UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): January 13, 1997
(December 9, 1996)
THERAGENICS CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware
(State of Incorporation)
0-15443 58-1528626
(Commission File Number) (I.R.S. Employer Identification No.)
5325 Oakbrook Parkway, Norcross, Georgia 30093
(Address of Principal Executive Offices) (Zip Code)
(404) 381-8338
(Registrant's Telephone Number, Including Area Code)
<PAGE>
Item 2. Acquisition or Disposition of Assets
Theragenics Agrees to Purchase of Four Additional Cyclotrons
Theragenics Corporation ("Theragenics" or the "Company") entered into four
agreements ("Agreements") dated December 27, 1996, each for the purchase of one
cyclotron from Ion Beam Applications s.a., the manufacturer of Theragenics'
current four cyclotrons ("Manufacturer"). The Agreements, which are attached
hereto as Exhibits 10.23 (a), (b), (c) and (d), call for the Manufacturer to
install and turn over to Theragenics one cyclotron in the late first quarter of
1998, a second cyclotron in the late second quarter of 1998, a third cyclotron
in the late third quarter of 1998 and a fourth cyclotron in the late fourth
quarter of 1998. All four agreements are payable to the Manufacturer in Begian
Francs.
The purchase of these four cyclotrons will be part of a larger expansion
project which will combine at one location the Company's cyclotron and assembly
facilities that are now in separate cities. Also included in this expansion
project will be administrative offices for the Company's executives and
management staff. The cost of this expansion including the cost of the four
cyclotrons and the facilities to house them and the assembly and administrative
facilities is currently expected to total approximately $20,000,000, based upon
today's exchange rate of U.S. dollars to the Manufacturer's country's currency.
Theragenics currently plans to finance this expansion project from a
combination of current cash balances, cash flow from future operations, bank
credit facilities and additional funds from future debt financings, stock
offerings or other forms of financing for this project.
Item 5. Other Events
Theragenics Secures $11 Million Credit Facility
Theragenics Corporation ("Theragenics") in an agreement with NationsBank
dated December 9, 1996, secured a Revolving Credit Facility (the "Facility")
totaling $11,000,000, which is attached hereto as Exhibit 10.24. Under the
Facility, $11,000,000 became immediately available to Theragenics upon signing.
Provisions of the Facility limit the amount of annual capital expenditures, the
incurrence of additional debt and requires, among other things, the maintenance
of certain minimum financial ratios. The Facility replaces a previous Line of
Credit Facility and Revolving Credit Facility totaling $5,000,000 and the
approximate $1,000,000 balance of a $2,100,000 term loan with NationsBank which
has been in place since September 1994. Management plans to use proceeds from
the Facility to help finance the Company's growth and partially fund expansion
involving the addition of a fifth, sixth, seventh and eighth cyclotron and new
manufacturing and administrative facilitiesas described in Item 2 above.
<PAGE>
Item 7. Exhibits
Exhibit Number Description
10.23(a) Purchase Agreement dated December 27, 1996 between
Theragenics Corporation and Ion Beam Applications s.a.
10.23(b) Purchase Agreement dated December 27, 1996 between
Theragenics Corporation and Ion Beam Applications s.a.
10.23(c) Purchase Agreement dated December 27, 1996 between
Theragenics Corporation and Ion Beam Applications s.a.
10.23(d) Purchase Agreement dated December 27, 1996 between
Theragenics Corporation and Ion Beam Applications s.a.
10.24 Second Amended and Restated Loan and Security
Agreement by and between Theragenics Corporation and
NationsBank, N.A. (South), Dated as of December 9, 1996
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized. THERAGENICS CORPORATION
/s/ Bruce W. Smith
Bruce W. Smith
Secretary, Treasurer and
Chief Financial Officer
Dated: January 10, 1996
EXHIBIT 10.23(a)
Purchase Agreement
between
Theragenics Corporation
and
Ion Beam Applications s.a.
dated
December 27, 1996
Confidential portions of this document have been blanked out and have been
filed separately with the Securities and Exchange Commission.
<PAGE>
Purchase Agreement
between
Theragenics Corporation Inc.
and
Ion Beam Applications S.A.
for
_____________Cyclotron Number 5
and
Related Target Equipment
<PAGE>
Table of Contents
Purchase Agreement
1. Interpretation............................................................3
2. Subject Matter of Sale....................................................4
3. Purchase Price of the Supplies............................................5
4. Title and Risk of Loss....................................................7
5. Delivery..................................................................7
6. Installation of Supplies..................................................7
7. Preparatory Work..........................................................9
8. Acceptance...............................................................11
9. Transportation and Insurance.............................................13
10. Export Documents, Duties and Foreign Taxes...............................14
11. Customs Duties, Buyer's Country Taxes and Import Permits.................14
12. Warranty As To Title.....................................................14
13. Design and Performance Warranty..........................................15
14. Material and Workmanship Warranty........................................15
15. Logging of Operations....................................................16
16. Training.................................................................16
17. Disclaimer of Liability for Personal Injury..............................16
18. Liability for Consequential Damages......................................17
19. Infringement of Proprietary Rights.......................................17
20. Seller's and Buyer's Proprietary Information.............................19
21. Destruction of Supplies..................................................20
22. Excusable Delay..........................................................20
23. Termination for Insolvency...............................................21
24. Spare Parts..............................................................21
25. Technical Assistance by the Seller.......................................21
26. Entire Agreement.........................................................22
27. Authorization............................................................22
28. Effective Date...........................................................22
29. Disputes.................................................................23
30. Governing Laws...........................................................23
31. Notices..................................................................23
32. Project Coordinator......................................................24
33. Assignment...............................................................25
34. Headings.................................................................25
35. Severability.............................................................25
36. Non-Waiver...............................................................25
Appendices
Cyclotron Parameters
- -------------------
Building Requirements
Building Completion Specifications
Included Spare Parts
Acceptance Criteria
Acceptance Tests
Accelerated Delivery and Acceptance Option
<PAGE>
Purchase Agreement
AGREEMENT made as of this 27th day of December 1996 by and between ION BEAM
APPLICATIONS, S.A., a corporation organized under the laws of Belgium, having
its principal office at Chemin du Cyclotron 3, 1348 Louvain-la-Neuve, Belgium
(hereinafter called the "Seller", which expression includes its successors and
permitted assignees) and THERAGENICS CORPORATION, having its principal office at
5325 Oakbrook Parkway, Norcross, Georgia 30093, USA (hereinafter called the
"Buyer", which expression includes its successors and permitted assignees).
WITNESSETH :
WHEREAS, the Seller wishes to sell to the Buyer and the Buyer wishes to buy from
the Seller, the Seller's model ___________ cyclotron, related
____________ equipment and spare parts therefore, all as more particularly
described herein : and
WHEREAS, the Buyer wishes the Seller to assemble, install, start up, test and
make operational the ________________ cyclotron to be purchased including
related equipment and the Seller is willing to undertake this task : and
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows :
1. Interpretation
In this Agreement, unless the contrary intention appears :
"Acceptance" means the process whereby the Seller demonstrates to the Buyer that
the Supplies provided meet the requirements of the Agreement. This process shall
consist of a series of tests, the "Acceptance Tests" as defined in Appendix
"Acceptance Tests", which demonstrate the Supplies meet the guaranteed
specifications, the Acceptance Criteria.
<PAGE>
"Acceptance Criteria" mean the guaranteed specifications of the Supplies as
defined in Appendix "Acceptance Criteria".
"Acceptance Date" means the date on which the Buyer agrees that based on the
Acceptance Tests, the Supplies have met the Acceptance Criteria . The Supplies
shall be deemed accepted when the Buyer and Seller agree in writing that the
Acceptance Tests have been successfully completed.
"Acceptance Tests" are the tests listed in Appendix "Acceptance Tests".
"Agreement" means this document and includes its Appendices.
"Buyer's Country" means the country where the Site is located.
"Day" means calendar day; "Week" means calendar week; "Month" means calendar
month.
When the last day of any period prescribed for the execution of any assignment
falls on a day which is not a working day in Belgium or in the Buyer's Country,
the assignment may be performed on the first working day following the
aforementioned day.
"Effective Date" has the meaning set forth in Section entitled "Effective Date".
"Excusable Delay" has the meaning set forth in Section entitled "Excusable
Delay".
"Site" means the Buyer's facility in Buford, Georgia, USA.
"Supplies" means all equipment, hardware, software (including installation) and
the associated documentation, support equipment and services to be provided
under the Agreement, as detailed in Appendix "Cyclotron Parameters" and Appendix
"___________________________".
<PAGE>
2. Subject Matter of Sale
Subject to the terms and conditions of this Agreement :
a) The Seller shall sell and deliver to the Buyer and the Buyer shall purchase
from the Seller (i) a ______________________ cyclotron, the technical
specifications of which are more fully described in the Appendix "Cyclotron
Parameters" Appendix hereto; ii) _______________________________, the technical
specifications of which are more fully described in the Appendix
"__________________________ " hereto; and (iii) a set of spare parts listed in
the Appendix "Included Spare Parts" hereto;
b) The Seller shall also assemble, install, start up, test, make operational and
perform the Acceptance Tests on the Supplies.
c) The Seller shall send one of his specialists to assist in bringing the
cyclotron to full operational capacity after Acceptance of the Supplies by the
Buyer, as described in Section 25.
d) The Buyer and Seller agree that an option for accelerated delivery and
acceptance as described in Appendix "Accelerated Delivery and Acceptance Option"
may be exercised by the Buyer. In case that option is exercised by the Buyer,
the covenants of the "Accelerated Delivery and Acceptance Option" Appendix shall
be applicable to both parties.
3. Purchase Price of the Supplies
a) The aggregate purchase price (hereinafter the "Price") of the Supplies,
including packaging, insurance and transportation of the Supplies to the Site,
the assembly, testing and start up of the Supplies described in the Section
entitled "Subject Matter of Sale" above, shall be
_______________________________________________________________. This price
shall also include the technical assistance by the Seller as described in
Section 25, the Spare Parts as listed in Appendix "Included Spare Parts" and the
Seller's contribution to the applicable USA customs duty as stated in Section 11
of this Agreement.
b) As a down payment equivalent to _____________ has been made by the Buyer to
the Seller on November 6, 1996, the balance of the Price set forth in subsection
a) shall be payable as follows:
<PAGE>
i) _____________________________________________________________________ to
be paid to the Seller upon execution of this Agreement;
ii) ___________________________________________________________ to be paid
to the Seller on March 1, 1997. This payment shall be guaranteed by an
irrevocable standby letter of credit to be issued in favor of and approved by
the Seller within one month from the Effective Date.
iii) ____________________________________________________________ to be
paid to the Seller on July 1, 1997. This payment shall be guaranteed by an
irrevocable standby letter of credit to be issued in favor of and approved by
the Seller by March 1, 1997.
iv) ___________________________________________________________ to be paid
to the Seller within 15 days from shipment of the Supplies as evidenced by
receipt of the shipping documents and no later than December 1, 1997 if the
shipment is delayed by Buyer's fault. This payment shall be guaranteed by an
irrevocable standby Letter of Credit to be issued in favor of and approved by
the Seller by the date of shipping of the Supplies, to be notified by Seller to
the Buyer at least 30 days in advance.
v) _________________________________________________________ to be paid to
the Seller within 15 days of the Acceptance of the Supplies. This payment shall
be guaranteed by an irrevocable stand-by Letter of Credit, which can only be
exercised during the year following the delivery of the Supplies, and
conditioned only upon successful completion of the Acceptance Tests and
providing further that, in the event the Seller is prevented by the Buyer's
fault, by a delay on the part of the Buyer, or by a regulatory body with
jurisdiction over the Buyer from completing the Acceptance Tests for a period of
sixty (60) days or more, payment thereunder to the Seller shall be made upon
demand of the Seller. This Letter of Credit shall be issued in favor of and
approved by the Seller, such approval not to be unreasonably withheld, by the
date of shipping of the Supplies, to be notified by Seller to Buyer at least
thirty days in advance.
c) All payments by the Buyer to the Seller under this Agreement shall be in
Belgian Francs and, except those specified in paragraph 3. b) above, shall be
made by wire transfer within thirty (30) days from the date of invoice.
<PAGE>
d) All payments by the Buyer to the Seller will be deemed to have been made by
the Buyer on the date on which the Seller has been credited for the proper
amounts. Any payment due to the Seller which is not paid on the due date shall
accrue interest for each started month of delay at an annual rate of one point
above the rate of the "Avance en Compte Courant Hors Plafond de la Banque
Nationale de Belgique" as published in "l'Echo" on the first day of such month.
4. Title and Risk of Loss
Except as indicated below in this paragraph, title to the Supplies shall be
transferred from the Seller to the Buyer when and to the extent payments are
received by the Seller. The Buyer represents and warrants that it shall not
cause or permit to be caused any lien or encumbrance of any kind to be placed
upon the Supplies to an extent greater than its share of ownership in the
Supplies. It is understood that if the Seller is unable to demonstrate the
Supplies meet the Acceptance Criteria within one year of delivery of the
Supplies to the Buyer's Site, clear title to the Supplies transfers to the Buyer
without obligation to pay to the Seller the final payment specified in Section
3.b.v unless the Seller has been prevented from conducting the Acceptance Tests
as described in Section 8, last paragraph.
Risk of loss of any part of the Supplies shall pass from the Seller to the Buyer
upon delivery of such parts to the Site.
5. Delivery
The Seller shall deliver the Supplies to the Buyer at the Site and set the
Supplies in their final location.
6. Installation of Supplies
a) The assembly and installation of the Supplies at the Site and the Acceptance
Tests are planned to be completed by ________________________________ after
completion of Site preparation by the Buyer at the Seller's reasonable
satisfaction as evidenced by an acceptance document of the Site ("Site
Acceptance Document") signed by the Seller, whichever is later. The Seller
undertakes to make its best efforts to complete the installation and testing
<PAGE>
within this period. During the installation period the Buyer shall permit the
Seller's employees, subcontractors or agents unlimited access to the Site
provided said individuals comply with policies and procedures established for
the Buyer's employees regarding such matters as health and safety issues.
b) With reasonable notice to the Seller, the Buyer and its authorized
representatives shall, during reasonable working hours, be free to inspect the
quality and conditions of the Supplies at the Seller's site during fabrication
and at any time upon arrival of the same at the Site and during the installation
period. The Seller will notify in writing to the Buyer when the major materials
are available for construction of the cyclotron. c) The Buyer at its sole
expense shall provide the Seller with closed premises on or reasonably near the
Site in which the Seller may store employee clothing and tools and equipment
required for the installation. However, the Buyer does not assume any risk with
respect to the loss or theft of any such items while on the Buyer's premises.
d) The Buyer shall, at its sole expense, provide the Seller with the following
utilities required for installation of the Supplies and Acceptance Tests on the
Supplies: electricity, water, compressed air, dry nitrogen for venting the
vacuum chamber, hydrogen gas for the ion source, as described in Appendix
"Building Requirements". Access to telephone and fax equipment connected to the
international network is required and the Seller will pay the charges associated
with the use of this line. The Buyer shall provide all the necessary radiation
measuring equipment required for the operation and the Acceptance Tests on the
Supplies.
e) Within fifteen (15) days from the date of delivery of the cyclotron at the
Site, the Buyer shall permit the Seller to produce beams at full energy and full
intensity in the cyclotron vault.
f) The Price reflects labor provided by the Seller. Any additional labor or
costs required by local labor codes, etc. will be the responsibility of the
Buyer.
g) The Supplies are manufactured according to Belgian technical standards. If
the Buyer requires compliance of the Supplies with specific technical standards,
these technical standards must be notified by the Buyer to the Seller within
seven weeks of the Effective Date. All additional costs related to
<PAGE>
making the Supplies conform to those norms or specific standards shall be
charged to the Buyer.
7. Preparatory Work
a) The Buyer shall have the sole responsibility, at its sole expense, for the
work required to prepare the Site for installation of the Supplies. The building
to house the Supplies and the systems contained therein shall comply with the
specifications detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications". As soon as possible after completion, and,
at the latest, on _________________, the Seller shall prepare for the Buyer a
proposed layout and prepare such other plans and memoranda as are necessary to
transmit data to the Buyer's architects and engineers. By _____________, the
Buyer shall furnish to the Seller drawings and plans for the Site including the
building and systems detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications" in sufficient detail to enable the Seller
to judge whether the Site will be satisfactory for the Supplies and will meet
the specifications detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications". Within four (4) weeks of the receipt of
this initial set of architectural and engineering drawings and plans, the Seller
shall provide the Buyer with comments thereon and detailed information as to
such modifications therein as the Seller deems necessary including such drawings
and technical documents as may be required by the Buyer to complete the
installation of the cables, cooling water and compressed air systems. However,
the time devoted to preparation by personnel of Seller of additional layouts or
drawings and/or reviews of revised sets of architectural and engineering
drawings will be invoiced at Seller's regular rates. No additional charge will
be made for telephone consultations. Travel and related expenses incurred as a
result of attendance by personnel of the Seller required at meeting outside of
Belgium with the Buyer's architects, engineers, consultants and/or
representatives will be reimbursed by the Buyer. With respect to the foregoing,
the responsibility for determining whether conflict exists between local
building codes and/or other laws or government regulations and the content of
drawings, data sheets, memoranda or other forms of communication submitted by
the Seller is solely the responsibility of the Buyer, his architects, engineers
and/or consultants. The definitive drawings and plans for the Site, made in
accordance with the Seller's comments and recommendations, will then be
furnished by the Buyer to the Seller by ___________. In addition, unless
otherwise specified, the Buyer shall have the sole responsibility for the design
and construction of the radiation monitoring systems, of the shielding
<PAGE>
required to prevent radiation leakage and of the systems required to handle the
disposal of radioactive waste.
Any delay on the part of the Seller in meeting its obligations related to this
Section by more than ten (10) days will add a number of days to the period
provided for the performance by the Buyer equal to the number of days of delay
by the Seller.
b) Before commencing installation, the Seller shall inspect the Site and the
Buyer shall submit to the Seller the Site Acceptance Document to be signed by
the Seller confirming that the preparatory work meets all the criteria set forth
in the Section entitled "Installation of Supplies", paragraph c) and d) and in
Appendix "Building Requirements" and Appendix "Building Completion
Specifications". This acceptance document only indicates the Seller's
willingness to begin the installation of the Supplies in the Buyer's building.
