Exhibit 10.12(a)
MASTER SECURITY AGREEMENT
dated as of OCTOBER 4, 2001 ("AGREEMENT")
THIS AGREEMENT is between GENERAL ELECTRIC CAPITAL CORPORATION
(together with its successors and assigns, if any, "SECURED PARTY") and
ALLIANCE MEDICAL CORPORATION ("DEBTOR"). Secured Party has an office at 401
Merritt 7 Suite 23, Norwalk, CT 06851. Debtor is a corporation organized and
existing under the laws of the state of Delaware. Debtor's mailing address
and chief place of business is 10232 S 51st street, Phoenix, AZ 85044.
1. CREATION OF SECURITY INTEREST.
Debtor grants to Secured Party, its successors and assigns, a security
interest in and against all property listed on any collateral schedule now or
in the future annexed to or made a part of this Agreement ("COLLATERAL
SCHEDULE"), and in and against all additions, attachments, accessories and
accessions to such property, all substitutions, replacements or exchanges
therefor, and all insurance and/or other proceeds thereof (all such property
is individually and collectively called the "COLLATERAL"). This security
interest is given to secure the payment and performance of all debts,
obligations and liabilities of any kind whatsoever of Debtor to Secured
Party, now existing or arising in the future, including but not limited to
the payment and performance of certain Promissory Notes from time to time
identified on any Collateral Schedule (collectively "NOTES" and each a
"NOTE"), and any renewals, extensions and modifications of such debts,
obligations and liabilities (such Notes, debts, obligations and liabilities
are called the "INDEBTEDNESS"). Unless otherwise provided by applicable law,
notwithstanding anything to the contrary contained in this Agreement, to the
extent that Secured Party asserts a purchase money security interest in any
items of Collateral ("PMSI COLLATERAL"): (i) the PMSI Collateral shall secure
only that portion of the Indebtedness which has been advanced by Secured
Party to enable Debtor to purchase, or acquire rights in or the use of such
PMSI Collateral (the "PMSI INDEBTEDNESS"), and (ii) no other Collateral shall
secure the PMSI Indebtedness.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR.
Debtor represents, warrants and covenants as of the date of this
Agreement and as of the date of each Collateral Schedule that:
(a)Debtor's exact legal name is as set forth in the preamble of this
Agreement and Debtor is, and will remain, duly organized, existing and in
good standing under the laws of the State set forth in the preamble of this
Agreement, has its chief executive offices at the location specified in the
preamble, and is, and will remain, duly qualified and licensed in every
jurisdiction wherever necessary to carry on its business and operations;
(b)Debtor has adequate power and capacity to enter into, and to perform
its obligations under this Agreement, each Note and any other documents
evidencing, or given in connection with, any of the Indebtedness (all of the
foregoing are called the "DEBT DOCUMENTS");
(c)This Agreement and the other Debt Documents have been duly
authorized, executed and delivered by Debtor and constitute legal, valid and
binding agreements enforceable in accordance with their terms, except to the
extent that the enforcement of remedies may be limited under applicable
bankruptcy and insolvency laws;
(d)No approval, consent or withholding of objections is required from
any governmental authority or instrumentality with respect to the entry into,
or performance by Debtor of any of the Debt Documents, except any already
obtained;
(e)The entry into, and performance by, Debtor of the Debt Documents
will not (i) violate any of the organizational documents of Debtor or any
judgment, order, law or regulation applicable to Debtor, or (ii) result in
any breach of or constitute a default under any contract to which Debtor is a
party, or result in the creation of any lien, claim or encumbrance on any of
Debtor's property (except for liens in favor of Secured Party) pursuant to
any indenture, mortgage, deed of trust, bank loan, credit agreement, or other
agreement or instrument to which Debtor is a party;
(f)There are no suits or proceedings pending in court or before any
commission, board or other administrative agency against or affecting Debtor
which could, in the aggregate, have a material adverse effect on Debtor, its
business or operations, or its ability to perform its obligations under the
Debt Documents, nor does Debtor have reason to believe that any such suits or
proceedings are threatened;
(g)All financial statements delivered to Secured Party in connection
with the Indebtedness have been prepared in accordance with generally
accepted accounting principles, and since the date of the most recent
financial statement, there has been no material adverse change in Debtors
financial condition;
(h)The Collateral is not, and will not be, used by Debtor for personal,
family or household purposes;
(i)The Collateral is, and will remain, in good condition and repair and
Debtor will not be negligent in its care and use;
(j)Debtor is, and will remain, the sole and lawful owner, and in
possession of, the Collateral, and has the sole right and lawful authority to
grant the security interest described in this Agreement; and
(k)The Collateral is, and will remain, free and clear of all liens,
claims and encumbrances of any kind whatsoever, except for (i) liens in favor
of Secured Party, (ii) liens for taxes not yet due or for taxes being
contested in good faith and which do not involve, in the judgment of Secured
Party, any risk of the sale, forfeiture or loss of any of the Collateral, and
(iii) inchoate materialmen's, mechanic's, repairmen's and similar liens
arising by operation of law in the normal course of business for amounts
which are not delinquent (all of such liens are called "PERMITTED LIENS").
