Exhibit 4.14
EXECUTION COPY
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ASSIGNMENT AGREEMENT
THIS AGREEMENT made this 18th day of January, 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Original Credit Facilities have been replaced and superceded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;
(ii) landlord letter of credit in the maximum amount of
$498,000.00; and
(iii) business mastercard facility in the maximum amount of
$100,000.00;
(c) Advances to the Company by the Bank under the Credit
Facilities shall vary from time to time but shall not exceed
$10,000,000. 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";
(d) 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;
(e) 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 $10,000,000.00; and
(f) 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 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.
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 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 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 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 Company pursuant to the Commitment Letter, the
priority agreement between the Bank, 1144938 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"; or (iii) 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
The Exchange Tower
130 King Street West, P.O. Box 81
Toronto ON M5X 1B1
Attention: Niall Hamilton
Facsimile: (416) 367-1312
In respect of Analogic:
Analogic Corporation
8 Centennial Drive
Peabody, MA
01960
Attention: John J. Millerick
Facsimile: (978) 977-6845
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/ NIALL HAMILTON
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Niall Hamilton
Senior Manager, Special Loans
ANALOGIC CORPORATION
Per: /s/ JOHN J. MILLERICK
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Name: JOHN J. MILLERICK
Title: SENIOR VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
I have the authority to bind the
Corporation
_____________________________
The undersigned acknowledges receipt of a copy of this Assignment Agreement
and agrees to be bound by the terms hereof and to make all payments due in
respect 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/ FRASER SINCLAIR
--------------------------------
Fraser Sinclair
Chief Financial Officer &
Corporate Secretary
I have the authority to bind the
Corporation
SCHEDULE A
COMMITMENT LETTER
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. Unlimited Guarantee from Cedara Software USA Corp. dated January 31,
2001.
9. Unlimited Guarantee from Surgical Navigation Specialists ("SNS")
dated January 31, 2001.
10. General Security Agreement from SNS dated February 15, 2001.
11. Acknowledgement of Debt Revolving Demand Credit Agreement dated
January 7, 2002.
12. 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.
13. 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
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