It does not discharge the Buyer and his subcontractors of any of their
responsibilities regarding the building. The Buyer shall complete the
preparatory work at the Site by _______________. If the preparatory work as
regards the cyclotron vault is substantially completed before that date, the
Buyer shall accept delivery and/or installation of the Supplies as soon as
possible under the applicable laws and regulations. In the event that such work
has not been completed before that date, or if for any other reason the Buyer is
unable to accept delivery of the Supplies or commencement of the installation
thereof by that date, the Buyer shall immediately give the Seller written notice
of this fact and the anticipated new date for completion of the preparatory
work. In any case, the Seller may ship the Supplies to the Buyer at any time and
the Buyer shall store them in one of its warehouses until the date the
preparatory work is completed.
c) One week before commencing installation and setting of the cyclotron in its
vault, the Buyer shall allow the Seller full access to the cyclotron vault,
power supplies and control room and all other rooms related to the installation
of the Supplies to allow for the measurement of line-up marks to be performed.
d) The Buyer's completion, to the reasonable satisfaction of the Seller, of its
undertakings in this section and elsewhere in this Agreement relating to
preparation of the Site and the continuous furnishing of necessary services and
permits set forth in the Section entitled "Installation of Supplies", paragraph
c), d) and e) and in Section entitled "Custom Duties, Buyer's Country Taxes and
Import Permits" and the requirements detailed in Appendix "Building
<PAGE>
Requirements" and Appendix "Building Completion Specifications" shall be a
condition precedent to the Seller's commitment to perform within the time period
specified under the Section entitled "Installation of Supplies" hereof, and any
delay or interruption by the Buyer in meeting its obligations under this
Agreement in a timely fashion shall extend the Seller's time to perform under
this Agreement including but not limited to Seller's time to exercise and
perform under the option for accelerated delivery and acceptance outlined in
Appendix "Accelerated Delivery and Acceptance Option", by a period equal to the
period of the Buyer's delay or interruption plus, if shipment and/or delivery is
delayed by Buyer's fault or at Buyer's request, an additional period not to
exceed four weeks to reschedule shipment and/or delivery of the Supplies and/or
personnel as may be required.
In the event of any such delay or interruption, the Buyer will reimburse the
Seller for any reasonable costs incurred as a direct result of such delay or
interruption. Additionally, if such postponement or interruption delays the
Buyer's obligation to make any of the payments set forth in Section entitled
"Purchase Price of the Supplies", paragraph b) hereof, interest will be computed
for each started month of delay at an annual rate one point above the rate of
the "Avance en Compte Courant Hors Plafond de la Banque Nationale de Belgique"
as published in "l'Echo" on the first day of such month.
If all the conditions necessary for the Seller to sign the Site Acceptance
Document referred to in the above Section have not been met at the time of
delivery of the Supplies, the Seller will nonetheless make its best efforts to
start the installation of the Supplies as soon as reasonably possible and the
Buyer will give the Seller any reasonable support to allow the Seller to do so.
However, beginning of installation of the Supplies in the building, under such
conditions, will under no circumstances be considered as implicit acceptance of
the Site by the Seller.
8. Acceptance
On the date set by the Seller for the conduct of the Acceptance Tests, and in
the presence of the Buyer's representatives, the Seller shall begin to conduct
the agreed-upon Acceptance Tests.
Not more than twenty four (24) hours following the completion of such tests, the
Buyer shall either accept the Supplies as conforming to the requirements of the
<PAGE>
Agreement by issuing an acceptance certificate "Acceptance Certificate"
acknowledging that decision, or advise the Seller in writing of the extent to
which the Supplies do not meet the requirements of the Agreement.
The Buyer shall not withhold the issue of the Acceptance Certificate on account
of minor omissions or defects in the Supplies which do not substantially affect
their use but may designate in the Acceptance Certificate such minors omissions
or defects. The Seller shall promptly make good these omissions or defects.
If the Buyer does not give notice within the period stipulated above, or begins
using the Supplies for its own use, such tests shall be deemed satisfactorily
completed, the Acceptance Certificate shall be deemed issued on that date and
the related acceptance payment shall be paid to the Seller within 15 days from
that date.
If the Buyer gives the Seller notice that such tests have not been
satisfactorily completed, the Seller shall make such adjustments as are
necessary and repeat the Acceptance Tests until the Buyer deems them
satisfactory pursuant to the terms set out above.
Until ___________, the Seller shall have unimpeded access to the Supplies to
complete the Acceptance Tests. If the Seller is unable to successfully complete
the Acceptance Tests by _____________, the Buyer shall be free to begin use of
the Supplies forty five (45) days later. Should the Supplies be put into use
under this condition, it is understood the Buyer and Seller will make a good
faith effort to facilitate the completion of the Acceptance Tests, but it is
further understood that the Buyer's production of Pd-103 with the machine takes
precedence. The Buyer agrees to allow the Seller three (3) prescheduled days of
unimpeded access to the Supplies per month during the period between ___________
until the period for acceptance has expired as specified in Section 4 "Title and
Risk of Loss".
If a dispute arises between the Buyer and the Seller concerning whether the
Acceptance Tests have been successfully completed or concerning the issuance of
the Acceptance Certificate, the Buyer and the Seller will jointly agree to
obtain the services of the American Arbitration Association ("AAA") to arbitrate
the dispute, as described in Section 29 hereafter. Both parties will abide by
AAA's recommendations.
<PAGE>
If the Seller is prevented either by the Buyer or by any regulatory body that
has juridiction over the Buyer from conducting the Acceptance Tests for a period
of sixty (60) days, the Buyer shall be deemed to have accepted the Supplies
sixty (60) days after the Seller was first prevented from conducting the
Acceptance Tests. If the Seller is prevented by force majeure or events similar
to those enumerated under Section "Excusable Delay" from conducting the
Acceptance Tests, the Buyer shall pay 50% of the Acceptance payment as defined
in Section 3 b) v). In either case the Seller shall complete the Acceptance
Tests within the period remaining at the time the impediment began.
9. Transportation and Insurance
Seller shall at its own expense :
i) Obtain appropriate property and liability insurance covering loss or damage
to the Supplies and injuries to individuals during the construction of the
Supplies and during the transportation of the Supplies from the Seller's plant
to the Site.
ii) Pay all freight and other transportation charges associated with delivery of
the Supplies to the Site, and have a representative present during the transfer
of the Supplies from the port of entry to the Site.
iii) Maintain worker's compensation insurance during the assembly, installation
and testing of the Supplies, as required by applicable law, covering its
employees and, upon request from Buyer, provide a certificate of insurance
evidencing such coverage.
Buyer shall at its own expense:
i) Obtain appropriate property and liability insurance covering loss or damage
to the Supplies between delivery of the Supplies at the Site and the time when
the Seller has been paid in full for the amounts under Section entitled
"Purchase Price of the Supplies". In such insurance policies, both the Buyer and
the Seller shall be named as insured parties.
ii) Arrange for the destruction, pick-up and/or clearing away of all waste,
including the Supplies packaging except for the disposal of radioactive waste
which is covered in section 12 of appendix "Building Completion Specifications".
<PAGE>
The Buyer and the Seller shall each take out and maintain at their own expense
during the period from receipt of the Supplies at the Site through Acceptance,
insurance to provide coverage for both itself and the other party for an amount
of at least one million US dollars (US$ 1,000,000) per accident against any
direct and indirect liability for bodily injury and death to individuals and all
direct or indirect costs, losses and damages to the property of the other
arising out of each other's acts or omissions in unloading, assembling,
installing and testing of the Supplies.
10. Export Documents, Duties and Foreign Taxes
The Seller will be responsible for obtaining all necessary export permits or
licences relating to the Supplies and the Buyer will offer such reasonable
assistance in this regard as the Seller may request. The Seller shall pay any
and all export duties and all other taxes required to be paid outside of the
Buyer's Country in connection with the sale of the Supplies.
11. Customs Duties, Buyer's Country Taxes and Import Permits
The Buyer shall pay all sales, use, gross receipts, excise and other taxes
assessed or levied by the Buyer's Country or any other taxing jurisdiction,
state or local, within the Buyer's Country, against the Buyer (including any
fines, penalties and interests thereof) as a result of or in connection with the
sale, use, delivery, storage or transfer of the Supplies.
The Seller agrees to equally share with the Buyer the cost of the import customs
duties levied by the customs authorities of the USA at the entry of the Supplies
into the USA, up to a maximum cost for the Seller equal to two percent (2%) of
the price of the Supplies.
The Buyer shall be responsible for obtaining all necessary permits or licences
with respect to the importation of the Supplies in the Buyer's Country and the
installation and use of the Supplies at the Site, and the Seller will offer the
Buyer such reasonable assistance in this regard as the Buyer may request.
12. Warranty As To Title
The Seller warrants good title to the Supplies.
<PAGE>
13. Design and Performance Warranty
The Seller hereby warrants that the Supplies will perform in accordance with
applicable design and performance specifications set forth in Appendix
"Cyclotron Parameters" and in Appendix "__________________________" for a period
of one (1) year after the Acceptance Date. The Seller shall resolve any design
flaws appearing during the first year following the Acceptance of the Supplies.
14. Material and Workmanship Warranty
The Seller hereby warrants that the Supplies will be free from defects in
material and workmanship for a period of one (1) year from the date of
acceptance of the Supplies by the Buyer or fifteen (15) months from the date the
Supplies are put in their final location in the Buyer's vault if the Acceptance
Date is delayed at the Buyer's request or through the Buyer's fault, whichever
period is shorter: provided, however, that this warranty shall not apply to ion
source stamped cathodes and chimneys, puller electrodes, air filters, targets,
oil for the vacuum pumps, demineralizing column, gas bottles (H2 for the ion
source, N2 for venting,...), and other consumables; that the Seller makes no
warranty with respect to failures notified after the warranty period or failures
during operation without logging or failures due to alteration, misapplications,
abuse, abnormal conditions of temperature, dirt, corrosive matter, maintenance
not carried out according to the Seller's instructions, lack of trained
personnel for maintenance, operation above rated capacities either intentional
or otherwise, or in an otherwise improper manner or physical damage caused by
persons other than employees or agents of the Seller; that the Seller's sole
liability under valid warranty regarding claims for defects in material and
workmanship is limited, at the option of the Seller, to repair or replacement of
the defective parts; that with respect to components purchased by the Seller for
incorporation into the Supplies essentially without modification, the Seller
makes no warranties of its own but assigns to the Buyer the full warranty
extended to the Seller as part of the original purchase of the component.
If, due to a fault of the Seller, the Supplies have not passed the Acceptance
Tests by _____________, the Seller's warranty shall start and be in effect until
_________________.
<PAGE>
The Seller shall bear the cost and risk of loss during transport of (i) any
defective part or components being returned to the Seller's factory with the
Seller's agreement and (ii) any repaired or replacement item being returned to
the Buyer. Products or parts returned without the agreement of the Seller shall
be at the Buyer's sole risk and expense. The Seller shall bear any personnel
costs incurred in connection with the fulfillment of the Seller's obligations
under this warranty.
The foregoing warranties are exclusive and are given and accepted in lieu of all
other warranties of quality written or oral, express or implied, and all other
warranties are hereby disclaimed.
15. Logging of Operations
The Buyer shall keep a logbook of operation for the Supplies. In this logbook
shall be documented all sessions of operation of the Supplies as well as any
problems encountered during operation of the Supplies. If the Buyer requests
assistance from the Seller in resolving a problem with the Supplies and the
information in the log is relevant to this resolution, the Buyer may at its sole
discretion make the log available to the Seller . If the Buyer presents a claim
against the warranty provided by the Seller, a copy of the log must be made
available to the Seller. It is understood by the Seller that the information
contained in the Log may be of a proprietary nature and is therefore covered by
the confidentiality agreement between the parties.
16. Training
The Seller agrees to provide up to two days of training in _________ operation,
preventative maintenance and repair to the Buyers' personnel at the Site during
or immediately after the installation period, with the exact dates and times to
be mutually agreed by the Buyer and Seller. The cost of such training shall be
the responsibility of the Seller.
17. Disclaimer of Liability for Personal Injury
The Seller and the Buyer hereby acknowledge that the products, as offered, are
highly sophisticated devices which should be operated only by trained personnel;
that it is the Buyer's sole obligation to retain and train such personnel or
<PAGE>
have it trained, possibly by the Seller; that, where necessary, the Supplies
contain interlocking devices designed to prevent their operation in a manner
which would cause injury to such personnel, but as in the case with all
equipment utilizing high voltages, such personnel should assume that the
interlocking devices are inoperative and should take appropriate measures to
ensure that the voltage has been turned off prior to begin working where high
voltage is present during the start up and/or operation of the Supplies; that it
is inherent in the operation of the Supplies that portions thereof may emit
dangerous ionizing radiation and may become activated during their normal
operation; that it is the Buyer's sole obligation to determine the level of
radioactivity, to ensure that a system exists for determining and recording the
levels of radioactivity and to ensure that no personnel or other persons are
exposed to radiation in excess of that permitted by relevant law or regulations.
Based upon the foregoing acknowledgments, it is, therefore, agreed that the
Seller shall not incur any liability for personal injury to any party arising
out of the operations and maintenance of the Supplies unless such liability is
solely caused by a gross negligence on the part of the Seller in the design,
implementation or documentation including but not limited to maintenance and
operation manuals for the Supplies. In order to give effect to these limitations
of the Seller's liability, and as an express condition of sale, the Buyer hereby
agrees to indemnify and hold the Seller harmless from any and all claims, but
limited by the exclusion of negligent acts or omissions as outlined in the
preceding sentence, damages and liability, including reasonable attorney's fees,
arising out of a claim against the Seller for personal injuries of any party
occasioned by the operation and/or maintenance of such Supplies.
18. Liability for Consequential Damages
The Seller's liability to the Buyer for damages howsoever caused shall under no
circumstances whatsoever (including the decision of an arbitration panel or
court of law) exceed the payments actually received by the Seller for the
Supplies and the Seller shall under no circumstances have any liability for
special, incidental, indirect or consequential damages, including without
limitation liability for loss of use, loss of profits, damage or injury to other
property or persons.
<PAGE>
19. Infringement of Proprietary Rights
a) The Seller shall indemnify and hold harmless the Buyer against any and all
losses, liabilities and expenses, by reason of any third party claim, suit,
action or proceeding for alleged infringement of any copyright, trademark or
patent of the Buyer's Country or alleged conversion of any trade secret
resulting from or arising in connection with the manufacture, installation, use
or sale of the Supplies or any part thereof including any and all judgments or
decrees which may be rendered against the Buyer (and reasonable attorney's fees
if Seller should fail to defend as provided in subsection b) hereof, and
settlements made arising out of any such claim, suit, action or proceeding
provided, however that this indemnity shall not extend to any infringement
resulting from a breach by the Buyer of this Agreement or of the Seller's
instructions for the operation of the Supplies. The Seller shall however not be
liable for any infringement or claim based upon the use of the Supplies or any
portion of the documentation in combination with other equipment or technology
not supplied by the Seller or resulting from any modification made by the Buyer,
without approval or instruction by Seller.
b) The Seller shall defend at its own expense all suits, actions or proceedings
brought against the Buyer with respect to the matters listed in subsection a)
above. The Buyer shall have the right at its option and at its sole expense, to
participate in the defense of any such claim, suit, action or proceeding,
without relieving the Seller of any obligation hereunder. The Buyer shall
promptly notify the Seller in writing after any such claim is made or suit is
brought and shall cooperate with Seller in the defense thereof as requested by
the Seller, and the Seller agrees to reimburse the Buyer for its reasonable
out-of-pocket expenses incurred at Seller's specific request in connection with
such cooperation. The Buyer shall immediately notify the Seller of any
infringement claim made or threatened and shall refrain from any admission of
liability, and will not negotiate or enter into any settlement without the
Seller's prior consent.
c) If, however, as a consequence of a final determination of any suit for
infringement or any court decision involving any injunction resulting from or
arising in connection with the manufacture or sale of the Supplies or any part
thereof furnished or employed by the Seller hereunder, the Buyer is enjoined or
limited in any material manner in the use of said Supplies or part, Seller
shall, at its option and at its own expense either i) procure for the Buyer the
right to continue use of said Supplies or part, ii) so modify the Supplies or
<PAGE>
part so as to render them non-infringing without any significant effect to use
thereof, or iii) replace the Supplies or part with an equivalent non-infringing
product.
20. Seller's and Buyer's Proprietary Information
Upon completion of the Acceptance Tests, the Seller shall furnish to the Buyer
free of charge information, manuals and drawings in English and with metric
units of measure relating to the Supplies and instructions to the Buyer in
sufficient detail to enable the Buyer and its employees to operate, calibrate,
maintain and repair the Supplies and all parts thereof. A definitive version of
the documentation, including the modifications that are specific to the Buyer's
configuration and that are made during the final stages of installation, will be
provided six (6) months after the completion of the Acceptances Tests. Such
information, manuals, drawings and instructions and the written materials
furnished by the Seller to the Buyer under the Section entitled "Preparatory
Work" hereof shall remain the property of the Seller and the Buyer shall have a
royalty-free license to use the same in connection with the operation,
calibration, maintenance and repair of the Supplies. The Buyer shall not use any
of the proprietary information supplied by the Seller for any other purpose than
the operation, calibration, maintenance and repair of the Supplies and the Buyer
shall not register, apply for registration or attempt to acquire any other legal
protection for the said proprietary information in its own name, or any other
name, or take any action which may affect the Seller's rights, title and
interest in and to the technology in any country, without obtaining the prior
consent of the Seller. The Buyer shall treat such information and materials in
the same manner as it treats its own proprietary information and will use
similar means to protect it from unauthorized disclosure. The same Buyer
covenants and agrees that the contents of such written information or materials
shall not be divulged to any other person, firm or corporation, except as
allowed above.
The Seller agrees that all information transmitted from Buyer to Seller under
this contract including but not limited to, information relating to research,
development, manufacturing, testing, accounting and marketing will be considered
confidential information. This confidential information will be held in
confidence and not disclosed to third parties by the Seller. This confidential
information shall be held in confidence by the Seller using the same degree of
care as the Seller uses in protecting its own confidential information. The
Seller shall only use such confidential information for the purpose of meeting
its obligations under this Agreement.
<PAGE>
21. Destruction of Supplies
In the event that prior to the delivery of the Supplies, the Supplies are lost,
destroyed or damaged to such an extent that they cannot be repaired and
delivered in accordance with the delivery schedule set forth in the Section
entitled "Installation of Supplies", provided the event is not a willful act of
the Seller, the time reasonably required by the Seller to furnish a replacement
for the Supplies or to accomplish such repairs shall be deemed an Excusable
Delay under the Section entitled "Excusable Delay" and the Seller shall not be
deemed to be in default or to have breached its duties hereunder.
22. Excusable Delay
Notwithstanding anything to the contrary herein contained, if the performance of
this Agreement by any party or the obligation of any party hereunder is
prevented, restricted or interfered with by reason of : i) fire, explosion,
strike, lockout, labor dispute, casualty or accident, epidemic, cyclone,
drought, flood or ii) war, revolution, riot, civil commotion, acts of public
enemies, blockage or embargo, or iii) any law or proclamation, regulation,
ordinance, demand or requirement of any applicable government or any subdivision
thereof or representative of any such government, or iv) any other acts
whatsoever, whether similar or dissimilar to those enumerated, beyond the
reasonable control of a party hereto, then, and in that event, the party so
affected shall promptly notify the other party of all reasonable resulting
difficulties. Upon such notice, the disabled party shall, for the duration of
its disability (referred to as "Excusable Delay" in this Agreement), be excused
from the performance of such of its obligations as are prevented, restricted, or
interfered with by reason of the occurrence of any of the events above
enumerated and such party shall not be deemed to be in default under this
Agreement nor be subject to any liability or damage. The time period during
which any party is to perform under this Agreement shall be extended by the
period of any Excusable Delay. Excusable Delay under the same terms occurring in
respect to the Seller's sub-contractors shall be deemed to be Excusable Delay
occurring to the Seller.