3. COLLATERAL.
(a)Until the declaration of any default, Debtor shall remain in
possession of the Collateral; except that Secured Party shall have the right
to possess (i) any chattel paper or instrument that constitutes a part of the
Collateral, and (ii) any other Collateral in which Secured Party's security
interest may be perfected only by possession. Secured Party may inspect any
of the Collateral during normal business hours after giving Debtor reasonable
prior notice. If Secured Party asks, Debtor will promptly notify Secured
Party in writing of the location of any Collateral.
(b)Debtor shall (i) use the Collateral only in its trade or business,
(ii) maintain all of the Collateral in good operating order and repair,
normal wear and tear excepted, (iii) use and maintain the Collateral only in
compliance with manufacturers recommendations and all applicable laws, and
(iv) keep all of the Collateral free and clear of all liens, claims and
encumbrances (except for Permitted Liens).
(c)Secured Party does not authorize and Debtor agrees it shall not (i)
part with possession of any of the Collateral (except to Secured Party or for
maintenance and repair), (ii) remove any of the Collateral from the
continental United States, or (iii) sell, rent, lease, mortgage, license,
grant a security interest in or otherwise transfer or encumber (except for
Permitted Liens) any of the Collateral.
(d)Debtor shall pay promptly when due all taxes, license fees,
assessments and public and private charges levied or assessed on any of the
Collateral, on its use, or on this Agreement or any of the other Debt
Documents. At its option, Secured Party may discharge taxes, liens, security
interests or other encumbrances at any time levied or placed on the
Collateral and may pay for the maintenance, insurance and preservation of the
Collateral and effect compliance with the terms of this Agreement or any of
the other Debt Documents. Debtor agrees to reimburse Secured Party, on
demand, all costs and expenses incurred by Secured Party in connection with
such payment or performance and agrees that such reimbursement obligation
shall constitute Indebtedness.
(e)Debtor shall, at all times, keep accurate and complete records of
the Collateral, and Secured Party shall have the right to inspect and make
copies of all of Debtor's books and records relating to the Collateral during
normal business hours, after giving Debtor reasonable prior notice.
(f)Debtor agrees and acknowledges that any third person who may at any
time possess all or any portion of the Collateral shall be deemed to hold,
and shall hold, the Collateral as the agent of, and as pledge holder for,
Secured Party. Secured Party may at any time give notice to any third person
described in the preceding sentence that such third person is holding the
Collateral as the agent of, and as pledge holder for, the Secured Party.
4. INSURANCE.
(a)Debtor shall at all times bear the entire risk of any loss, theft,
damage to, or destruction of, any of the Collateral from any cause
whatsoever.
(b)Debtor agrees to keep the Collateral insured against loss or damage
by fire and extended coverage perils, theft, burglary, and for any or all
Collateral which are vehicles, for risk of loss by collision, and if
requested by Secured Party, against such other risks as Secured Party may
reasonably require. The insurance coverage shall be in an amount no less than
the full replacement value of the Collateral, and deductible amounts,
insurers and policies shall be acceptable to Secured Party. Debtor shall
deliver to Secured Party policies or certificates of insurance evidencing
such coverage. Each policy shall name Secured Party as a loss payee, shall
provide for coverage to Secured Party regardless of the breach by Debtor of
any warranty or representation made therein, shall not be subject to
co-insurance, and shall provide that coverage may not be canceled or altered
by the insurer except upon thirty (30) days prior written notice to Secured
Party. Debtor appoints Secured Party as its attorney-in-fact to make proof of
loss, claim for insurance and adjustments with insurers, and to receive
payment of and execute or endorse all documents, checks or drafts in
connection with insurance payments. Secured Party shall not act as Debtor's
attorney-in-fact unless Debtor is in default. Proceeds of insurance shall be
applied, at the option of Secured Party, to repair or replace the Collateral
or to reduce any of the Indebtedness.
5. REPORTS.
(a)Debtor shall promptly notify Secured Party of (i) any change in the
name of Debtor, (ii) any change in the state of its incorporation or
registration, (iii) any relocation of its chief executive offices, (iv) any
relocation of any of the Collateral, (v) any of the Collateral being lost,
stolen, missing, destroyed, materially damaged or worn out, or (vi) any lien,
claim or encumbrance other than Permitted Liens attaching to or being made
against any of the Collateral.
(b)Debtor will deliver to Secured Party Debtor's complete financial
statements, certified by a recognized firm of certified public accountants,
within ninety (90) days of the close of each fiscal year of Debtor. If
Secured Party requests, Debtor will deliver to Secured Party copies of
Debtor's quarterly financial reports certified by Debtor's chief financial
officer, within ninety (90) days after the close of each of Debtor's fiscal
quarter. Debtor will deliver to Secured Party copies of all Forms 10-K and
10-Q, if any, within 30 days after the dates on which they are filed with the
Securities and Exchange Commission.
6. FURTHER ASSURANCES.
(a)Debtor shall, upon request of Secured Party, furnish to Secured
Party such further information, execute and deliver to Secured Party such
documents and instruments (including, without limitation, Uniform Commercial
Code financing statements) and shall do such other acts and things as Secured
Party may at any time reasonably request relating to the perfection or
protection of the security interest created by this Agreement or for the
purpose of carrying out the intent of this Agreement. Without limiting the
foregoing, Debtor shall cooperate and do all acts deemed necessary or
advisable by Secured Party to continue in Secured Party a perfected first
security interest in the Collateral, and shall obtain and furnish to Secured
Party any subordinations, releases, landlord waivers, lessor waivers,
mortgagee waivers, or control agreements, and similar documents as may be
from time to time requested by, and in form and substance satisfactory to,
Secured Party.
(b)Debtor authorizes Secured Party to file a financing statement and
amendments thereto describing the Collateral and containing any other
information required by the applicable Uniform Commercial Code. Debtor
irrevocably grants to Secured Party the power to sign Debtor's name and
generally to act on behalf of Debtor to execute and file applications for
title, transfers of title, financing statements, notices of lien and other
documents pertaining to any or all of the Collateral; this power is coupled
with Secured Party's interest in the Collateral. Debtor shall, if any
certificate of title be required or permitted by law for any of the
Collateral, obtain and promptly deliver to Secured Party such certificate
showing the lien of this Agreement with respect to the Collateral. Debtor
ratifies its prior authorization for Secured Party to file financing
statements and amendments thereto describing the Collateral and containing
any other information required by the Uniform Commercial Code if filed prior
to the date hereof.
(c)Debtor shall indemnify and defend the Secured Party, its successors
and assigns, and their respective directors, officers and employees, from and
against all claims, actions and suits (including, without limitation, related
attorneys' fees) of any kind whatsoever arising, directly or indirectly, in
connection with any of the Collateral.