If the Seller is prevented from proceeding according to any of the schedules set
out in this Agreement by the Buyer's fault, by a delay on the part of the Buyer,
<PAGE>
or by a regulatory body with jurisdiction over the Buyer's site, or if the Buyer
delays a payment or the issuance of a Letter of Credit pursuant to Section 3 by
more than fifteen (15) days past the due date, then all the dates contained in
this Agreement for completion by the Seller of its obligations and rights,
including but not limited to the right to exercise the accelerated delivery and
acceptance option, shall be postponed by an additional period equal to the
delay.
23. Termination for Insolvency
In the event that either the Buyer or the Seller :
a) makes a general assignment for the benefit of creditors or becomes insolvent;
b) files an insolvency petition in bankruptcy;
c) petitions for or acquiesces in the appointment of any receiver, trustee or
similar officer to liquidate or conserve its business or any substantial part of
its assets ;
d) commences, under the laws of any jurisdiction, any proceeding involving its
insolvency, bankruptcy, reorganization, adjustment of debt, dissolution,
liquidation or any other similar proceeding for the release of financially
distressed debtors ; or
e) becomes a party to any proceeding or action of the type described above in c)
or d) and such proceeding or action remains undismissed or unstayed for a period
of more than sixty (60) days,
then the other party may, by written notice, terminate this Agreement.
24. Spare Parts
The Seller agrees to make available to the Buyer, as the Buyer may from time to
time require, ________________, spare parts and components to the Supplies, and
the Seller agrees to exert reasonable efforts to meet the Buyer's delivery
requirements for said parts and components or acceptable substitutes. It is
understood that the parties shall negotiate in good faith reasonable and
mutually agreeable prices for said spare parts and components.
<PAGE>
25. Technical Assistance by the Seller
Immediately following the successful completion of the Acceptance Tests the
Seller shall send one of its specialists to assist the Buyer in bringing the
cyclotron to full operational capacity. The specialist shall be the project
coordinator or, if he is not available, someone of equal or better technical
expertise, this other person to be approved by the Buyer, such approval not to
be unreasonably withheld. The Seller's specialist will remain at the site for a
period of 28 days unless the Buyer agrees that the services of the specialist
are no longer required. During this period, the Buyer's specialist will define
the tasks to be performed by the Seller's specialist with the objective of
verifying the cyclotron 1) is fully operational, 2) performs according to
specifications within the production environment and 3) its automated control
system performs according to specifications. This period of technical assistance
does not relieve the Seller of any of its warranty obligations, including the
requirement that the Seller send any personnel required to the Site to make
repairs should the Supplies be found to not meet specifications during this
period.
26. Entire Agreement
This Agreement, made in two originals, one for each party, contains the entire
agreement between the parties and shall supersede all previous communications
and agreements, whether oral or written, with respect to the subject matter
hereof and the provisions hereof may not be modified or superseded except by an
instrument in writing signed by a duly authorized officer or representative of
each of the parties hereto.
27. Authorization
By virtue of having affixed their respective signatures below, each of the
parties hereto warrants that it has obtained all authorization necessary to
enter into and perform its obligations under this Agreement.
28. Effective Date
This Agreement shall become effective as of the date upon which payment i), as
set forth in Section entitled "Purchase Price of the Supplies", is received by
the Seller.
<PAGE>
29. Disputes
With respect to any controversy arising out of or relating to this Agreement,
such controversy shall be settled by final and binding arbitration in New York,
NY, USA, in accordance with the then-existing rules (the "Rules") of the
American Arbitration Association ("AAA") and judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction thereof;
provided, however, that the law applicable to any controversy and the law by
which this Agreement shall be construed and governed shall be the law of the
State of New York, regardless of its or any jurisdiction's choice of law
principles. In any arbitration, pursuant to this Agreement, the award or
decision shall be rendered by a majority of the members of a Board of
Arbitration consisting of three (3) members, one of whom shall be appointed by
each party and the third of whom shall be the Chairman of the panel and be
appointed by mutual agreement of said two party-appointed arbitrators. In the
event of failure of said two arbitrators to agree upon the appointment of the
third arbitrator within sixty (60) days after the commencement of the
arbitration proceeding, the third arbitrator shall be appointed by the AAA in
accordance with the Rules. In the event that either party shall fail to appoint
an arbitrator within thirty (30) days after the commencement of the arbitration
proceeding, such arbitrator and the third arbitrator shall be appointed by the
AAA in accordance with the Rules. The Rules of Evidence and the Right to
Discovery shall be applicable to both parties.
Work under this Agreement shall continue during the arbitration proceedings and
payments due to the Seller shall not be withheld on account of such proceedings
unless such particular work or payment is the subject matter of the arbitration
in which case this provision shall not apply to such particular work or payment.
The parties agree to equally share the expenses associated with this arbitration
procedure.
30. Governing Laws
This Agreement shall be governed by and construed in all respects in accordance
with the laws of the State of New York, USA.
<PAGE>
31. Notices
a) Any notice given under this Agreement shall be made in writing, shall be
given by first class air mail, telex, telecopier or commercial cable and shall
be addressed to :
In the case of the Seller:
Ion Beam Applications
Chemin du Cyclotron, 3
1348 Louvain-la-Neuve
Belgium
Attn : Mr. Yves Jongen
Fax Number : 32-10-47.58.10
In the case of the Buyer :
Theragenics Corporation
5325, Oakbrook Parkway
Norcross, GA 30093
USA
Attn : Mr. Glenn Dill
Fax Number : 1 (404) 381 84 47
Either party, by written notice to the other, may change the address to which
notices will be directed.
b) Any notice shall be deemed given on the date personally delivered or sent by
telex, telecopier or cable and fifteen (15) days after the date of mailing, if
mailed.
32. Project Coordinator
Upon signing this Agreement, both parties shall designate a representative who
will act as Project Coordinator and official addressee for all communication
resulting from this Agreement, other than any official notice given under the
Section entitled "Notices". All requests for service, transmittals of
information, reports on training activity, and other communication required
under this agreement shall be sent by and directed to the respective Project
Coordinators. Informal conversations occurring person-to-person or by phone,
<PAGE>
requests and information shall be validated by an appropriate written form as
confirmation. Any communication sent to others than those designated as Project
Coordinators, or in a manner not in accordance with the Notices procedure
specified in this Agreement will be considered as informal and non-existent.
33. Assignment
This Agreement shall inure to the benefit of and be binding upon each of the
parties hereto and their respective successors and assignees, but neither the
rights nor the duties of either party hereunder may be assigned, in whole or in
part by either party, without the prior written consent of the other party. Such
consent shall not be unreasonably withheld by either party. Any assignment shall
not relieve the assignee of any of the Agreement obligations of the assignor.
34. Headings
The headings contained within this Agreement are established solely for the
convenience of the two parties and are not intended to and do not limit,
construe or modify any of the terms and conditions included hereof.
35. Severability
If any term or provision of this Agreement is held to be illegal or
unenforceable, then this Agreement, except for such part or parts thereof, shall
continue to be in full force and effect.
In the event of any inconsistency between a provision of the conditions of the
Agreement and the content of an Appendix to this Agreement, and if the parties
cannot agree on the clause to take precedence, the AAA of Section 29 will be
asked to mediate/arbitrate the dispute and the parties agree to abide by the
finding of said association.
36. Non-Waiver
The failure by either party to enforce at any time or for any period of time any
of the provisions hereof shall not be a waiver of such provisions nor of the
right of such party thereafter to enforce each and every such provision.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate by their duly qualified officers or representatives.
THERAGENICS CORPORATION Inc.
Not Required
Christine Jacobs
President
/s/ Bruce Smith /s/ Glenn Dill
Bruce Smith Glenn Dill
Chief Financial Officer Director of Operations
ION BEAM APPLICATIONS, S.A.
/s/ Yves Jongen /s/Sabine de Vohgel
Yves Jongen Sabine de Voghel
President Area Sales Manager
<PAGE>
APPENDIX
CYCLOTRON PARAMETERS
<PAGE>
APPENDIX
<PAGE>
APPENDIX
BUILDING REQUIREMENTS
<PAGE>
APPENDIX
BUILDING COMPLETION SPECIFICATIONS
<PAGE>
APPENDIX
INCLUDED SPARE PARTS
<PAGE>
APPENDIX
ACCEPTANCE CRITERIA
<PAGE>
APPENDIX
ACCEPTANCE TESTS
<PAGE>
APPENDIX
ACCELERATED DELIVERY AND ACCEPTANCE OPTION
The Buyer has the option to request to the Seller, at any time during this
Agreement, to work on an accelerated schedule basis in order to have the
Supplies accepted at an earlier date than the scheduled acceptance date of
_____________. Official request must be made in writing and addressed to Yves
Jongen, President of IBA.
In the case the Buyer exercises this option, the Buyer will pay the Seller an
additional sum of _____________ for each complete day between the actual date of
early acceptance and __________, including the day of ______________.
EXHIBIT 10.23(b)
Purchase Agreement
between
Theragenics Corporation
and
Ion Beam Applications s.a.
dated
December 27, 1996
Confidentialportions of this document have been blanked out and have been filed
separately with the Securities and Exchange Commission.
<PAGE>
Purchase Agreement
between
Theragenics Corporation Inc.
and
Ion Beam Applications S.A.
for
_______________ Cyclotron Number 6
and
Related Target Equipment
<PAGE>
Table of Contents
Purchase Agreement
1. Interpretation............................................................3
2. Subject Matter of Sale....................................................4
3. Purchase Price of the Supplies............................................5
4. Title and Risk of Loss....................................................7
5. Delivery..................................................................7
6. Installation of Supplies..................................................7
7. Preparatory Work..........................................................9
8. Acceptance...............................................................11
9. Transportation and Insurance.............................................13
10. Export Documents, Duties and Foreign Taxes...............................14
11. Customs Duties, Buyer's Country Taxes and Import Permits.................14
12. Warranty As To Title.....................................................14
13. Design and Performance Warranty..........................................15
14. Material and Workmanship Warranty........................................15
15. Logging of Operations....................................................16
16. Training.................................................................16
17. Disclaimer of Liability for Personal Injury..............................16
18. Liability for Consequential Damages......................................17
19. Infringement of Proprietary Rights......................................18
20. Seller's and Buyer's Proprietary Information.............................19
21. Destruction of Supplies..................................................20
22. Excusable Delay..........................................................20
23. Termination for Insolvency...............................................21
24. Spare Parts..............................................................21
25. Technical Assistance by the Seller.......................................21
26. Entire Agreement.........................................................22
27. Authorization............................................................22
28. Effective Date...........................................................22
29. Disputes.................................................................23
30. Governing Laws...........................................................23
31. Notices..................................................................23
32. Project Coordinator......................................................24
33. Assignment...............................................................25
34. Headings.................................................................25
35. Severability.............................................................25
36. Non-Waiver...............................................................25
Appendices
Cyclotron Parameters
- ---------------------------
Building Requirements
Building Completion Specifications
Included Spare Parts
Acceptance Criteria
Acceptance Tests
Accelerated Delivery and Acceptance Option
<PAGE>
Purchase Agreement
AGREEMENT made as of this 27th day of December 1996 by and between ION BEAM
APPLICATIONS, S.A., a corporation organized under the laws of Belgium, having
its principal office at Chemin du Cyclotron 3, 1348 Louvain-la-Neuve, Belgium
(hereinafter called the "Seller", which expression includes its successors and
permitted assignees) and THERAGENICS CORPORATION, having its principal office at
5325 Oakbrook Parkway, Norcross, Georgia 30093, USA (hereinafter called the
"Buyer", which expression includes its successors and permitted assignees).
WITNESSETH :
WHEREAS, the Seller wishes to sell to the Buyer and the Buyer wishes to buy from
the Seller, the Seller's model _________ cyclotron, related _________ equipment
and spare parts therefore, all as more particularly described herein : and
WHEREAS, the Buyer wishes the Seller to assemble, install, start up, test and
make operational the ______________ cyclotron to be purchased including related
equipment and the Seller is willing to undertake this task : and
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows :
1. Interpretation
In this Agreement, unless the contrary intention appears :
"Acceptance" means the process whereby the Seller demonstrates to the Buyer that
the Supplies provided meet the requirements of the Agreement. This process shall
consist of a series of tests, the "Acceptance Tests" as defined in Appendix
"Acceptance Tests", which demonstrate the Supplies meet the guaranteed
specifications, the Acceptance Criteria.
<PAGE>
"Acceptance Criteria" mean the guaranteed specifications of the Supplies as
defined in Appendix "Acceptance Criteria".
"Acceptance Date" means the date on which the Buyer agrees that based on the
Acceptance Tests, the Supplies have met the Acceptance Criteria . The Supplies
shall be deemed accepted when the Buyer and Seller agree in writing that the
Acceptance Tests have been successfully completed.
"Acceptance Tests" are the tests listed in Appendix "Acceptance Tests".
"Agreement" means this document and includes its Appendices.
"Buyer's Country" means the country where the Site is located.
"Day" means calendar day; "Week" means calendar week; "Month" means calendar
month.
When the last day of any period prescribed for the execution of any assignment
falls on a day which is not a working day in Belgium or in the Buyer's Country,
the assignment may be performed on the first working day following the
aforementioned day.
"Effective Date" has the meaning set forth in Section entitled "Effective Date".
"Excusable Delay" has the meaning set forth in Section entitled "Excusable
Delay".
"Site" means the Buyer's facility in Buford, Georgia, USA.
"Supplies" means all equipment, hardware, software (including installation) and
the associated documentation, support equipment and services to be provided
under the Agreement, as detailed in Appendix "Cyclotron Parameters" and Appendix
"_________________________".
<PAGE>
2. Subject Matter of Sale
Subject to the terms and conditions of this Agreement :
a) The Seller shall sell and deliver to the Buyer and the Buyer shall purchase
from the Seller (i) a __________ model cyclotron, the technical specifications
of which are more fully described in the Appendix "Cyclotron Parameters"
Appendix hereto; (ii) _________________________, the technical specifications of
which are more fully described in the Appendix "__________________________"
hereto; and (iii) a set of spare parts listed in the Appendix "Included Spare
Parts" hereto;
b) The Seller shall also assemble, install, start up, test, make operational and
perform the Acceptance Tests on the Supplies.
c) The Seller shall send one of his specialists to assist in bringing the
cyclotron to full operational capacity after Acceptance of the Supplies by the
Buyer, as described in Section 25.
d) The Buyer and Seller agree that an option for accelerated delivery and
acceptance as described in Appendix "Accelerated Delivery and Acceptance Option"
may be exercised by the Buyer. In case that option is exercised by the Buyer,
the covenants of the "Accelerated Delivery and Acceptance Option" Appendix shall
be applicable to both parties.
3. Purchase Price of the Supplies
a) The aggregate purchase price (hereinafter the "Price") of the Supplies,
including packaging, insurance and transportation of the Supplies to the Site,
the assembly, testing and start up of the Supplies described in the Section
entitled "Subject Matter of Sale" above, shall be ______________________
_______________________ This price shall also include the technical assistance
by the Seller as described in Section 25, the Spare Parts as listed in Appendix
"Included Spare Parts" and the Seller's contribution to the applicable USA
customs duty as stated in Section 11 of this Agreement.
b) As a down payment equivalent to ____________ has been made by the Buyer to
the Seller on November 6, 1996, the balance of the Price set forth in subsection
a) shall be payable as follows:
<PAGE>
i) ___________ ____________________________________________________ to be
paid to the Seller upon execution of this Agreement;
ii) ___________________________________________________________ to be paid
to the Seller on March 1, 1997. This payment shall be guaranteed by an
irrevocable standby letter of credit to be issued in favor of and approved by
the Seller within one month from the Effective Date.
iii)_____________________________________________________________ to be
paid to the Seller on ______________. This payment shall be guaranteed by an
irrevocable standby letter of credit to be issued in favor of and approved by
the Seller by March 1, 1997.
iv)_____________________________________________________ to be paid to the
Seller within 15 days from shipment of the Supplies as evidenced by receipt of
the shipping documents and no later than March 1, 1998 if the shipment is
delayed by Buyer's fault. This payment shall be guaranteed by an irrevocable
standby Letter of Credit to be issued in favor of and approved by the Seller by
the date of shipping of the Supplies, to be notified by Seller to the Buyer at
least 30 days in advance.
v)_________________________________________________________ to be paid to
the Seller within 15 days of the Acceptance of the Supplies. This payment shall
be guaranteed by an irrevocable stand-by Letter of Credit, which can only be
exercised during the year following the delivery of the Supplies, and
conditioned only upon successful completion of the Acceptance Tests and
providing further that, in the event the Seller is prevented by the Buyer's
fault, by a delay on the part of the Buyer, or by a regulatory body with
jurisdiction over the Buyer from completing the Acceptance Tests for a period of
sixty (60) days or more, payment thereunder to the Seller shall be made upon
demand of the Seller. This Letter of Credit shall be issued in favor of and
approved by the Seller, such approval not to be unreasonably withheld, by the
date of shipping of the Supplies, to be notified by Seller to Buyer at least
thirty days in advance.
c) All payments by the Buyer to the Seller under this Agreement shall be in
Belgian Francs and, except those specified in paragraph 3. b) above, shall be
made by wire transfer within thirty (30) days from the date of invoice.
<PAGE>
d) All payments by the Buyer to the Seller will be deemed to have been made by
the Buyer on the date on which the Seller has been credited for the proper
amounts. Any payment due to the Seller which is not paid on the due date shall
accrue interest for each started month of delay at an annual rate of one point
above the rate of the "Avance en Compte Courant Hors Plafond de la Banque
Nationale de Belgique" as published in "l'Echo" on the first day of such month.
4. Title and Risk of Loss
Except as indicated below in this paragraph, title to the Supplies shall be
transferred from the Seller to the Buyer when and to the extent payments are
received by the Seller. The Buyer represents and warrants that it shall not
cause or permit to be caused any lien or encumbrance of any kind to be placed
upon the Supplies to an extent greater than its share of ownership in the
Supplies. It is understood that if the Seller is unable to demonstrate the
Supplies meet the Acceptance Criteria within one year of delivery of the
Supplies to the Buyer's Site, clear title to the Supplies transfers to the Buyer
without obligation to pay to the Seller the final payment specified in Section
3.b.v unless the Seller has been prevented from conducting the Acceptance Tests
as described in Section 8, last paragraph.
Risk of loss of any part of the Supplies shall pass from the Seller to the Buyer
upon delivery of such parts to the Site.
5. Delivery
The Seller shall deliver the Supplies to the Buyer at the Site and set the
Supplies in their final location.