7. DEFAULT AND REMEDIES.
(a)Debtor shall be in default under this Agreement and each of the
other Debt Documents if:
(i) Debtor breaches its obligation to pay when due any installment
or other amount due or coming due under any of the Debt Documents;
(ii)Debtor, without the prior written consent of Secured Party,
attempts to or does sell, rent, lease, license, mortgage, grant a security
interest in, or otherwise transfer or encumber (except for Permitted Liens)
any of the Collateral;
(iii) Debtor breaches any of its insurance obligations under Section
4;
(iv)Debtor breaches any of its other obligations under any of the
Debt Documents and fails to cure that breach within thirty (30) days after
written notice from Secured Party;
(v) Any warranty, representation or statement made by Debtor in any
of the Debt Documents or otherwise in connection with any of the Indebtedness
shall be false or misleading in any material respect;
(vi)Any of the Collateral is subjected to attachment, execution,
levy, seizure or confiscation in any legal proceeding or otherwise, or if any
legal or administrative proceeding is commenced against Debtor or any of the
Collateral, which in the good faith judgment of Secured Party subjects any of
the Collateral to a material risk of attachment, execution, levy, seizure or
confiscation and no bond is posted or protective order obtained to negate
such risk;
(vii) Debtor breaches or is in default under any other agreement
between Debtor and Secured Party;
(viii) Debtor or any guarantor or other obligor for any of the
Indebtedness (collectively "GUARANTOR") dissolves, terminates its existence,
becomes insolvent or ceases to do business as a going concern;
(ix)If Debtor or any Guarantor is a natural person, Debtor or any
such Guarantor dies or becomes incompetent;
(x) A receiver is appointed for all or of any part of the property
of Debtor or any Guarantor, or Debtor or any Guarantor makes any assignment
for the benefit of creditors;
(xi)Debtor or any Guarantor files a petition under any bankruptcy,
insolvency or similar law, or any such petition is filed against Debtor or
any Guarantor and is not dismissed within forty-five (45) days;
(xii) Debtor's improper filing of an amendment or termination
statement relating to a filed financing statement describing the Collateral;
or
(b)If Debtor is in default, the Secured Party, at its option, may
declare any or all of the Indebtedness to be immediately due and payable,
without demand or notice to Debtor or any Guarantor. The accelerated
obligations and liabilities shall bear interest (both before and after any
judgment) until paid in full at the lower of eighteen percent (18%) per annum
or the maximum rate not prohibited by applicable law.
(c)After default, Secured Party shall have all of the rights and
remedies of a Secured Party under the Uniform Commercial Code, and under any
other applicable law. Without limiting the foregoing, Secured Party shall
have the right to (i) notify any account debtor of Debtor or any obligor on
any instrument which constitutes part of the Collateral to make payment to
the Secured Party, (ii) with or without legal process, enter any premises
where the Collateral may be and take possession of and remove the Collateral
from the premises or store it on the premises, (iii) sell the Collateral at
public or private sale, in whole or in part, and have the right to bid and
purchase at said sale, or (iv) lease or otherwise dispose of all or part of
the Collateral, applying proceeds from such disposition to the obligations
then in default. If requested by Secured Party, Debtor shall promptly
assemble the Collateral and make it available to Secured Party at a place to
be designated by Secured Party which is reasonably convenient to both
parties. Secured Party may also render any or all of the Collateral unusable
at the Debtor's premises and may dispose of such Collateral on such premises
without liability for rent or costs. Any notice that Secured Party is
required to give to Debtor under the Uniform Commercial Code of the time and
place of any public sale or the time after which any private sale or other
intended disposition of the Collateral is to be made shall be deemed to
constitute reasonable notice if such notice is given to the last known
address of Debtor at least five (5) days prior to such action.
(d)Proceeds from any sale or lease or other disposition shall be
applied: first, to all costs of repossession, storage, and disposition
including without limitation attorneys', appraisers', and auctioneers' fees;
second, to discharge the obligations then in default; third, to discharge any
other Indebtedness of Debtor to Secured Party, whether as obligor, endorser,
guarantor, surety or indemnitor; fourth, to expenses incurred in paying or
settling liens and claims against the Collateral; and lastly, to Debtor, if
there exists any surplus. Debtor shall remain fully liable for any
deficiency.
(e)Debtor agrees to pay all reasonable attorneys' fees and other costs
incurred by Secured Party in connection with the enforcement, assertion,
defense or preservation of Secured Party's rights and remedies under this
Agreement, or if prohibited by law, such lesser sum as may be permitted.
Debtor further agrees that such fees and costs shall constitute Indebtedness.
(f)Secured Party's rights and remedies under this Agreement or
otherwise arising are cumulative and may be exercised singularly or
concurrently. Neither the failure nor any delay on the part of the Secured
Party to exercise any right, power or privilege under this Agreement shall
operate as a waiver, nor shall any single or partial exercise of any right,
power or privilege preclude any other or further exercise of that or any
other right, power or privilege. SECURED PARTY SHALL NOT BE DEEMED TO HAVE
WAIVED ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR UNDER ANY OTHER AGREEMENT,
INSTRUMENT OR PAPER SIGNED BY DEBTOR UNLESS SUCH WAIVER IS EXPRESSED IN
WRITING AND SIGNED BY SECURED PARTY. A waiver on any one occasion shall not
be construed as a bar to or waiver of any right or remedy on any future
occasion.