6. Installation of Supplies
a) The assembly and installation of the Supplies at the Site and the Acceptance
Tests are planned to be completed by _________________________________ after
completion of Site preparation by the Buyer at the Seller's reasonable
satisfaction as evidenced by an acceptance document of the Site ("Site
Acceptance Document") signed by the Seller, whichever is later. The Seller
undertakes to make its best efforts to complete the installation and testing
<PAGE>
within this period. During the installation period the Buyer shall permit the
Seller's employees, subcontractors or agents unlimited access to the Site
provided said individuals comply with policies and procedures established for
the Buyer's employees regarding such matters as health and safety issues.
b) With reasonable notice to the Seller, the Buyer and its authorized
representatives shall, during reasonable working hours, be free to inspect the
quality and conditions of the Supplies at the Seller's site during fabrication
and at any time upon arrival of the same at the Site and during the installation
period. The Seller will notify in writing to the Buyer when the major materials
are available for construction of the cyclotron.
c) The Buyer at its sole expense shall provide the Seller with closed premises
on or reasonably near the Site in which the Seller may store employee clothing
and tools and equipment required for the installation. However, the Buyer does
not assume any risk with respect to the loss or theft of any such items while on
the Buyer's premises.
d) The Buyer shall, at its sole expense, provide the Seller with the following
utilities required for installation of the Supplies and Acceptance Tests on the
Supplies: electricity, water, compressed air, dry nitrogen for venting the
vacuum chamber, hydrogen gas for the ion source, as described in Appendix
"Building Requirements". Access to telephone and fax equipment connected to the
international network is required and the Seller will pay the charges associated
with the use of this line. The Buyer shall provide all the necessary radiation
measuring equipment required for the operation and the Acceptance Tests on the
Supplies.
e) Within fifteen (15) days from the date of delivery of the cyclotron at the
Site, the Buyer shall permit the Seller to produce beams at full energy and full
intensity in the cyclotron vault.
f) The Price reflects labor provided by the Seller. Any additional labor or
costs required by local labor codes, etc. will be the responsibility of the
Buyer.
g) The Supplies are manufactured according to Belgian technical standards. If
the Buyer requires compliance of the Supplies with specific technical standards,
these technical standards must be notified by the Buyer to the Seller within
seven weeks of the Effective Date. All additional costs related to making the
<PAGE>
Supplies conform to those norms or specific standards shall be charged to the
Buyer.
7. Preparatory Work
a) The Buyer shall have the sole responsibility, at its sole expense, for the
work required to prepare the Site for installation of the Supplies. The building
to house the Supplies and the systems contained therein shall comply with the
specifications detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications". As soon as possible after completion, and,
at the latest, ________________ the Seller shall prepare for the Buyer a
proposed layout and prepare such other plans and memoranda as are necessary to
transmit data to the Buyer's architects and engineers. By _____________ the
Buyer shall furnish to the Seller drawings and plans for the Site including the
building and systems detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications" in sufficient detail to enable the Seller
to judge whether the Site will be satisfactory for the Supplies and will meet
the specifications detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications". Within four (4) weeks of the receipt of
this initial set of architectural and engineering drawings and plans, the Seller
shall provide the Buyer with comments thereon and detailed information as to
such modifications therein as the Seller deems necessary including such drawings
and technical documents as may be required by the Buyer to complete the
installation of the cables, cooling water and compressed air systems. However,
the time devoted to preparation by personnel of Seller of additional layouts or
drawings and/or reviews of revised sets of architectural and engineering
drawings will be invoiced at Seller's regular rates. No additional charge will
be made for telephone consultations. Travel and related expenses incurred as a
result of attendance by personnel of the Seller required at meeting outside of
Belgium with the Buyer's architects, engineers, consultants and/or
representatives will be reimbursed by the Buyer. With respect to the foregoing,
the responsibility for determining whether conflict exists between local
building codes and/or other laws or government regulations and the content of
drawings, data sheets, memoranda or other forms of communication submitted by
the Seller is solely the responsibility of the Buyer, his architects, engineers
and/or consultants. The definitive drawings and plans for the Site, made in
accordance with the Seller's comments and recommendations, will then be
furnished by the Buyer to the Seller by ________________. In addition, unless
otherwise specified, the Buyer shall have the sole responsibility for the design
and construction of the radiation monitoring systems, of the shielding required
<PAGE>
to prevent radiation leakage and of the systems required to handle the disposal
of radioactive waste.
Any delay on the part of the Seller in meeting its obligations related to this
Section by more than ten (10) days will add a number of days to the period
provided for the performance by the Buyer equal to the number of days of delay
by the Seller.
b) Before commencing installation, the Seller shall inspect the Site and the
Buyer shall submit to the Seller the Site Acceptance Document to be signed by
the Seller confirming that the preparatory work meets all the criteria set forth
in the Section entitled "Installation of Supplies", paragraph c) and d) and in
Appendix "Building Requirements" and Appendix "Building Completion
Specifications". This acceptance document only indicates the Seller's
willingness to begin the installation of the Supplies in the Buyer's building.
It does not discharge the Buyer and his subcontractors of any of their
responsibilities regarding the building. The Buyer shall complete the
preparatory work at the Site by ____________. If the preparatory work as regards
the cyclotron vault is substantially completed before that date, the Buyer shall
accept delivery and/or installation of the Supplies as soon as possible under
the applicable laws and regulations. In the event that such work has not been
completed before that date, or if for any other reason the Buyer is unable to
accept delivery of the Supplies or commencement of the installation thereof by
that date, the Buyer shall immediately give the Seller written notice of this
fact and the anticipated new date for completion of the preparatory work. In any
case, the Seller may ship the Supplies to the Buyer at any time and the Buyer
shall store them in one of its warehouses until the date the preparatory work is
completed.
c) One week before commencing installation and setting of the cyclotron in its
vault, the Buyer shall allow the Seller full access to the cyclotron vault,
power supplies and control room and all other rooms related to the installation
of the Supplies to allow for the measurement of line-up marks to be performed.
d) The Buyer's completion, to the reasonable satisfaction of the Seller, of its
undertakings in this section and elsewhere in this Agreement relating to
preparation of the Site and the continuous furnishing of necessary services and
permits set forth in the Section entitled "Installation of Supplies", paragraph
c), d) and e) and in Section entitled "Custom Duties, Buyer's Country Taxes and
Import Permits" and the requirements detailed in Appendix "Building
<PAGE>
Requirements" and Appendix "Building Completion Specifications" shall be a
condition precedent to the Seller's commitment to perform within the time period
specified under the Section entitled "Installation of Supplies" hereof, and any
delay or interruption by the Buyer in meeting its obligations under this
Agreement in a timely fashion shall extend the Seller's time to perform under
this Agreement including but not limited to Seller's time to exercise and
perform under the option for accelerated delivery and acceptance outlined in
Appendix "Accelerated Delivery and Acceptance Option", by a period equal to the
period of the Buyer's delay or interruption plus, if shipment and/or delivery is
delayed by Buyer's fault or at Buyer's request, an additional period not to
exceed four weeks to reschedule shipment and/or delivery of the Supplies and/or
personnel as may be required.
In the event of any such delay or interruption, the Buyer will reimburse the
Seller for any reasonable costs incurred as a direct result of such delay or
interruption. Additionally, if such postponement or interruption delays the
Buyer's obligation to make any of the payments set forth in Section entitled
"Purchase Price of the Supplies", paragraph b) hereof, interest will be computed
for each started month of delay at an annual rate one point above the rate of
the "Avance en Compte Courant Hors Plafond de la Banque Nationale de Belgique"
as published in "l'Echo" on the first day of such month.
If all the conditions necessary for the Seller to sign the Site Acceptance
Document referred to in the above Section have not been met at the time of
delivery of the Supplies, the Seller will nonetheless make its best efforts to
start the installation of the Supplies as soon as reasonably possible and the
Buyer will give the Seller any reasonable support to allow the Seller to do so.
However, beginning of installation of the Supplies in the building, under such
conditions, will under no circumstances be considered as implicit acceptance of
the Site by the Seller.
8. Acceptance
On the date set by the Seller for the conduct of the Acceptance Tests, and in
the presence of the Buyer's representatives, the Seller shall begin to conduct
the agreed-upon Acceptance Tests.
Not more than twenty four (24) hours following the completion of such tests, the
Buyer shall either accept the Supplies as conforming to the requirements of the
Agreement by issuing an acceptance certificate "Acceptance Certificate"
<PAGE>
cknowledging that decision, or advise the Seller in writing of the extent to
which the Supplies do not meet the requirements of the Agreement.
The Buyer shall not withhold the issue of the Acceptance Certificate on account
of minor omissions or defects in the Supplies which do not substantially affect
their use but may designate in the Acceptance Certificate such minors omissions
or defects. The Seller shall promptly make good these omissions or defects.
If the Buyer does not give notice within the period stipulated above, or begins
using the Supplies for its own use, such tests shall be deemed satisfactorily
completed, the Acceptance Certificate shall be deemed issued on that date and
the related acceptance payment shall be paid to the Seller within 15 days from
that date.
If the Buyer gives the Seller notice that such tests have not been
satisfactorily completed, the Seller shall make such adjustments as are
necessary and repeat the Acceptance Tests until the Buyer deems them
satisfactory pursuant to the terms set out above.
Until ______________ the Seller shall have unimpeded access to the Supplies to
complete the Acceptance Tests. If the Seller is unable to successfully complete
the Acceptance Tests by _____________, the Buyer shall be free to begin use of
the Supplies forty five (45) days later. Should the Supplies be put into use
under this condition, it is understood the Buyer and Seller will make a good
faith effort to facilitate the completion of the Acceptance Tests, but it is
further understood that the Buyer's production of Pd-103 with the machine takes
precedence. The Buyer agrees to allow the Seller three (3) prescheduled days of
unimpeded access to the Supplies per month during the period between,
_____________ until the period for acceptance has expired as specified in
Section 4 "Title and Risk of Loss".
If a dispute arises between the Buyer and the Seller concerning whether the
Acceptance Tests have been successfully completed or concerning the issuance of
the Acceptance Certificate, the Buyer and the Seller will jointly agree to
obtain the services of the American Arbitration Association ("AAA") to arbitrate
the dispute, as described in Section 29 hereafter. Both parties will abide by
AAA's recommendations.
<PAGE>
If the Seller is prevented either by the Buyer or by any regulatory body that
has juridiction over the Buyer from conducting the Acceptance Tests for a period
of sixty (60) days, the Buyer shall be deemed to have accepted the Supplies
sixty (60) days after the Seller was first prevented from conducting the
Acceptance Tests. If the Seller is prevented by force majeure or events similar
to those enumerated under Section "Excusable Delay" from conducting the
Acceptance Tests, the Buyer shall pay 50% of the Acceptance payment as defined
in Section 3 b) v). In either case the Seller shall complete the Acceptance
Tests within the period remaining at the time the impediment began.
9. Transportation and Insurance
Seller shall at its own expense :
i) Obtain appropriate property and liability insurance covering loss or damage
to the Supplies and injuries to individuals during the construction of the
Supplies and during the transportation of the Supplies from the Seller's plant
to the Site.
ii) Pay all freight and other transportation charges associated with delivery of
the Supplies to the Site, and have a representative present during the transfer
of the Supplies from the port of entry to the Site.
iii) Maintain worker's compensation insurance during the assembly, installation
and testing of the Supplies, as required by applicable law, covering its
employees and, upon request from Buyer, provide a certificate of insurance
evidencing such coverage.
Buyer shall at its own expense:
i) Obtain appropriate property and liability insurance covering loss or damage
to the Supplies between delivery of the Supplies at the Site and the time when
the Seller has been paid in full for the amounts under Section entitled
"Purchase Price of the Supplies". In such insurance policies, both the Buyer and
the Seller shall be named as insured parties.
ii) Arrange for the destruction, pick-up and/or clearing away of all waste,
including the Supplies packaging except for the disposal of radioactive waste
which is covered in section 12 of appendix "Building Completion Specifications".
<PAGE>
The Buyer and the Seller shall each take out and maintain at their own expense
during the period from receipt of the Supplies at the Site through Acceptance,
insurance to provide coverage for both itself and the other party for an amount
of at least one million US dollars (US$ 1,000,000) per accident against any
direct and indirect liability for bodily injury and death to individuals and all
direct or indirect costs, losses and damages to the property of the other
arising out of each other's acts or omissions in unloading, assembling,
installing and testing of the Supplies.
10. Export Documents, Duties and Foreign Taxes
The Seller will be responsible for obtaining all necessary export permits or
licences relating to the Supplies and the Buyer will offer such reasonable
assistance in this regard as the Seller may request. The Seller shall pay any
and all export duties and all other taxes required to be paid outside of the
Buyer's Country in connection with the sale of the Supplies.
11. Customs Duties, Buyer's Country Taxes and Import Permits
The Buyer shall pay all sales, use, gross receipts, excise and other taxes
assessed or levied by the Buyer's Country or any other taxing jurisdiction,
state or local, within the Buyer's Country, against the Buyer (including any
fines, penalties and interests thereof) as a result of or in connection with the
sale, use, delivery, storage or transfer of the Supplies.
The Seller agrees to equally share with the Buyer the cost of the import customs
duties levied by the customs authorities of the USA at the entry of the Supplies
into the USA, up to a maximum cost for the Seller equal to two percent (2%) of
the price of the Supplies.
The Buyer shall be responsible for obtaining all necessary permits or licences
with respect to the importation of the Supplies in the Buyer's Country and the
installation and use of the Supplies at the Site, and the Seller will offer the
Buyer such reasonable assistance in this regard as the Buyer may request.
12. Warranty As To Title
The Seller warrants good title to the Supplies.
<PAGE>
13. Design and Performance Warranty
The Seller hereby warrants that the Supplies will perform in accordance with
applicable design and performance specifications set forth in Appendix
"Cyclotron Parameters" and in Appendix ___________________________ for a period
of one (1) year after the Acceptance Date. The Seller shall resolve any design
flaws appearing during the first year following the Acceptance of the Supplies.
14. Material and Workmanship Warranty
The Seller hereby warrants that the Supplies will be free from defects in
material and workmanship for a period of one (1) year from the date of
acceptance of the Supplies by the Buyer or fifteen (15) months from the date the
Supplies are put in their final location in the Buyer's vault if the Acceptance
Date is delayed at the Buyer's request or through the Buyer's fault, whichever
period is shorter: provided, however, that this warranty shall not apply to ion
source stamped cathodes and chimneys, puller electrodes, air filters, targets,
oil for the vacuum pumps, demineralizing column, gas bottles (H2 for the ion
source, N2 for venting,...), and other consumables; that the Seller makes no
warranty with respect to failures notified after the warranty period or failures
during operation without logging or failures due to alteration, misapplications,
abuse, abnormal conditions of temperature, dirt, corrosive matter, maintenance
not carried out according to the Seller's instructions, lack of trained
personnel for maintenance, operation above rated capacities either intentional
or otherwise, or in an otherwise improper manner or physical damage caused by
persons other than employees or agents of the Seller; that the Seller's sole
liability under valid warranty regarding claims for defects in material and
workmanship is limited, at the option of the Seller, to repair or replacement of
the defective parts; that with respect to components purchased by the Seller for
incorporation into the Supplies essentially without modification, the Seller
makes no warranties of its own but assigns to the Buyer the full warranty
extended to the Seller as part of the original purchase of the component.
If, due to a fault of the Seller, the Supplies have not passed the Acceptance
Tests by _______________, the Seller's warranty shall start and be in effect
until ______________.
<PAGE>
The Seller shall bear the cost and risk of loss during transport of (i) any
defective part or components being returned to the Seller's factory with the
Seller's agreement and (ii) any repaired or replacement item being returned to
the Buyer. Products or parts returned without the agreement of the Seller shall
be at the Buyer's sole risk and expense. The Seller shall bear any personnel
costs incurred in connection with the fulfillment of the Seller's obligations
under this warranty.
The foregoing warranties are exclusive and are given and accepted in lieu of all
other warranties of quality written or oral, express or implied, and all other
warranties are hereby disclaimed.
15. Logging of Operations
The Buyer shall keep a logbook of operation for the Supplies. In this logbook
shall be documented all sessions of operation of the Supplies as well as any
problems encountered during operation of the Supplies. If the Buyer requests
assistance from the Seller in resolving a problem with the Supplies and the
information in the log is relevant to this resolution, the Buyer may at its sole
discretion make the log available to the Seller . If the Buyer presents a claim
against the warranty provided by the Seller, a copy of the log must be made
available to the Seller. It is understood by the Seller that the information
contained in the Log may be of a proprietary nature and is therefore covered by
the confidentiality agreement between the parties.
16. Training
The Seller agrees to provide up to two days of training in __________ operation,
preventative maintenance and repair to the Buyers' personnel at the Site during
or immediately after the installation period, with the exact dates and times to
be mutually agreed by the Buyer and Seller. The cost of such training shall be
the responsibility of the Seller.
17. Disclaimer of Liability for Personal Injury
The Seller and the Buyer hereby acknowledge that the products, as offered, are
highly sophisticated devices which should be operated only by trained personnel;
that it is the Buyer's sole obligation to retain and train such personnel or
have it trained, possibly by the Seller; that, where necessary, the Supplies
<PAGE>
contain interlocking devices designed to prevent their operation in a manner
which would cause injury to such personnel, but as in the case with all
equipment utilizing high voltages, such personnel should assume that the
interlocking devices are inoperative and should take appropriate measures to
ensure that the voltage has been turned off prior to begin working where high
voltage is present during the start up and/or operation of the Supplies; that it
is inherent in the operation of the Supplies that portions thereof may emit
dangerous ionizing radiation and may become activated during their normal
operation; that it is the Buyer's sole obligation to determine the level of
radioactivity, to ensure that a system exists for determining and recording the
levels of radioactivity and to ensure that no personnel or other persons are
exposed to radiation in excess of that permitted by relevant law or regulations.
Based upon the foregoing acknowledgments, it is, therefore, agreed that the
Seller shall not incur any liability for personal injury to any party arising
out of the operations and maintenance of the Supplies unless such liability is
solely caused by a gross negligence on the part of the Seller in the design,
implementation or documentation including but not limited to maintenance and
operation manuals for the Supplies. In order to give effect to these limitations
of the Seller's liability, and as an express condition of sale, the Buyer hereby
agrees to indemnify and hold the Seller harmless from any and all claims, but
limited by the exclusion of negligent acts or omissions as outlined in the
preceding sentence, damages and liability, including reasonable attorney's fees,
arising out of a claim against the Seller for personal injuries of any party
occasioned by the operation and/or maintenance of such Supplies.
18. Liability for Consequential Damages
The Seller's liability to the Buyer for damages howsoever caused shall under no
circumstances whatsoever (including the decision of an arbitration panel or
court of law) exceed the payments actually received by the Seller for the
Supplies and the Seller shall under no circumstances have any liability for
special, incidental, indirect or consequential damages, including without
limitation liability for loss of use, loss of profits, damage or injury to other
property or persons.
<PAGE>
19. Infringement of Proprietary Rights
a) The Seller shall indemnify and hold harmless the Buyer against any and all
losses, liabilities and expenses, by reason of any third party claim, suit,
action or proceeding for alleged infringement of any copyright, trademark or
patent of the Buyer's Country or alleged conversion of any trade secret
resulting from or arising in connection with the manufacture, installation, use
or sale of the Supplies or any part thereof including any and all judgments or
decrees which may be rendered against the Buyer (and reasonable attorney's fees
if Seller should fail to defend as provided in subsection b) hereof, and
settlements made arising out of any such claim, suit, action or proceeding
provided, however that this indemnity shall not extend to any infringement
resulting from a breach by the Buyer of this Agreement or of the Seller's
instructions for the operation of the Supplies. The Seller shall however not be
liable for any infringement or claim based upon the use of the Supplies or any
portion of the documentation in combination with other equipment or technology
not supplied by the Seller or resulting from any modification made by the Buyer,
without approval or instruction by Seller.
b) The Seller shall defend at its own expense all suits, actions or proceedings
brought against the Buyer with respect to the matters listed in subsection a)
above. The Buyer shall have the right at its option and at its sole expense, to
participate in the defense of any such claim, suit, action or proceeding,
without relieving the Seller of any obligation hereunder. The Buyer shall
promptly notify the Seller in writing after any such claim is made or suit is
brought and shall cooperate with Seller in the defense thereof as requested by
the Seller, and the Seller agrees to reimburse the Buyer for its reasonable
out-of-pocket expenses incurred at Seller's specific request in connection with
such cooperation. The Buyer shall immediately notify the Seller of any
infringement claim made or threatened and shall refrain from any admission of
liability, and will not negotiate or enter into any settlement without the
Seller's prior consent.
c) If, however, as a consequence of a final determination of any suit for
infringement or any court decision involving any injunction resulting from or
arising in connection with the manufacture or sale of the Supplies or any part
thereof furnished or employed by the Seller hereunder, the Buyer is enjoined or
limited in any material manner in the use of said Supplies or part, Seller
shall, at its option and at its own expense either i) procure for the Buyer the
right to continue use of said Supplies or part, ii) so modify the Supplies or
<PAGE>
part so as to render them non-infringing without any significant effect to use
thereof, or iii) replace the Supplies or part with an equivalent non-infringing
product.
20. Seller's and Buyer's Proprietary Information
Upon completion of the Acceptance Tests, the Seller shall furnish to the Buyer
free of charge information, manuals and drawings in English and with metric
units of measure relating to the Supplies and instructions to the Buyer in
sufficient detail to enable the Buyer and its employees to operate, calibrate,
maintain and repair the Supplies and all parts thereof. A definitive version of
the documentation, including the modifications that are specific to the Buyer's
configuration and that are made during the final stages of installation, will be
provided six (6) months after the completion of the Acceptances Tests. Such
information, manuals, drawings and instructions and the written materials
furnished by the Seller to the Buyer under the Section entitled "Preparatory
Work" hereof shall remain the property of the Seller and the Buyer shall have a
royalty-free license to use the same in connection with the operation,
calibration, maintenance and repair of the Supplies. The Buyer shall not use any
of the proprietary information supplied by the Seller for any other purpose than
the operation, calibration, maintenance and repair of the Supplies and the Buyer
shall not register, apply for registration or attempt to acquire any other legal
protection for the said proprietary information in its own name, or any other
name, or take any action which may affect the Seller's rights, title and
interest in and to the technology in any country, without obtaining the prior
consent of the Seller. The Buyer shall treat such information and materials in
the same manner as it treats its own proprietary information and will use
similar means to protect it from unauthorized disclosure. The same Buyer
covenants and agrees that the contents of such written information or materials
shall not be divulged to any other person, firm or corporation, except as
allowed above.
The Seller agrees that all information transmitted from Buyer to Seller under
this contract including but not limited to, information relating to research,
development, manufacturing, testing, accounting and marketing will be considered
confidential information. This confidential information will be held in
confidence and not disclosed to third parties by the Seller. This confidential
information shall be held in confidence by the Seller using the same degree of
care as the Seller uses in protecting its own confidential information. The
Seller shall only use such confidential information for the purpose of meeting
its obligations under this Agreement.
<PAGE>
21. Destruction of Supplies
In the event that prior to the delivery of the Supplies, the Supplies are lost,
destroyed or damaged to such an extent that they cannot be repaired and
delivered in accordance with the delivery schedule set forth in the Section
entitled "Installation of Supplies", provided the event is not a willful act of
the Seller, the time reasonably required by the Seller to furnish a replacement
for the Supplies or to accomplish such repairs shall be deemed an Excusable
Delay under the Section entitled "Excusable Delay" and the Seller shall not be
deemed to be in default or to have breached its duties hereunder.
22. Excusable Delay
Notwithstanding anything to the contrary herein contained, if the performance of
this Agreement by any party or the obligation of any party hereunder is
prevented, restricted or interfered with by reason of : i) fire, explosion,
strike, lockout, labor dispute, casualty or accident, epidemic, cyclone,
drought, flood or ii) war, revolution, riot, civil commotion, acts of public
enemies, blockage or embargo, or iii) any law or proclamation, regulation,
ordinance, demand or requirement of any applicable government or any subdivision
thereof or representative of any such government, or iv) any other acts
whatsoever, whether similar or dissimilar to those enumerated, beyond the
reasonable control of a party hereto, then, and in that event, the party so
affected shall promptly notify the other party of all reasonable resulting
difficulties. Upon such notice, the disabled party shall, for the duration of
its disability (referred to as "Excusable Delay" in this Agreement), be excused
from the performance of such of its obligations as are prevented, restricted, or
interfered with by reason of the occurrence of any of the events above
enumerated and such party shall not be deemed to be in default under this
Agreement nor be subject to any liability or damage. The time period during
which any party is to perform under this Agreement shall be extended by the
period of any Excusable Delay. Excusable Delay under the same terms occurring in
respect to the Seller's sub-contractors shall be deemed to be Excusable Delay
occurring to the Seller.
If the Seller is prevented from proceeding according to any of the schedules set
out in this Agreement by the Buyer's fault, by a delay on the part of the Buyer,
<PAGE>
or by regulatory body with jurisdiction over the Buyer's site, or if the Buyer
delays a payment or the issuance of a Letter of Credit pursuant to Section 3 by
more than fifteen (15) days past the due date, then all the dates contained in
this Agreement for completion by the Seller of its obligations and rights,
including but not limited to the right to exercise the accelerated delivery and
acceptance option, shall be postponed by an additional period equal to the
delay.
23. Termination for Insolvency
In the event that either the Buyer or the Seller :
a) makes a general assignment for the benefit of creditors or becomes insolvent;
b) files an insolvency petition in bankruptcy ;
c) petitions for or acquiesces in the appointment of any receiver, trustee or
similar officer to liquidate or conserve its business or any substantial part of
its assets ;
d) commences, under the laws of any jurisdiction, any proceeding involving its
insolvency, bankruptcy, reorganization, adjustment of debt, dissolution,
liquidation or any other similar proceeding for the release of financially
distressed debtors ; or
e) becomes a party to any proceeding or action of the type described above in c)
or d) and such proceeding or action remains undismissed or unstayed for a period
of more than sixty (60) days,
then the other party may, by written notice, terminate this Agreement.
24. Spare Parts
The Seller agrees to make available to the Buyer, as the Buyer may from time to
time require, _____________________ spare parts and components to the Supplies,
and the Seller agrees to exert reasonable efforts to meet the Buyer's delivery
requirements for said parts and components or acceptable substitutes. It is
understood that the parties shall negotiate in good faith reasonable and
mutually agreeable prices for said spare parts and components.
<PAGE>
25. Technical Assistance by the Seller
Immediately following the successful completion of the Acceptance Tests the
Seller shall send one of its specialists to assist the Buyer in bringing the
cyclotron to full operational capacity. The specialist shall be the project
coordinator or, if he is not available, someone of equal or better technical
expertise, this other person to be approved by the Buyer, such approval not to
be unreasonably withheld. The Seller's specialist will remain at the site for a
period of 28 days unless the Buyer agrees that the services of the specialist
are no longer required. During this period, the Buyer's specialist will define
the tasks to be performed by the Seller's specialist with the objective of
verifying the cyclotron 1) is fully operational, 2) performs according to
specifications within the production environment and 3) its automated control
system performs according to specifications. This period of technical assistance
does not relieve the Seller of any of its warranty obligations, including the
requirement that the Seller send any personnel required to the Site to make
repairs should the Supplies be found to not meet specifications during this
period.
26. Entire Agreement
This Agreement, made in two originals, one for each party, contains the entire
agreement between the parties and shall supersede all previous communications
and agreements, whether oral or written, with respect to the subject matter
hereof and the provisions hereof may not be modified or superseded except by an
instrument in writing signed by a duly authorized officer or representative of
each of the parties hereto.
27. Authorization
By virtue of having affixed their respective signatures below, each of the
parties hereto warrants that it has obtained all authorization necessary to
enter into and perform its obligations under this Agreement.
28. Effective Date
This Agreement shall become effective as of the date upon which payment i), as
set forth in Section entitled "Purchase Price of the Supplies", is received by
the Seller.
<PAGE>
29. Disputes
With respect to any controversy arising out of or relating to this Agreement,
such controversy shall be settled by final and binding arbitration in New York,
NY, USA, in accordance with the then-existing rules (the "Rules") of the
American Arbitration Association ("AAA") and judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction thereof;
provided, however, that the law applicable to any controversy and the law by
which this Agreement shall be construed and governed shall be the law of the
State of New York, regardless of its or any jurisdiction's choice of law
principles. In any arbitration, pursuant to this Agreement, the award or
decision shall be rendered by a majority of the members of a Board of
Arbitration consisting of three (3) members, one of whom shall be appointed by
each party and the third of whom shall be the Chairman of the panel and be
appointed by mutual agreement of said two party-appointed arbitrators. In the
event of failure of said two arbitrators to agree upon the appointment of the
third arbitrator within sixty (60) days after the commencement of the
arbitration proceeding, the third arbitrator shall be appointed by the AAA in
accordance with the Rules. In the event that either party shall fail to appoint
an arbitrator within thirty (30) days after the commencement of the arbitration
proceeding, such arbitrator and the third arbitrator shall be appointed by the
AAA in accordance with the Rules. The Rules of Evidence and the Right to
Discovery shall be applicable to both parties.
Work under this Agreement shall continue during the arbitration proceedings and
payments due to the Seller shall not be withheld on account of such proceedings
unless such particular work or payment is the subject matter of the arbitration
in which case this provision shall not apply to such particular work or payment.
The parties agree to equally share the expenses associated with this arbitration
procedure.
30. Governing Laws
This Agreement shall be governed by and construed in all respects in accordance
with the laws of the State of New York, USA.
<PAGE>
31. Notices
a) Any notice given under this Agreement shall be made in writing, shall be
given by first class air mail, telex, telecopier or commercial cable and shall
be addressed to :
In the case of the Seller:
Ion Beam Applications
Chemin du Cyclotron, 3
1348 Louvain-la-Neuve
Belgium
Attn : Mr. Yves Jongen
Fax Number : 32-10-47.58.10
In the case of the Buyer :
Theragenics Corporation
5325, Oakbrook Parkway
Norcross, GA 30093
USA
Attn : Mr. Glenn Dill
Fax Number : 1 (404) 381 84 47
Either party, by written notice to the other, may change the address to which
notices will be directed.
b) Any notice shall be deemed given on the date personally delivered or sent by
telex, telecopier or cable and fifteen (15) days after the date of mailing, if
mailed.
32. Project Coordinator
Upon signing this Agreement, both parties shall designate a representative who
will act as Project Coordinator and official addressee for all communication
resulting from this Agreement, other than any official notice given under the
Section entitled "Notices". All requests for service, transmittals of
information, reports on training activity, and other communication required
under this agreement shall be sent by and directed to the respective Project
Coordinators. Informal conversations occurring person-to-person or by phone,
<PAGE>
requests and information shall be validated by an appropriate written form as
confirmation. Any communication sent to others than those designated as Project
Coordinators, or in a manner not in accordance with the Notices procedure
specified in this Agreement will be considered as informal and non-existent.
33. Assignment
This Agreement shall inure to the benefit of and be binding upon each of the
parties hereto and their respective successors and assignees, but neither the
rights nor the duties of either party hereunder may be assigned, in whole or in
part by either party, without the prior written consent of the other party. Such
consent shall not be unreasonably withheld by either party. Any assignment shall
not relieve the assignee of any of the Agreement obligations of the assignor.
34. Headings
The headings contained within this Agreement are established solely for the
convenience of the two parties and are not intended to and do not limit,
construe or modify any of the terms and conditions included hereof.
35. Severability
If any term or provision of this Agreement is held to be illegal or
unenforceable, then this Agreement, except for such part or parts thereof, shall
continue to be in full force and effect.
In the event of any inconsistency between a provision of the conditions of the
Agreement and the content of an Appendix to this Agreement, and if the parties
cannot agree on the clause to take precedence, the AAA of Section 29 will be
asked to mediate/arbitrate the dispute and the parties agree to abide by the
finding of said association.
36. Non-Waiver
The failure by either party to enforce at any time or for any period of time any
of the provisions hereof shall not be a waiver of such provisions nor of the
right of such party thereafter to enforce each and every such provision.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate by their duly qualified officers or representatives.
THERAGENICS CORPORATION Inc.
Not Required
Christine Jacobs
President
/s/ Bruce Smith /s/ Glenn Dill
Bruce Smith Glenn Dill
Chief Financial Officer
/s/ Yves Jongen /s/ Sabine de Voghel
Yves Jongen Sabine de Voghel
President Area Sales Manager
<PAGE>
APPENDIX
CYCLOTRON PARAMETERS
<PAGE>
APPENDIX
<PAGE>
APPENDIX
BUILDING REQUIREMENTS
<PAGE>
APPENDIX
BUILDING COMPLETION SPECIFICATIONS
<PAGE>
APPENDIX
INCLUDED SPARE PARTS
<PAGE>
APPENDIX
ACCEPTANCE CRITERIA
<PAGE>
APPENDIX
ACCEPTANCE TESTS
<PAGE>
APPENDIX
ACCELERATED DELIVERY AND ACCEPTANCE OPTION
The Buyer has the option to request to the Seller, at any time during this
Agreement, to work on an accelerated schedule basis in order to have the
Supplies accepted at an earlier date than the scheduled acceptance date of _____
_______. Official request must be made in writing and addressed to Yves Jongen,
President of IBA.
In the case the Buyer exercises this option, the Buyer will pay the Seller an
additional sum of _________ for each complete day between the actual date of
early acceptance and __________ including the day of __________.
EXHIBIT 10.23(c)
Purchase Agreement
between
Theragenics Corporation
and
Ion Beam Applications s.a.
dated
December 27, 1996
Confidentialportions of this document have been blanked out and have been filed
separately with the Securities and Exchange Commission.
<PAGE>
Purchase Agreement
between
Theragenics Corporation Inc.
and
Ion Beam Applications S.A.
for
_______________ Cyclotron Number 7
and
Related Target Equipment
<PAGE>
Table of Contents
Purchase Agreement
1. Interpretation............................................................3
2. Subject Matter of Sale....................................................4
3. Purchase Price of the Supplies............................................5
4. Title and Risk of Loss....................................................7
5. Delivery..................................................................7
6. Installation of Supplies..................................................7
7. Preparatory Work..........................................................9
8. Acceptance...............................................................11
9. Transportation and Insurance.............................................13
10. Export Documents, Duties and Foreign Taxes...............................14
11. Customs Duties, Buyer's Country Taxes and Import Permits.................14
12. Warranty As To Title.....................................................14
13. Design and Performance Warranty..........................................15
14. Material and Workmanship Warranty........................................15
15. Logging of Operations....................................................16
16. Training.................................................................16
17. Disclaimer of Liability for Personal Injury..............................16
18. Liability for Consequential Damages......................................17
19. Infringement of Proprietary Rights.......................................17
20. Seller's and Buyer's Proprietary Information.............................19
21. Destruction of Supplies..................................................20
22. Excusable Delay..........................................................20
23. Termination for Insolvency...............................................21
24. Spare Parts..............................................................21
25. Technical Assistance by the Seller.......................................21
26. Entire Agreement.........................................................22
27. Authorization............................................................22
28. Effective Date...........................................................22
29. Disputes.................................................................23
30. Governing Laws...........................................................23
31. Notices..................................................................23
32. Project Coordinator......................................................24
33. Assignment...............................................................25
34. Headings.................................................................25
35. Severability.............................................................25
36. Non-Waiver...............................................................25
Appendices
Cyclotron Parameters
_______________________________
Building Requirements
Building Completion Specifications
Included Spare Parts
Acceptance Criteria
Acceptance Tests
Accelerated Delivery and Acceptance Option
<PAGE>
Purchase Agreement
AGREEMENT made as of this 27th day of December 1996 by and between ION BEAM
APPLICATIONS, S.A., a corporation organized under the laws of Belgium, having
its principal office at Chemin du Cyclotron 3, 1348 Louvain-la-Neuve, Belgium
(hereinafter called the "Seller", which expression includes its successors and
permitted assignees) and THERAGENICS CORPORATION, having its principal office at
5325 Oakbrook Parkway, Norcross, Georgia 30093, USA (hereinafter called the
"Buyer", which expression includes its successors and permitted assignees).
WITNESSETH :
WHEREAS, the Seller wishes to sell to the Buyer and the Buyer wishes to buy from
the Seller, the Seller's model _____________ cyclotron, related _______
equipment and spare parts therefore, all as more particularly described herein :
and
WHEREAS, the Buyer wishes the Seller to assemble, install, start up, test and
make operational the ______________ cyclotron to be purchased including related
equipment and the Seller is willing to undertake this task : and
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows :
1. Interpretation
In this Agreement, unless the contrary intention appears :
"Acceptance" means the process whereby the Seller demonstrates to the Buyer that
the Supplies provided meet the requirements of the Agreement. This process shall
consist of a series of tests, the "Acceptance Tests" as defined in Appendix
"Acceptance Tests", which demonstrate the Supplies meet the guaranteed
specifications, the Acceptance Criteria.
<PAGE>
"Acceptance Criteria" mean the guaranteed specifications of the Supplies as
defined in Appendix "Acceptance Criteria".
"Acceptance Date" means the date on which the Buyer agrees that based on the
Acceptance Tests, the Supplies have met the Acceptance Criteria . The Supplies
shall be deemed accepted when the Buyer and Seller agree in writing that the
Acceptance Tests have been successfully completed.
"Acceptance Tests" are the tests listed in Appendix "Acceptance Tests".
"Agreement" means this document and includes its Appendices.
"Buyer's Country" means the country where the Site is located.
"Day" means calendar day; "Week" means calendar week; "Month" means calendar
month.
When the last day of any period prescribed for the execution of any assignment
falls on a day which is not a working day in Belgium or in the Buyer's Country,
the assignment may be performed on the first working day following the
aforementioned day.
"Effective Date" has the meaning set forth in Section entitled "Effective Date".
"Excusable Delay" has the meaning set forth in Section entitled "Excusable
Delay".
"Site" means the Buyer's facility in Buford, Georgia, USA.