(g)DEBTOR AND SECURED PARTY UNCONDITIONALLY WAIVE THEIR RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED
HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY RELATING TO THE SUBJECT
MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE
RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL
DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE. THIS
WAIVER MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. THE WAIVER ALSO SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
8. MISCELLANEOUS.
(a)This Agreement, any Note and/or any of the other Debt Documents may
be assigned, in whole or in part, by Secured Party without notice to Debtor,
and Debtor agrees not to assert against any such assignee, or assignee's
assigns, any defense, set-off, recoupment claim or counterclaim which Debtor
has or may at any time have against Secured Party for any reason whatsoever.
Debtor agrees that if Debtor receives written notice of an assignment from
Secured Party, Debtor will pay all amounts payable under any assigned Debt
Documents to such assignee or as instructed by Secured Party. Debtor also
agrees to confirm in writing receipt of the notice of assignment as may be
reasonably requested by Secured Party or assignee.
(b)All notices to be given in connection with this Agreement shall be
in writing, shall be addressed to the parties at their respective addresses
set forth in this Agreement (unless and until a different address may be
specified in a written notice to the other party), and shall be deemed given
(i) on the date of receipt if delivered in hand or by facsimile transmission,
(ii) on the next business day after being sent by express mail, and (iii) on
the fourth business day after being sent by regular, registered or certified
mail. As used herein, the term "business day" shall mean and include any day
other than Saturdays, Sundays, or other days on which commercial banks in New
York, New York are required or authorized to be closed.
(c)Secured Party may correct patent errors and fill in all blanks in
this Agreement or in any Collateral Schedule consistent with the agreement of
the parties.
(d)Time is of the essence of this Agreement. This Agreement shall be
binding, jointly and severally, upon all parties described as the "Debtor"
and their respective heirs, executors, representatives, successors and
assigns, and shall inure to the benefit of Secured Party, its successors and
assigns.
(e)This Agreement and its Collateral Schedules constitute the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersede all prior understandings (whether written, verbal or
implied) with respect to such subject matter. THIS AGREEMENT AND ITS
COLLATERAL SCHEDULES SHALL NOT BE CHANGED OR TERMINATED ORALLY OR BY COURSE
OF CONDUCT, BUT ONLY BY A WRITING SIGNED BY BOTH PARTIES. Section headings
contained in this Agreement have been included for convenience only, and
shall not affect the construction or interpretation of this Agreement.
(f)This Agreement shall continue in full force and effect until all of
the Indebtedness has been indefeasibly paid in full to Secured Party or its
assignee. The surrender, upon payment or otherwise, of any Note or any of the
other documents evidencing any of the Indebtedness shall not affect the right
of Secured Party to retain the Collateral for such other Indebtedness as may
then exist or as it may be reasonably contemplated will exist in the future.
This Agreement shall automatically be reinstated if Secured Party is ever
required to return or restore the payment of all or any portion of the
Indebtedness (all as though such payment had never been made).
(g)THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF CONNECTICUT (WITHOUT REGARD TO THE
CONFLICT OF LAWS PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, REGARDLESS OF THE LOCATION OF THE
EQUIPMENT.
IN WITNESS WHEREOF, Debtor and Secured Party, intending to be legally
bound hereby, have duly executed this Agreement in one or more counterparts,
each of which shall be deemed to be an original, as of the day and year first
aforesaid.
SECURED PARTY: DEBTOR:
GENERAL ELECTRIC CAPITAL CORPORATION ALLIANCE MEDICAL CORPORATION
By: /s/ Thomas Annino By: /s/ Tim Einwechter
Name: Thomas Annino Name: Tim Einwechter
Title: Title: CFO
AMENDMENT
THIS AMENDMENT is made as of the 4th day of October, 2001, between
General Electric Capital Corporation ("Secured Party") and Alliance Medical
Corporation ("Debtor") in connection with that certain Master Security
Agreement, dated or dated as of October 4, 2001 ("Agreement"). The terms at this
Amendment are hereby incorporated into the Agreement as though fully set forth
therein. Section references below refer to the section numbers of the Agreement.
The Agreement is hereby amended as follows:
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR.
Subsection (f) is hereby amended and replaced with the following:
As of the date of this Agreement, except as previously
disclosed to the Secured Party, there are no suits or
proceedings pending in court or before any commission, board
or other administrative agency against or affecting Debtor
which could, in the aggregate, have a material adverse effect
on Debtor, its business or operations, or its ability to
perform its obligations under the Debt Documents, nor does
Debtor have reason to believe that any such suits or
proceedings are threatened;
6. FURTHER ASSURANCES.
Subsection (c) is hereby amended and replaced with the following:
Debtor shall indemnify and defend the Secured Party, its
successors and assigns, and their respective directors,
officers and employees, from and against all claims, actions
and suits (including, without limitation, related attorneys'
fees) of any kind whatsoever arising, directly or indirectly,
in connection with any of the Collateral, excluding all
claims, actions and suits of any kind whatsoever arising from
the Secured Party's, its successors and assigns, and their
respective directors, officers and employees, willful
misconduct and gross negligence.
7. DEFAULT AND REMEDIES.
Subsection (ix) is intentionally omitted.
TERMS USED, BUT NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANINGS
GIVEN TO THEM IN THE AGREEMENT. EXCEPT AS EXPRESSLY AMENDED HEREBY, THE
AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT. IF THERE IS ANY CONFLICT
BETWEEN THE PROVISIONS OF THE AGREEMENT AND THIS AMENDMENT, THEN THIS AMENDMENT
SHALL CONTROL.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
simultaneously with the Agreement by signature of their respective authorized
representative set forth below.
GENERAL ELECTRIC CAPITAL CORPORATION ALLIANCE MEDICAL CORPORATION
By: /s/ Thomas Annino By:/s/ Tim Einwechter
-------------------------------------- -------------------------------
Name: Thomas Annino Name: Tim Einwechter
------------------------------------ -----------------------------
Title: Title: CFO
------------------------------------ ------------------------------
EXHIBIT 10.12(b)
PROMISSORY NOTE
--------------------
(DATE)
FOR VALUE RECEIVED, Alliance Medical Corporation, a Delaware corporation located
at the address stated below ("MAKER") promises, jointly and severally if more
than one, to pay to the order of GENERAL ELECTRIC CAPITAL CORPORATION or any
subsequent holder hereof (each, a "PAYEE") at its office located at 401 MERRITT
7 2ND FLOOR, NORWALK, CT 06856 or at such other place as Payee or the holder
hereof may designate, the principal sum of ____________________ DOLLARS
($____________________), with interest on the unpaid principal balance, from the
date hereof through and including the dates of payment, at a fixed interest rate
of ____________________ percent (____________________%) per annum, to be paid in
lawful money of the United States, in ____________________
(____________________) consecutive _______________ installments of principal and
interest as follows:
Periodic
Installment Amount
each ("Periodic Installment") and a final installment which shall be in the
amount of the total outstanding principal and interest. The first Periodic
Installment shall be due and payable on ____________________ and the following
Periodic Installments and the final installment shall be due and payable on the
same day of each succeeding _______________ (each, a "Payment Date"). Such
installments have been calculated on the basis of a 360 day year of twelve
30-day months. Each payment may, at the option of the Payee, be calculated and
applied on an assumption that such payment would be made on its due date.
The acceptance by Payee of any payment which is less than payment in full of all
amounts due and owing at such time shall not constitute a waiver of Payee's
right to receive payment in full at such time or at any prior or subsequent
time.
The Maker hereby expressly authorizes the Payee to insert the date value is
actually given in the blank space on the face hereof and on all related
documents pertaining hereto.
This Note may be secured by a security agreement, chattel mortgage, pledge
agreement or like instrument (each of which is hereinafter called a "SECURITY
AGREEMENT").
Time is of the essence hereof. If any installment or any other sum due under
this Note or any Security Agreement is not received within ten (10) days after
its due date, the Maker agrees to pay, in addition to the amount of each such
installment or other sum, a late payment charge of five percent (5%) of the
amount of said applicable late payment, but not exceeding any lawful maximum. If
(i) Maker fails to make payment of any amount due hereunder within ten (10) days
after the same becomes due and payable; or (ii) Maker is in default under, or
fails to perform under any term or condition contained in any Security
Agreement, then the entire principal sum remaining unpaid, together with all
accrued interest thereon and any other sum payable under this Note or any
Security Agreement, at the election of Payee, shall immediately become due and
payable, with interest thereon at the lesser of eighteen percent (18%) per annum
or the highest rate not prohibited by applicable law from the date of such
accelerated maturity until paid (both before and after any judgment).