"Supplies" means all equipment, hardware, software (including installation) and
the associated documentation, support equipment and services to be provided
under the Agreement, as detailed in Appendix "Cyclotron Parameters" and Appendix
"_______________________ ".
<PAGE>
2. Subject Matter of Sale
Subject to the terms and conditions of this Agreement :
a) The Seller shall sell and deliver to the Buyer and the Buyer shall purchase
from the Seller (i) a __________________ cyclotron, the technical specifications
of which are more fully described in the Appendix "Cyclotron Parameters"
Appendix hereto; (ii) _______________________, the technical specifications of
which are more fully described in the Appendix "____________________________"
hereto; and (iii) a set of spare parts listed in the Appendix "Included Spare
Parts" hereto;
b) The Seller shall also assemble, install, start up, test, make operational and
perform the Acceptance Tests on the Supplies.
c) The Seller shall send one of his specialists to assist in bringing the
cyclotron to full operational capacity after Acceptance of the Supplies by the
Buyer, as described in Section 25.
d) The Buyer and Seller agree that an option for accelerated delivery and
acceptance as described in Appendix "Accelerated Delivery and Acceptance Option"
may be exercised by the Buyer. In case that option is exercised by the Buyer,
the covenants of the "Accelerated Delivery and Acceptance Option" Appendix shall
be applicable to both parties.
3. Purchase Price of the Supplies
a) The aggregate purchase price (hereinafter the "Price") of the Supplies,
including packaging, insurance and transportation of the Supplies to the Site,
the assembly, testing and start up of the Supplies described in the Section
entitled "Subject Matter of Sale" above, shall be ____________________
________________________________. This price shall also include the technical
assistance by the Seller as described in Section 25, the Spare Parts as listed
in Appendix "Included Spare Parts" and the Seller's contribution to the
applicable USA customs duty as stated in Section 11 of this Agreement.
b) As a down payment equivalent to ____________ has been made by the Buyer to
the Seller on November 6, 1996, the balance of the Price set forth in subsection
a) shall be payable as follows:
<PAGE>
i) ____________________________________________________________________ to
be paid to the Seller upon execution of this Agreement;
ii) ____________________________________________________________ to be paid
to the Seller on March 1, 1997. This payment shall be guaranteed by an
irrevocable standby letter of credit to be issued in favor of and approved by
the Seller within one month from the Effective Date.
iii)_____________________________________________________________ to be
paid to the Seller on January 1, 1998. This payment shall be guaranteed by an
irrevocable standby letter of credit to be issued in favor of and approved by
the Seller by March 1, 1997.
iv) _________________________________________________________ to be paid to
the Seller within 15 days from shipment of the Supplies as evidenced by receipt
of the shipping documents and no later than June 1, 1998 if the shipment is
delayed by Buyer's fault. This payment shall be guaranteed by an irrevocable
standby Letter of Credit to be issued in favor of and approved by the Seller by
the date of shipping of the Supplies, to be notified by Seller to the Buyer at
least 30 days in advance.
v) _________________________________________________________ to be paid to
the Seller within 15 days of the Acceptance of the Supplies. This payment shall
be guaranteed by an irrevocable stand-by Letter of Credit, which can only be
exercised during the year following the delivery of the Supplies, and
conditioned only upon successful completion of the Acceptance Tests and
providing further that, in the event the Seller is prevented by the Buyer's
fault, by a delay on the part of the Buyer, or by a regulatory body with
jurisdiction over the Buyer from completing the Acceptance Tests for a period of
sixty (60) days or more, payment thereunder to the Seller shall be made upon
demand of the Seller. This Letter of Credit shall be issued in favor of and
approved by the Seller, such approval not to be unreasonably withheld, by the
date of shipping of the Supplies, to be notified by Seller to Buyer at least
thirty days in advance.
c) All payments by the Buyer to the Seller under this Agreement shall be in
Belgian Francs and, except those specified in paragraph 3. b) above, shall be
made by wire transfer within thirty (30) days from the date of invoice.
<PAGE>
d) All payments by the Buyer to the Seller will be deemed to have been made by
the Buyer on the date on which the Seller has been credited for the proper
amounts. Any payment due to the Seller which is not paid on the due date shall
accrue interest for each started month of delay at an annual rate of one point
above the rate of the "Avance en Compte Courant Hors Plafond de la Banque
Nationale de Belgique" as published in "l'Echo" on the first day of such month.
4. Title and Risk of Loss
Except as indicated below in this paragraph, title to the Supplies shall be
transferred from the Seller to the Buyer when and to the extent payments are
received by the Seller. The Buyer represents and warrants that it shall not
cause or permit to be caused any lien or encumbrance of any kind to be placed
upon the Supplies to an extent greater than its share of ownership in the
Supplies. It is understood that if the Seller is unable to demonstrate the
Supplies meet the Acceptance Criteria within one year of delivery of the
Supplies to the Buyer's Site, clear title to the Supplies transfers to the Buyer
without obligation to pay to the Seller the final payment specified in Section
3.b.v unless the Seller has been prevented from conducting the Acceptance Tests
as described in Section 8, last paragraph.
Risk of loss of any part of the Supplies shall pass from the Seller to the Buyer
upon delivery of such parts to the Site.
5. Delivery
The Seller shall deliver the Supplies to the Buyer at the Site and set the
Supplies in their final location.
6. Installation of Supplies
a) The assembly and installation of the Supplies at the Site and the Acceptance
Tests are planned to be completed by _____________________________________ after
completion of Site preparation by the Buyer at the Seller's reasonable
satisfaction as evidenced by an acceptance document of the Site ("Site
Acceptance Document") signed by the Seller, whichever is later. The Seller
undertakes to make its best efforts to complete the installation and testing
<PAGE>
within this period. During the installation period the Buyer shall permit the
Seller's employees, subcontractors or agents unlimited access to the Site
provided said individuals comply with policies and procedures established for
the Buyer's employees regarding such matters as health and safety issues.
b) With reasonable notice to the Seller, the Buyer and its authorized
representatives shall, during reasonable working hours, be free to inspect the
quality and conditions of the Supplies at the Seller's site during fabrication
and at any time upon arrival of the same at the Site and during the installation
period. The Seller will notify in writing to the Buyer when the major materials
are available for construction of the cyclotron.
c) The Buyer at its sole expense shall provide the Seller with closed premises
on or reasonably near the Site in which the Seller may store employee clothing
and tools and equipment required for the installation. However, the Buyer does
not assume any risk with respect to the loss or theft of any such items while on
the Buyer's premises.
d) The Buyer shall, at its sole expense, provide the Seller with the following
utilities required for installation of the Supplies and Acceptance Tests on the
Supplies: electricity, water, compressed air, dry nitrogen for venting the
vacuum chamber, hydrogen gas for the ion source, as described in Appendix
"Building Requirements". Access to telephone and fax equipment connected to the
international network is required and the Seller will pay the charges associated
with the use of this line. The Buyer shall provide all the necessary radiation
measuring equipment required for the operation and the Acceptance Tests on the
Supplies.
e) Within fifteen (15) days from the date of delivery of the cyclotron at the
Site, the Buyer shall permit the Seller to produce beams at full energy and full
intensity in the cyclotron vault.
f) The Price reflects labor provided by the Seller. Any additional labor or
costs required by local labor codes, etc. will be the responsibility of the
Buyer.
g) The Supplies are manufactured according to Belgian technical standards. If
the Buyer requires compliance of the Supplies with specific technical standards,
these technical standards must be notified by the Buyer to the Seller within
<PAGE>
seven weeks of the Effective Date. All additional costs related to making the
Supplies conform to those norms or specific standards shall be charged to the
Buyer.
7. Preparatory Work
a) The Buyer shall have the sole responsibility, at its sole expense, for the
work required to prepare the Site for installation of the Supplies. The building
to house the Supplies and the systems contained therein shall comply with the
specifications detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications". As soon as possible after completion, and,
at the latest, on_____________, the Seller shall prepare for the Buyer a
proposed layout and prepare such other plans and memoranda as are necessary to
transmit data to the Buyer's architects and engineers. By __________________,
the Buyer shall furnish to the Seller drawings and plans for the Site including
the building and systems detailed in Appendix "Building Requirements" and
Appendix "Building Completion Specifications" in sufficient detail to enable the
Seller to judge whether the Site will be satisfactory for the Supplies and will
meet the specifications detailed in Appendix "Building Requirements" and
Appendix "Building Completion Specifications". Within four (4) weeks of the
receipt of this initial set of architectural and engineering drawings and plans,
the Seller shall provide the Buyer with comments thereon and detailed
information as to such modifications therein as the Seller deems necessary
including such drawings and technical documents as may be required by the Buyer
to complete the installation of the cables, cooling water and compressed air
systems. However, the time devoted to preparation by personnel of Seller of
additional layouts or drawings and/or reviews of revised sets of architectural
and engineering drawings will be invoiced at Seller's regular rates. No
additional charge will be made for telephone consultations. Travel and related
expenses incurred as a result of attendance by personnel of the Seller required
at meeting outside of Belgium with the Buyer's architects, engineers,
consultants and/or representatives will be reimbursed by the Buyer. With respect
to the foregoing, the responsibility for determining whether conflict exists
between local building codes and/or other laws or government regulations and the
content of drawings, data sheets, memoranda or other forms of communication
submitted by the Seller is solely the responsibility of the Buyer, his
architects, engineers and/or consultants. The definitive drawings and plans for
the Site, made in accordance with the Seller's comments and recommendations,
will then be furnished by the Buyer to the Seller by ________________. In
addition, unless otherwise specified, the Buyer shall have the sole
responsibility for the design and construction of the radiation monitoring
systems, of the shielding required to
<PAGE>
prevent radiation leakage and of the systems required to handle the disposal of
radioactive waste.
Any delay on the part of the Seller in meeting its obligations related to this
Section by more than ten (10) days will add a number of days to the period
provided for the performance by the Buyer equal to the number of days of delay
by the Seller.
b) Before commencing installation, the Seller shall inspect the Site and the
Buyer shall submit to the Seller the Site Acceptance Document to be signed by
the Seller confirming that the preparatory work meets all the criteria set forth
in the Section entitled "Installation of Supplies", paragraph c) and d) and in
Appendix "Building Requirements" and Appendix "Building Completion
Specifications". This acceptance document only indicates the Seller's
willingness to begin the installation of the Supplies in the Buyer's building.
It does not discharge the Buyer and his subcontractors of any of their
responsibilities regarding the building. The Buyer shall complete the
preparatory work at the Site by ____________. If the preparatory work as regards
the cyclotron vault is substantially completed before that date, the Buyer shall
accept delivery and/or installation of the Supplies as soon as possible under
the applicable laws and regulations. In the event that such work has not been
completed before that date, or if for any other reason the Buyer is unable to
accept delivery of the Supplies or commencement of the installation thereof by
that date, the Buyer shall immediately give the Seller written notice of this
fact and the anticipated new date for completion of the preparatory work. In any
case, the Seller may ship the Supplies to the Buyer at any time and the Buyer
shall store them in one of its warehouses until the date the preparatory work is
completed.
c) One week before commencing installation and setting of the cyclotron in its
vault, the Buyer shall allow the Seller full access to the cyclotron vault,
power supplies and control room and all other rooms related to the installation
of the Supplies to allow for the measurement of line-up marks to be performed.
d) The Buyer's completion, to the reasonable satisfaction of the Seller, of its
undertakings in this section and elsewhere in this Agreement relating to
preparation of the Site and the continuous furnishing of necessary services and
permits set forth in the Section entitled "Installation of Supplies", paragraph
c), d) and e) and in Section entitled "Custom Duties, Buyer's Country Taxes and
<PAGE>
Import Permits" and the requirements detailed in Appendix "Building
Requirements" and Appendix "Building Completion Specifications" shall be a
condition precedent to the Seller's commitment to perform within the time period
specified under the Section entitled "Installation of Supplies" hereof, and any
delay or interruption by the Buyer in meeting its obligations under this
Agreement in a timely fashion shall extend the Seller's time to perform under
this Agreement including but not limited to Seller's time to exercise and
perform under the option for accelerated delivery and acceptance outlined in
Appendix "Accelerated Delivery and Acceptance Option", by a period equal to the
period of the Buyer's delay or interruption plus, if shipment and/or delivery is
delayed by Buyer's fault or at Buyer's request, an additional period not to
exceed four weeks to reschedule shipment and/or delivery of the Supplies and/or
personnel as may be required.
In the event of any such delay or interruption, the Buyer will reimburse the
Seller for any reasonable costs incurred as a direct result of such delay or
interruption. Additionally, if such postponement or interruption delays the
Buyer's obligation to make any of the payments set forth in Section entitled
"Purchase Price of the Supplies", paragraph b) hereof, interest will be computed
for each started month of delay at an annual rate one point above the rate of
the "Avance en Compte Courant Hors Plafond de la Banque Nationale de Belgique"
as published in "l'Echo" on the first day of such month.
If all the conditions necessary for the Seller to sign the Site Acceptance
Document referred to in the above Section have not been met at the time of
delivery of the Supplies, the Seller will nonetheless make its best efforts to
start the installation of the Supplies as soon as reasonably possible and the
Buyer will give the Seller any reasonable support to allow the Seller to do so.
However, beginning of installation of the Supplies in the building, under such
conditions, will under no circumstances be considered as implicit acceptance of
the Site by the Seller.
8. Acceptance
On the date set by the Seller for the conduct of the Acceptance Tests, and in
the presence of the Buyer's representatives, the Seller shall begin to conduct
the agreed-upon Acceptance Tests.
Not more than twenty four (24) hours following the completion of such tests, the
Buyer shall either accept the Supplies as conforming to the requirements of the
<PAGE>
Agreement by issuing an acceptance certificate "Acceptance Certificate"
acknowledging that decision, or advise the Seller in writing of the extent to
which the Supplies do not meet the requirements of the Agreement.
The Buyer shall not withhold the issue of the Acceptance Certificate on account
of minor omissions or defects in the Supplies which do not substantially affect
their use but may designate in the Acceptance Certificate such minors omissions
or defects. The Seller shall promptly make good these omissions or defects.
If the Buyer does not give notice within the period stipulated above, or begins
using the Supplies for its own use, such tests shall be deemed satisfactorily
completed, the Acceptance Certificate shall be deemed issued on that date and
the related acceptance payment shall be paid to the Seller within 15 days from
that date.
If the Buyer gives the Seller notice that such tests have not been
satisfactorily completed, the Seller shall make such adjustments as are
necessary and repeat the Acceptance Tests until the Buyer deems them
satisfactory pursuant to the terms set out above.
Until _____________, the Seller shall have unimpeded access to the Supplies to
complete the Acceptance Tests. If the Seller is unable to successfully complete
the Acceptance Tests by _______________, the Buyer shall be free to begin use of
the Supplies forty five (45) days later. Should the Supplies be put into use
under this condition, it is understood the Buyer and Seller will make a good
faith effort to facilitate the completion of the Acceptance Tests, but it is
further understood that the Buyer's production of Pd-103 with the machine takes
precedence. The Buyer agrees to allow the Seller three (3) prescheduled days of
unimpeded access to the Supplies per month during the period
between________________, until the period for acceptance has expired as
specified in Section 4 "Title and Risk of Loss".
If a dispute arises between the Buyer and the Seller concerning whether the
Acceptance Tests have been successfully completed or concerning the issuance of
the Acceptance Certificate, the Buyer and the Seller will jointly agree to
obtain the services of the American Arbitration Association ("AAA") to arbitrate
the dispute, as described in Section 29 hereafter. Both parties will abide by
AAA's recommendations.
<PAGE>
If the Seller is prevented either by the Buyer or by any regulatory body that
has juridiction over the Buyer from conducting the Acceptance Tests for a period
of sixty (60) days, the Buyer shall be deemed to have accepted the Supplies
sixty (60) days after the Seller was first prevented from conducting the
Acceptance Tests. If the Seller is prevented by force majeure or events similar
to those enumerated under Section "Excusable Delay" from conducting the
Acceptance Tests, the Buyer shall pay 50% of the Acceptance payment as defined
in Section 3 b) v). In either case the Seller shall complete the Acceptance
Tests within the period remaining at the time the impediment began.
9. Transportation and Insurance
Seller shall at its own expense :
i) Obtain appropriate property and liability insurance covering loss or damage
to the Supplies and injuries to individuals during the construction of the
Supplies and during the transportation of the Supplies from the Seller's plant
to the Site.
ii) Pay all freight and other transportation charges associated with delivery of
the Supplies to the Site, and have a representative present during the transfer
of the Supplies from the port of entry to the Site.
iii) Maintain worker's compensation insurance during the assembly, installation
and testing of the Supplies, as required by applicable law, covering its
employees and, upon request from Buyer, provide a certificate of insurance
evidencing such coverage.
Buyer shall at its own expense:
i) Obtain appropriate property and liability insurance covering loss or damage
to the Supplies between delivery of the Supplies at the Site and the time when
the Seller has been paid in full for the amounts under Section entitled
"Purchase Price of the Supplies". In such insurance policies, both the Buyer and
the Seller shall be named as insured parties.
ii) Arrange for the destruction, pick-up and/or clearing away of all waste,
including the Supplies packaging except for the disposal of radioactive waste
which is covered in section 12 of appendix "Building Completion Specifications".
<PAGE>
The Buyer and the Seller shall each take out and maintain at their own expense
during the period from receipt of the Supplies at the Site through Acceptance,
insurance to provide coverage for both itself and the other party for an amount
of at least one million US dollars (US$ 1,000,000) per accident against any
direct and indirect liability for bodily injury and death to individuals and all
direct or indirect costs, losses and damages to the property of the other
arising out of each other's acts or omissions in unloading, assembling,
installing and testing of the Supplies.
10. Export Documents, Duties and Foreign Taxes
The Seller will be responsible for obtaining all necessary export permits or
licences relating to the Supplies and the Buyer will offer such reasonable
assistance in this regard as the Seller may request. The Seller shall pay any
and all export duties and all other taxes required to be paid outside of the
Buyer's Country in connection with the sale of the Supplies.
11. Customs Duties, Buyer's Country Taxes and Import Permits
The Buyer shall pay all sales, use, gross receipts, excise and other taxes
assessed or levied by the Buyer's Country or any other taxing jurisdiction,
state or local, within the Buyer's Country, against the Buyer (including any
fines, penalties and interests thereof) as a result of or in connection with the
sale, use, delivery, storage or transfer of the Supplies.
The Seller agrees to equally share with the Buyer the cost of the import customs
duties levied by the customs authorities of the USA at the entry of the Supplies
into the USA, up to a maximum cost for the Seller equal to two percent (2%) of
the price of the Supplies.
The Buyer shall be responsible for obtaining all necessary permits or licences
with respect to the importation of the Supplies in the Buyer's Country and the
installation and use of the Supplies at the Site, and the Seller will offer the
Buyer such reasonable assistance in this regard as the Buyer may request.
12. Warranty As To Title
The Seller warrants good title to the Supplies.