The Maker may prepay in full, but not in part, its entire indebtedness hereunder
upon payment of the entire indebtedness plus an additional sum as a premium of
the original principal balance.
It is the intention of the parties hereto to comply with the applicable usury
laws; accordingly, it is agreed that, notwithstanding any provision to the
contrary in this Note or any Security Agreement, in no event shall this Note or
any Security Agreement require the payment or permit the collection of interest
in excess of
the maximum amount permitted by applicable law. If any such excess
interest is contracted for, charged or received under this Note or any Security
Agreement, or if all of the principal balance shall be prepaid, so that under
any of such circumstances the amount of interest contracted for, charged or
received under this Note or any Security Agreement on the principal balance
shall exceed the maximum amount of interest permitted by applicable law, then in
such event (a) the provisions of this paragraph shall govern and control, (b)
neither Maker nor any other person or entity now or hereafter liable for the
payment hereof shall be obligated to pay the amount of such interest to the
extent that it is in excess of the maximum amount of interest permitted by
applicable law, (c) any such excess which may have been collected shall be
either applied as a credit against the then unpaid principal balance or refunded
to Maker, at the option of the Payee, and (d) the effective rate of interest
shall be automatically reduced to the maximum lawful contract rate allowed under
applicable law as now or hereafter construed by the courts having jurisdiction
thereof. It is further agreed that without limitation of the foregoing, all
calculations of the rate of interest contracted for, charged or received under
this Note or any Security Agreement which are made for the purpose of
determining whether such rate exceeds the maximum lawful contract rate, shall be
made, to the extent permitted by applicable law, by amortizing, prorating,
allocating and spreading in equal parts during the period of the full stated
term of the indebtedness evidenced hereby, all interest at any time contracted
for, charged or received from Maker or otherwise by Payee in connection with
such indebtedness; provided, however, that if any applicable state law is
amended or the law of the United States of America preempts any applicable state
law, so that it becomes lawful for the Payee to receive a greater interest per
annum rate than is presently allowed, the Maker agrees that, on the effective
date of such amendment or preemption, as the case may be, the lawful maximum
hereunder shall be increased to the maximum interest per annum rate allowed by
the amended state law or the law of the United States of America.
The Maker and all sureties, endorsers, guarantors or any others (each such
person, other than the Maker, an "OBLIGOR") who may at any time become liable
for the payment hereof jointly and severally consent hereby to any and all
extensions of time, renewals, waivers or modifications of, and all substitutions
or releases of, security or of any party primarily or secondarily liable on this
Note or any Security Agreement or any term and provision of either, which may be
made, granted or consented to by Payee, and agree that suit may be brought and
maintained against any one or more of them, at the election of Payee without
joinder of any other as a party thereto, and that Payee shall not be required
first to foreclose, proceed against, or exhaust any security hereof in order to
enforce payment of this Note. The Maker and each Obligor hereby waives
presentment, demand for payment, notice of nonpayment, protest, notice of
protest, notice of dishonor, and all other notices in connection herewith, as
well as filing of suit (if permitted by law) and diligence in collecting this
Note or enforcing any of the security hereof, and agrees to pay (if permitted by
law) all expenses incurred in collection, including Payee's actual attorneys'
fees. Maker and each Obligor agrees that fees not in excess of twenty percent
(20%) of the amount then due shall be deemed reasonable.
THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS
NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE
RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS,
AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR
TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED
TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
This Note and any Security Agreement constitute the entire agreement of the
Maker and Payee with respect to the subject matter hereof and supercedes all
prior understandings, agreements and representations, express or implied.
No variation or modification of this Note, or any waiver of any of its
provisions or conditions, shall be valid unless in writing and signed by an
authorized representative of Maker and Payee. Any such waiver, consent,
modification or change shall be effective only in the specific instance and for
the specific purpose given.
Any provision in this Note or any Security Agreement which is in conflict with
any statute, law or applicable rule shall be deemed omitted, modified or altered
to conform thereto.
DRAFT COPY
_____________________________ By: ___________________________________
(Witness)
_____________________________ Name:
(Print name)
_____________________________ Title:
(Address)
Federal Tax ID #:_______________________
Address: 10232 South 51st Street,
Phoenix, Arizona 85044