<PAGE>
13. Design and Performance Warranty
The Seller hereby warrants that the Supplies will perform in accordance with
applicable design and performance specifications set forth in Appendix
"Cyclotron Parameters" and in Appendix " " for a period of one (1) year after
the Acceptance Date. The Seller shall resolve any design flaws appearing during
the first year following the Acceptance of the Supplies.
14. Material and Workmanship Warranty
The Seller hereby warrants that the Supplies will be free from defects in
material and workmanship for a period of one (1) year from the date of
acceptance of the Supplies by the Buyer or fifteen (15) months from the date the
Supplies are put in their final location in the Buyer's vault if the Acceptance
Date is delayed at the Buyer's request or through the Buyer's fault, whichever
period is shorter: provided, however, that this warranty shall not apply to ion
source stamped cathodes and chimneys, puller electrodes, air filters, targets,
oil for the vacuum pumps, demineralizing column, gas bottles (H2 for the ion
source, N2 for venting,...), and other consumables; that the Seller makes no
warranty with respect to failures notified after the warranty period or failures
during operation without logging or failures due to alteration, misapplications,
abuse, abnormal conditions of temperature, dirt, corrosive matter, maintenance
not carried out according to the Seller's instructions, lack of trained
personnel for maintenance, operation above rated capacities either intentional
or otherwise, or in an otherwise improper manner or physical damage caused by
persons other than employees or agents of the Seller; that the Seller's sole
liability under valid warranty regarding claims for defects in material and
workmanship is limited, at the option of the Seller, to repair or replacement of
the defective parts; that with respect to components purchased by the Seller for
incorporation into the Supplies essentially without modification, the Seller
makes no warranties of its own but assigns to the Buyer the full warranty
extended to the Seller as part of the original purchase of the component.
If, due to a fault of the Seller, the Supplies have not passed the Acceptance
Tests by _____________, the Seller's warranty shall start and be in effect until
__________________.
<PAGE>
The Seller shall bear the cost and risk of loss during transport of (i) any
defective part or components being returned to the Seller's factory with the
Seller's agreement and (ii) any repaired or replacement item being returned to
the Buyer. Products or parts returned without the agreement of the Seller shall
be at the Buyer's sole risk and expense. The Seller shall bear any personnel
costs incurred in connection with the fulfillment of the Seller's obligations
under this warranty.
The foregoing warranties are exclusive and are given and accepted in lieu of all
other warranties of quality written or oral, express or implied, and all other
warranties are hereby disclaimed.
15. Logging of Operations
The Buyer shall keep a logbook of operation for the Supplies. In this logbook
shall be documented all sessions of operation of the Supplies as well as any
problems encountered during operation of the Supplies. If the Buyer requests
assistance from the Seller in resolving a problem with the Supplies and the
information in the log is relevant to this resolution, the Buyer may at its sole
discretion make the log available to the Seller . If the Buyer presents a claim
against the warranty provided by the Seller, a copy of the log must be made
available to the Seller. It is understood by the Seller that the information
contained in the Log may be of a proprietary nature and is therefore covered by
the confidentiality agreement between the parties.
16. Training
The Seller agrees to provide up to two days of training in _________ operation,
preventative maintenance and repair to the Buyers' personnel at the Site during
or immediately after the installation period, with the exact dates and times to
be mutually agreed by the Buyer and Seller. The cost of such training shall be
the responsibility of the Seller.
17. Disclaimer of Liability for Personal Injury
The Seller and the Buyer hereby acknowledge that the products, as offered, are
highly sophisticated devices which should be operated only by trained personnel;
that it is the Buyer's sole obligation to retain and train such personnel or
<PAGE>
have it trained, possibly by the Seller; that, where necessary, the Supplies
contain interlocking devices designed to prevent their operation in a manner
which would cause injury to such personnel, but as in the case with all
equipment utilizing high voltages, such personnel should assume that the
interlocking devices are inoperative and should take appropriate measures to
ensure that the voltage has been turned off prior to begin working where high
voltage is present during the start up and/or operation of the Supplies; that it
is inherent in the operation of the Supplies that portions thereof may emit
dangerous ionizing radiation and may become activated during their normal
operation; that it is the Buyer's sole obligation to determine the level of
radioactivity, to ensure that a system exists for determining and recording the
levels of radioactivity and to ensure that no personnel or other persons are
exposed to radiation in excess of that permitted by relevant law or regulations.
Based upon the foregoing acknowledgments, it is, therefore, agreed that the
Seller shall not incur any liability for personal injury to any party arising
out of the operations and maintenance of the Supplies unless such liability is
solely caused by a gross negligence on the part of the Seller in the design,
implementation or documentation including but not limited to maintenance and
operation manuals for the Supplies. In order to give effect to these limitations
of the Seller's liability, and as an express condition of sale, the Buyer hereby
agrees to indemnify and hold the Seller harmless from any and all claims, but
limited by the exclusion of negligent acts or omissions as outlined in the
preceding sentence, damages and liability, including reasonable attorney's fees,
arising out of a claim against the Seller for personal injuries of any party
occasioned by the operation and/or maintenance of such Supplies.
18. Liability for Consequential Damages
The Seller's liability to the Buyer for damages howsoever caused shall under no
circumstances whatsoever (including the decision of an arbitration panel or
court of law) exceed the payments actually received by the Seller for the
Supplies and the Seller shall under no circumstances have any liability for
special, incidental, indirect or consequential damages, including without
limitation liability for loss of use, loss of profits, damage or injury to other
property or persons.
<PAGE>
19. Infringement of Proprietary Rights
a) The Seller shall indemnify and hold harmless the Buyer against any and all
losses, liabilities and expenses, by reason of any third party claim, suit,
action or proceeding for alleged infringement of any copyright, trademark or
patent of the Buyer's Country or alleged conversion of any trade secret
resulting from or arising in connection with the manufacture, installation, use
or sale of the Supplies or any part thereof including any and all judgments or
decrees which may be rendered against the Buyer (and reasonable attorney's fees
if Seller should fail to defend as provided in subsection b) hereof, and
settlements made arising out of any such claim, suit, action or proceeding
provided, however that this indemnity shall not extend to any infringement
resulting from a breach by the Buyer of this Agreement or of the Seller's
instructions for the operation of the Supplies. The Seller shall however not be
liable for any infringement or claim based upon the use of the Supplies or any
portion of the documentation in combination with other equipment or technology
not supplied by the Seller or resulting from any modification made by the Buyer,
without approval or instruction by Seller.
b) The Seller shall defend at its own expense all suits, actions or proceedings
brought against the Buyer with respect to the matters listed in subsection a)
above. The Buyer shall have the right at its option and at its sole expense, to
participate in the defense of any such claim, suit, action or proceeding,
without relieving the Seller of any obligation hereunder. The Buyer shall
promptly notify the Seller in writing after any such claim is made or suit is
brought and shall cooperate with Seller in the defense thereof as requested by
the Seller, and the Seller agrees to reimburse the Buyer for its reasonable
out-of-pocket expenses incurred at Seller's specific request in connection with
such cooperation. The Buyer shall immediately notify the Seller of any
infringement claim made or threatened and shall refrain from any admission of
liability, and will not negotiate or enter into any settlement without the
Seller's prior consent.
c) If, however, as a consequence of a final determination of any suit for
infringement or any court decision involving any injunction resulting from or
arising in connection with the manufacture or sale of the Supplies or any part
thereof furnished or employed by the Seller hereunder, the Buyer is enjoined or
limited in any material manner in the use of said Supplies or part, Seller
shall, at its option and at its own expense either i) procure for the Buyer the
right to continue use of said Supplies or part, ii) so modify the Supplies or
<PAGE>
part so as to render them non-infringing without any significant effect to use
thereof, or iii) replace the Supplies or part with an equivalent non-infringing
product.
20. Seller's and Buyer's Proprietary Information
Upon completion of the Acceptance Tests, the Seller shall furnish to the Buyer
free of charge information, manuals and drawings in English and with metric
units of measure relating to the Supplies and instructions to the Buyer in
sufficient detail to enable the Buyer and its employees to operate, calibrate,
maintain and repair the Supplies and all parts thereof. A definitive version of
the documentation, including the modifications that are specific to the Buyer's
configuration and that are made during the final stages of installation, will be
provided six (6) months after the completion of the Acceptances Tests. Such
information, manuals, drawings and instructions and the written materials
furnished by the Seller to the Buyer under the Section entitled "Preparatory
Work" hereof shall remain the property of the Seller and the Buyer shall have a
royalty-free license to use the same in connection with the operation,
calibration, maintenance and repair of the Supplies. The Buyer shall not use any
of the proprietary information supplied by the Seller for any other purpose than
the operation, calibration, maintenance and repair of the Supplies and the Buyer
shall not register, apply for registration or attempt to acquire any other legal
protection for the said proprietary information in its own name, or any other
name, or take any action which may affect the Seller's rights, title and
interest in and to the technology in any country, without obtaining the prior
consent of the Seller. The Buyer shall treat such information and materials in
the same manner as it treats its own proprietary information and will use
similar means to protect it from unauthorized disclosure. The same Buyer
covenants and agrees that the contents of such written information or materials
shall not be divulged to any other person, firm or corporation, except as
allowed above.
The Seller agrees that all information transmitted from Buyer to Seller under
this contract including but not limited to, information relating to research,
development, manufacturing, testing, accounting and marketing will be considered
confidential information. This confidential information will be held in
confidence and not disclosed to third parties by the Seller. This confidential
information shall be held in confidence by the Seller using the same degree of
care as the Seller uses in protecting its own confidential information. The
Seller shall only use such confidential information for the purpose of meeting
its obligations under this Agreement.
<PAGE>
21. Destruction of Supplies
In the event that prior to the delivery of the Supplies, the Supplies are lost,
destroyed or damaged to such an extent that they cannot be repaired and
delivered in accordance with the delivery schedule set forth in the Section
entitled "Installation of Supplies", provided the event is not a willful act of
the Seller, the time reasonably required by the Seller to furnish a replacement
for the Supplies or to accomplish such repairs shall be deemed an Excusable
Delay under the Section entitled "Excusable Delay" and the Seller shall not be
deemed to be in default or to have breached its duties hereunder.
22. Excusable Delay
Notwithstanding anything to the contrary herein contained, if the performance of
this Agreement by any party or the obligation of any party hereunder is
prevented, restricted or interfered with by reason of : i) fire, explosion,
strike, lockout, labor dispute, casualty or accident, epidemic, cyclone,
drought, flood or ii) war, revolution, riot, civil commotion, acts of public
enemies, blockage or embargo, or iii) any law or proclamation, regulation,
ordinance, demand or requirement of any applicable government or any subdivision
thereof or representative of any such government, or iv) any other acts
whatsoever, whether similar or dissimilar to those enumerated, beyond the
reasonable control of a party hereto, then, and in that event, the party so
affected shall promptly notify the other party of all reasonable resulting
difficulties. Upon such notice, the disabled party shall, for the duration of
its disability (referred to as "Excusable Delay" in this Agreement), be excused
from the performance of such of its obligations as are prevented, restricted, or
interfered with by reason of the occurrence of any of the events above
enumerated and such party shall not be deemed to be in default under this
Agreement nor be subject to any liability or damage. The time period during
which any party is to perform under this Agreement shall be extended by the
period of any Excusable Delay. Excusable Delay under the same terms occurring in
respect to the Seller's sub-contractors shall be deemed to be Excusable Delay
occurring to the Seller.
If the Seller is prevented from proceeding according to any of the schedules set
out in this Agreement by the Buyer's fault, by a delay on the part of the Buyer,
<PAGE>
or by a regulatory body with jurisdiction over the Buyer's site, or if the Buyer
delays a payment or the issuance of a Letter of Credit pursuant to Section 3 by
more than fifteen (15) days past the due date, then all the dates contained in
this Agreement for completion by the Seller of its obligations and rights,
including but not limited to the right to exercise the accelerated delivery and
acceptance option, shall be postponed by an additional period equal to the
delay.
23. Termination for Insolvency
In the event that either the Buyer or the Seller :
a) makes a general assignment for the benefit of creditors or becomes insolvent;
b) files an insolvency petition in bankruptcy ;
c) petitions for or acquiesces in the appointment of any receiver, trustee or
similar officer to liquidate or conserve its business or any substantial part of
its assets ;
d) commences, under the laws of any jurisdiction, any proceeding involving its
insolvency, bankruptcy, reorganization, adjustment of debt, dissolution,
liquidation or any other similar proceeding for the release of financially
distressed debtors ; or
e) becomes a party to any proceeding or action of the type described above in c)
or d) and such proceeding or action remains undismissed or unstayed for a period
of more than sixty (60) days,
then the other party may, by written notice, terminate this Agreement.
24. Spare Parts
The Seller agrees to make available to the Buyer, as the Buyer may from time to
time require, _____________, spare parts and components to the Supplies, and the
Seller agrees to exert reasonable efforts to meet the Buyer's delivery
requirements for said parts and components or acceptable substitutes. It is
understood that the parties shall negotiate in good faith reasonable and
mutually agreeable prices for said spare parts and components.
<PAGE>
25. Technical Assistance by the Seller
Immediately following the successful completion of the Acceptance Tests the
Seller shall send one of its specialists to assist the Buyer in bringing the
cyclotron to full operational capacity. The specialist shall be the project
coordinator or, if he is not available, someone of equal or better technical
expertise, this other person to be approved by the Buyer, such approval not to
be unreasonably withheld. The Seller's specialist will remain at the site for a
period of 28 days unless the Buyer agrees that the services of the specialist
are no longer required. During this period, the Buyer's specialist will define
the tasks to be performed by the Seller's specialist with the objective of
verifying the cyclotron 1) is fully operational, 2) performs according to
specifications within the production environment and 3) its automated control
system performs according to specifications. This period of technical assistance
does not relieve the Seller of any of its warranty obligations, including the
requirement that the Seller send any personnel required to the Site to make
repairs should the Supplies be found to not meet specifications during this
period.
26. Entire Agreement
This Agreement, made in two originals, one for each party, contains the entire
agreement between the parties and shall supersede all previous communications
and agreements, whether oral or written, with respect to the subject matter
hereof and the provisions hereof may not be modified or superseded except by an
instrument in writing signed by a duly authorized officer or representative of
each of the parties hereto.
27. Authorization
By virtue of having affixed their respective signatures below, each of the
parties hereto warrants that it has obtained all authorization necessary to
enter into and perform its obligations under this Agreement.
28. Effective Date
This Agreement shall become effective as of the date upon which payment i), as
set forth in Section entitled "Purchase Price of the Supplies", is received by
the Seller.
<PAGE>
29. Disputes
With respect to any controversy arising out of or relating to this Agreement,
such controversy shall be settled by final and binding arbitration in New York,
NY, USA, in accordance with the then-existing rules (the "Rules") of the
American Arbitration Association ("AAA") and judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction thereof;
provided, however, that the law applicable to any controversy and the law by
which this Agreement shall be construed and governed shall be the law of the
State of New York, regardless of its or any jurisdiction's choice of law
principles. In any arbitration, pursuant to this Agreement, the award or
decision shall be rendered by a majority of the members of a Board of
Arbitration consisting of three (3) members, one of whom shall be appointed by
each party and the third of whom shall be the Chairman of the panel and be
appointed by mutual agreement of said two party-appointed arbitrators. In the
event of failure of said two arbitrators to agree upon the appointment of the
third arbitrator within sixty (60) days after the commencement of the
arbitration proceeding, the third arbitrator shall be appointed by the AAA in
accordance with the Rules. In the event that either party shall fail to appoint
an arbitrator within thirty (30) days after the commencement of the arbitration
proceeding, such arbitrator and the third arbitrator shall be appointed by the
AAA in accordance with the Rules. The Rules of Evidence and the Right to
Discovery shall be applicable to both parties.
Work under this Agreement shall continue during the arbitration proceedings and
payments due to the Seller shall not be withheld on account of such proceedings
unless such particular work or payment is the subject matter of the arbitration
in which case this provision shall not apply to such particular work or payment.
The parties agree to equally share the expenses associated with this arbitration
procedure.
30. Governing Laws
This Agreement shall be governed by and construed in all respects in accordance
with the laws of the State of New York, USA.
<PAGE>
31. Notices
a) Any notice given under this Agreement shall be made in writing, shall be
given by first class air mail, telex, telecopier or commercial cable and shall
be addressed to :
In the case of the Seller:
Ion Beam Applications
Chemin du Cyclotron, 3
1348 Louvain-la-Neuve
Belgium
Attn : Mr. Yves Jongen
Fax Number : 32-10-47.58.10
In the case of the Buyer :
Theragenics Corporation
5325, Oakbrook Parkway
Norcross, GA 30093
USA
Attn : Mr. Glenn Dill
Fax Number : 1 (404) 381 84 47
Either party, by written notice to the other, may change the address to which
notices will be directed.
b) Any notice shall be deemed given on the date personally delivered or sent by
telex, telecopier or cable and fifteen (15) days after the date of mailing, if
mailed.
32. Project Coordinator
Upon signing this Agreement, both parties shall designate a representative who
will act as Project Coordinator and official addressee for all communication
resulting from this Agreement, other than any official notice given under the
Section entitled "Notices". All requests for service, transmittals of
information, reports on training activity, and other communication required
under this agreement shall be sent by and directed to the respective Project
Coordinators. Informal conversations occurring person-to-person or by phone,
<PAGE>
requests and information shall be validated by an appropriate written form as
confirmation. Any communication sent to others than those designated as Project
Coordinators, or in a manner not in accordance with the Notices procedure
specified in this Agreement will be considered as informal and non-existent.
33. Assignment
This Agreement shall inure to the benefit of and be binding upon each of the
parties hereto and their respective successors and assignees, but neither the
rights nor the duties of either party hereunder may be assigned, in whole or in
part by either party, without the prior written consent of the other party. Such
consent shall not be unreasonably withheld by either party. Any assignment shall
not relieve the assignee of any of the Agreement obligations of the assignor.
34. Headings
The headings contained within this Agreement are established solely for the
convenience of the two parties and are not intended to and do not limit,
construe or modify any of the terms and conditions included hereof.
35. Severability
If any term or provision of this Agreement is held to be illegal or
unenforceable, then this Agreement, except for such part or parts thereof, shall
continue to be in full force and effect.
In the event of any inconsistency between a provision of the conditions of the
Agreement and the content of an Appendix to this Agreement, and if the parties
cannot agree on the clause to take precedence, the AAA of Section 29 will be
asked to mediate/arbitrate the dispute and the parties agree to abide by the
finding of said association.
36. Non-Waiver
The failure by either party to enforce at any time or for any period of time any
of the provisions hereof shall not be a waiver of such provisions nor of the
right of such party thereafter to enforce each and every such provision.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate by their duly qualified officers or representatives.
THERAGENICS CORPORATION Inc.
Not Required
Christine Jacobs
President
/s/ Bruce Smith /s/ Glenn Dill
Bruce Smith Glenn Dill
Chief Financial Officer Director of Operations
ION BEAM APPLICATIONS, S.A.
/s/ Yves Jongen /s/ Sabine de Voghel
Yves Jongen Sabine de Voghel
President Area Sales Manager
<PAGE>
APPENDIX
CYCLOTRON PARAMETERS
<PAGE>
APPENDIX
<PAGE>
APPENDIX
BUILDING REQUIREMENTS
<PAGE>
APPENDIX
BUILDING COMPLETION SPECIFICATIONS
<PAGE>
APPENDIX
INCLUDED SPARE PARTS
<PAGE>
APPENDIX
ACCEPTANCE CRITERIA
<PAGE>
APPENDIX
ACCEPTANCE TESTS
<PAGE>
APPENDIX
ACCELERATED DELIVERY AND ACCEPTANCE OPTION
The buyer has the option to request the Seller, at any time during this
Agreement to work on an accelerated schedule basis in order to have the Supplies
accepted at an earlier date than the scheduled acceptance date of
___________________ Official requests must be made in writing and addressed to
Yves Jongen, President of IBA.
In the case the Buyer exercises this option, the Buyer will pay the seller and
additional sum of _________________ for each complete day between the actual
date of early acceptance and __________________, including the day of __________
________________.
EXHIBIT 10.23(d)
Purchase Agreement
between
Theragenics Corporation
and
Ion Beam Applications s.a.
dated
December 27, 1996
Confidentialportions of this document have been blanked out and have been filed
separately with the Securities and Exchange Commission.
<PAGE>
Purchase Agreement
between
Theragenics Corporation Inc.
and
Ion Beam Applications S.A.
for
_______________ Cyclotron Number 8
and
Related Target Equipment
<PAGE>
Table of Contents
Purchase Agreement
1. Interpretation............................................................3
2. Subject Matter of Sale....................................................4
3. Purchase Price of the Supplies............................................5
4. Title and Risk of Loss....................................................7
5. Delivery..................................................................7
6. Installation of Supplies..................................................7
7. Preparatory Work..........................................................9
8. Acceptance...............................................................11
9. Transportation and Insurance.............................................13
10. Export Documents, Duties and Foreign Taxes...............................14
11. Customs Duties, Buyer's Country Taxes and Import Permits.................14
12. Warranty As To Title.....................................................14
13. Design and Performance Warranty..........................................15
14. Material and Workmanship Warranty........................................15
15. Logging of Operations....................................................16
16. Training.................................................................16
17. Disclaimer of Liability for Personal Injury..............................16
18. Liability for Consequential Damages......................................17
19. Infringement of Proprietary Rights.......................................17
20. Seller's and Buyer's Proprietary Information.............................19
21. Destruction of Supplies..................................................19
22. Excusable Delay..........................................................20
23. Termination for Insolvency...............................................21
24. Spare Parts..............................................................21
25. Technical Assistance by the Seller.......................................21
26. Entire Agreement.........................................................22
27. Authorization............................................................22
28. Effective Date...........................................................22
29. Disputes.................................................................22
30. Governing Laws...........................................................23
31. Notices..................................................................23
32. Project Coordinator......................................................24
33. Assignment...............................................................25
34. Headings.................................................................25
35. Severability.............................................................25
36. Non-Waiver...............................................................25
Appendices
Cyclotron Parameters
- ------------------------
Building Requirements
Building Completion Specifications
Included Spare Parts
Acceptance Criteria
Acceptance Tests
Accelerated Delivery and Acceptance Option
<PAGE>
Purchase Agreement
AGREEMENT made as of this 27th day of December 1996 by and between ION BEAM
APPLICATIONS, S.A., a corporation organized under the laws of Belgium, having
its principal office at Chemin du Cyclotron 3, 1348 Louvain-la-Neuve, Belgium
(hereinafter called the "Seller", which expression includes its successors and
permitted assignees) and THERAGENICS CORPORATION, having its principal office at
5325 Oakbrook Parkway, Norcross, Georgia 30093, USA (hereinafter called the
"Buyer", which expression includes its successors and permitted assignees).
WITNESSETH :
WHEREAS, the Seller wishes to sell to the Buyer and the Buyer wishes to buy from
the Seller, the Seller's model _____________ cyclotron, related _______
equipment and spare parts therefore, all as more particularly described herein :
and
WHEREAS, the Buyer wishes the Seller to assemble, install, start up, test and
make operational the _______________ cyclotron to be purchased including related
equipment and the Seller is willing to undertake this task : and
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows :
1. Interpretation
In this Agreement, unless the contrary intention appears :
"Acceptance" means the process whereby the Seller demonstrates to the Buyer that
the Supplies provided meet the requirements of the Agreement. This process shall
consist of a series of tests, the "Acceptance Tests" as defined in Appendix
"Acceptance Tests", which demonstrate the Supplies meet the guaranteed
specifications, the Acceptance Criteria.
<PAGE>
"Acceptance Criteria" mean the guaranteed specifications of the Supplies as
defined in Appendix "Acceptance Criteria".
"Acceptance Date" means the date on which the Buyer agrees that based on the
Acceptance Tests, the Supplies have met the Acceptance Criteria . The Supplies
shall be deemed accepted when the Buyer and Seller agree in writing that the
Acceptance Tests have been successfully completed.
"Acceptance Tests" are the tests listed in Appendix "Acceptance Tests".
"Agreement" means this document and includes its Appendices.
"Buyer's Country" means the country where the Site is located.
"Day" means calendar day; "Week" means calendar week; "Month" means calendar
month.
When the last day of any period prescribed for the execution of any assignment
falls on a day which is not a working day in Belgium or in the Buyer's Country,
the assignment may be performed on the first working day following the
aforementioned day.
"Effective Date" has the meaning set forth in Section entitled "Effective Date".
"Excusable Delay" has the meaning set forth in Section entitled "Excusable
Delay".
"Site" means the Buyer's facility in Buford, Georgia, USA.
"Supplies" means all equipment, hardware, software (including installation) and
the associated documentation, support equipment and services to be provided
under the Agreement, as detailed in Appendix "Cyclotron Parameters" and Appendix
"________________________."
<PAGE>
2. Subject Matter of Sale
Subject to the terms and conditions of this Agreement :
a) The Seller shall sell and deliver to the Buyer and the Buyer shall purchase
from the Seller (i) a ________________ model cyclotron, the technical
specifications of which are more fully described in the Appendix "Cyclotron
Parameters" Appendix hereto; (ii)__________________________, the technical
specifications of which are more fully described in the Appendix
"__________________________" hereto; and (iii) a set of spare parts listed in
the Appendix "Included Spare Parts" hereto;
b) The Seller shall also assemble, install, start up, test, make operational and
perform the Acceptance Tests on the Supplies.
c) The Seller shall send one of his specialists to assist in bringing the
cyclotron to full operational capacity after Acceptance of the Supplies by the
Buyer, as described in Section 25.
d) The Buyer and Seller agree that an option for accelerated delivery and
acceptance as described in Appendix "Accelerated Delivery and Acceptance Option"
may be exercised by the Buyer. In case that option is exercised by the Buyer,
the covenants of the "Accelerated Delivery and Acceptance Option" Appendix shall
be applicable to both parties.
3. Purchase Price of the Supplies
a) The aggregate purchase price (hereinafter the "Price") of the Supplies,
including packaging, insurance and transportation of the Supplies to the Site,
the assembly, testing and start up of the Supplies described in the Section
entitled "Subject Matter of Sale" above, shall be ______________________
________________________. This price shall also include the technical assistance
by the Seller as described in Section 25, the Spare Parts as listed in Appendix
"Included Spare Parts" and the Seller's contribution to the applicable USA
customs duty as stated in Section 11 of this Agreement.
b) As a down payment equivalent to ____________ has been made by the Buyer to
the Seller on November 6, 1996, the balance of the Price set forth in subsection
a) shall be payable as follows:
<PAGE>
i) _____________________________________________________________________ to
be paid to the Seller upon execution of this Agreement;
ii) ____________________________________________________________ to be paid
to the Seller on March 1, 1997. This payment shall be guaranteed by an
irrevocable standby letter of credit to be issued in favor of and approved by
the Seller within one month from the Effective Date.
iii) _____________________________________________________________ to be
paid to the Seller on April 1, 1998. This payment shall be guaranteed by an
irrevocable standby letter of credit to be issued in favor of and approved by
the Seller by March 1, 1997.
iv) ___________________________________________________________ to be paid
to the Seller within 15 days from shipment of the Supplies as evidenced by
receipt of the shipping documents and no later than September 1, 1998 if the
shipment is delayed by Buyer's fault. This payment shall be guaranteed by an
irrevocable standby Letter of Credit to be issued in favor of and approved by
the Seller by the date of shipping of the Supplies, to be notified by Seller to
the Buyer at least 30 days in advance.
v) _________________________________________________________ to be paid to
the Seller within 15 days of the Acceptance of the Supplies. This payment shall
be guaranteed by an irrevocable stand-by Letter of Credit, which can only be
exercised during the year following the delivery of the Supplies, and
conditioned only upon successful completion of the Acceptance Tests and
providing further that, in the event the Seller is prevented by the Buyer's
fault, by a delay on the part of the Buyer, or by a regulatory body with
jurisdiction over the Buyer from completing the Acceptance Tests for a period of
sixty (60) days or more, payment thereunder to the Seller shall be made upon
demand of the Seller. This Letter of Credit shall be issued in favor of and
approved by the Seller, such approval not to be unreasonably withheld, by the
date of shipping of the Supplies, to be notified by Seller to Buyer at least
thirty days in advance.
c) All payments by the Buyer to the Seller under this Agreement shall be in
Belgian Francs and, except those specified in paragraph 3. b) above, shall be
made by wire transfer within thirty (30) days from the date of invoice.
<PAGE>
d) All payments by the Buyer to the Seller will be deemed to have been made by
the Buyer on the date on which the Seller has been credited for the proper
amounts. Any payment due to the Seller which is not paid on the due date shall
accrue interest for each started month of delay at an annual rate of one point
above the rate of the "Avance en Compte Courant Hors Plafond de la Banque
Nationale de Belgique" as published in "l'Echo" on the first day of such month.
4. Title and Risk of Loss
Except as indicated below in this paragraph, title to the Supplies shall be
transferred from the Seller to the Buyer when and to the extent payments are
received by the Seller. The Buyer represents and warrants that it shall not
cause or permit to be caused any lien or encumbrance of any kind to be placed
upon the Supplies to an extent greater than its share of ownership in the
Supplies. It is understood that if the Seller is unable to demonstrate the
Supplies meet the Acceptance Criteria within one year of delivery of the
Supplies to the Buyer's Site, clear title to the Supplies transfers to the Buyer
without obligation to pay to the Seller the final payment specified in Section
3.b.v unless the Seller has been prevented from conducting the Acceptance Tests
as described in Section 8, last paragraph.
Risk of loss of any part of the Supplies shall pass from the Seller to the Buyer
upon delivery of such parts to the Site.
5. Delivery
The Seller shall deliver the Supplies to the Buyer at the Site and set the
Supplies in their final location.
6. Installation of Supplies
a) The assembly and installation of the Supplies at the Site and the Acceptance
Tests are planned to be completed by _____________________________________ after
completion of Site preparation by the Buyer at the Seller's reasonable
satisfaction as evidenced by an acceptance document of the Site ("Site
Acceptance Document") signed by the Seller, whichever is later. The Seller
undertakes to make its best efforts to complete the installation and testing
<PAGE>
within this period. During the installation period the Buyer shall permit the
Seller's employees, subcontractors or agents unlimited access to the Site
provided said individuals comply with policies and procedures established for
the Buyer's employees regarding such matters as health and safety issues.
b) With reasonable notice to the Seller, the Buyer and its authorized
representatives shall, during reasonable working hours, be free to inspect the
quality and conditions of the Supplies at the Seller's site during fabrication
and at any time upon arrival of the same at the Site and during the installation
period. The Seller will notify in writing to the Buyer when the major materials
are available for construction of the cyclotron.
c) The Buyer at its sole expense shall provide the Seller with closed premises
on or reasonably near the Site in which the Seller may store employee clothing
and tools and equipment required for the installation. However, the Buyer does
not assume any risk with respect to the loss or theft of any such items while on
the Buyer's premises.
d) The Buyer shall, at its sole expense, provide the Seller with the following
utilities required for installation of the Supplies and Acceptance Tests on the
Supplies: electricity, water, compressed air, dry nitrogen for venting the
vacuum chamber, hydrogen gas for the ion source, as described in Appendix
"Building Requirements". Access to telephone and fax equipment connected to the
international network is required and the Seller will pay the charges associated
with the use of this line. The Buyer shall provide all the necessary radiation
measuring equipment required for the operation and the Acceptance Tests on the
Supplies.
e) Within fifteen (15) days from the date of delivery of the cyclotron at the
Site, the Buyer shall permit the Seller to produce beams at full energy and full
intensity in the cyclotron vault.
f) The Price reflects labor provided by the Seller. Any additional labor or
costs required by local labor codes, etc. will be the responsibility of the
Buyer.
g) The Supplies are manufactured according to Belgian technical standards. If
the Buyer requires compliance of the Supplies with specific technical standards,
these technical standards must be notified by the Buyer to the Seller within
<PAGE>
seven weeks of the Effective Date. All additional costs related to making the
Supplies conform to those norms or specific standards shall be charged to the
Buyer.
7. Preparatory Work
a) The Buyer shall have the sole responsibility, at its sole expense, for the
work required to prepare the Site for installation of the Supplies. The building
to house the Supplies and the systems contained therein shall comply with the
specifications detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications". As soon as possible after completion, and,
at the latest, on _________________, the Seller shall prepare for the Buyer a
proposed layout and prepare such other plans and memoranda as are necessary to
transmit data to the Buyer's architects and engineers. By _______________, the
Buyer shall furnish to the Seller drawings and plans for the Site including the
building and systems detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications" in sufficient detail to enable the Seller
to judge whether the Site will be satisfactory for the Supplies and will meet
the specifications detailed in Appendix "Building Requirements" and Appendix
"Building Completion Specifications". Within four (4) weeks of the receipt of
this initial set of architectural and engineering drawings and plans, the Seller
shall provide the Buyer with comments thereon and detailed information as to
such modifications therein as the Seller deems necessary including such drawings
and technical documents as may be required by the Buyer to complete the
installation of the cables, cooling water and compressed air systems. However,
the time devoted to preparation by personnel of Seller of additional layouts or
drawings and/or reviews of revised sets of architectural and engineering
drawings will be invoiced at Seller's regular rates. No additional charge will
be made for telephone consultations. Travel and related expenses incurred as a
result of attendance by personnel of the Seller required at meeting outside of
Belgium with the Buyer's architects, engineers, consultants and/or
representatives will be reimbursed by the Buyer. With respect to the foregoing,
the responsibility for determining whether conflict exists between local
building codes and/or other laws or government regulations and the content of
drawings, data sheets, memoranda or other forms of communication submitted by
the Seller is solely the responsibility of the Buyer, his architects, engineers
and/or consultants. The definitive drawings and plans for the Site, made in
accordance with the Seller's comments and recommendations, will then be
furnished by the Buyer to the Seller by ________________. In addition, unless
otherwise specified, the Buyer shall have the sole responsibility for the design
and construction of the radiation monitoring systems, of the shielding required
<PAGE>
to prevent radiation leakage and of the systems required to handle the disposal
of radioactive waste.
Any delay on the part of the Seller in meeting its obligations related to this
Section by more than ten (10) days will add a number of days to the period
provided for the performance by the Buyer equal to the number of days of delay
by the Seller.
b) Before commencing installation, the Seller shall inspect the Site and the
Buyer shall submit to the Seller the Site Acceptance Document to be signed by
the Seller confirming that the preparatory work meets all the criteria set forth
in the Section entitled "Installation of Supplies", paragraph c) and d) and in
Appendix "Building Requirements" and Appendix "Building Completion
Specifications". This acceptance document only indicates the Seller's
willingness to begin the installation of the Supplies in the Buyer's building.
It does not discharge the Buyer and his subcontractors of any of their
responsibilities regarding the building. The Buyer shall complete the
preparatory work at the Site by _______________. If the preparatory work as
regards the cyclotron vault is substantially completed before that date, the
Buyer shall accept delivery and/or installation of the Supplies as soon as
possible under the applicable laws and regulations. In the event that such work
has not been completed before that date, or if for any other reason the Buyer is
unable to accept delivery of the Supplies or commencement of the installation
thereof by that date, the Buyer shall immediately give the Seller written notice
of this fact and the anticipated new date for completion of the preparatory
work. In any case, the Seller may ship the Supplies to the Buyer at any time and
the Buyer shall store them in one of its warehouses until the date the
preparatory work is completed.
c) One week before commencing installation and setting of the cyclotron in its
vault, the Buyer shall allow the Seller full access to the cyclotron vault,
power supplies and control room and all other rooms related to the installation
of the Supplies to allow for the measurement of line-up marks to be performed.
d) The Buyer's completion, to the reasonable satisfaction of the Seller, of its
undertakings in this section and elsewhere in this Agreement relating to
preparation of the Site and the continuous furnishing of necessary services and
permits set forth in the Section entitled "Installation of Supplies", paragraph
c), d) and e) and in Section entitled "Custom Duties, Buyer's Country Taxes and
Import Permits" and the requirements detailed in Appendix "Building
<PAGE>
Requirements" and Appendix "Building Completion Specifications" shall be a
condition precedent to the Seller's commitment to perform within the time period
specified under the Section entitled "Installation of Supplies" hereof, and any
delay or interruption by the Buyer in meeting its obligations under this
Agreement in a timely fashion shall extend the Seller's time to perform under
this Agreement including but not limited to Seller's time to exercise and
perform under the option for accelerated delivery and acceptance outlined in
Appendix "Accelerated Delivery and Acceptance Option", by a period equal to the
period of the Buyer's delay or interruption plus, if shipment and/or delivery is
delayed by Buyer's fault or at Buyer's request, an additional period not to
exceed four weeks to reschedule shipment and/or delivery of the Supplies and/or
personnel as may be required.
In the event of any such delay or interruption, the Buyer will reimburse the
Seller for any reasonable costs incurred as a direct result of such delay or
interruption. Additionally, if such postponement or interruption delays the
Buyer's obligation to make any of the payments set forth in Section entitled
"Purchase Price of the Supplies", paragraph b) hereof, interest will be computed
for each started month of delay at an annual rate one point above the rate of
the "Avance en Compte Courant Hors Plafond de la Banque Nationale de Belgique"
as published in "l'Echo" on the first day of such month.
If all the conditions necessary for the Seller to sign the Site Acceptance
Document referred to in the above Section have not been met at the time of
delivery of the Supplies, the Seller will nonetheless make its best efforts to
start the installation of the Supplies as soon as reasonably possible and the
Buyer will give the Seller any reasonable support to allow the Seller to do so.
However, beginning of installation of the Supplies in the building, under such
conditions, will under no circumstances be considered as implicit acceptance of
the Site by the Seller.
8. Acceptance
On the date set by the Seller for the conduct of the Acceptance Tests, and in
the presence of the Buyer's representatives, the Seller shall begin to conduct
the agreed-upon Acceptance Tests.
Not more than twenty four (24) hours following the completion of such tests, the
Buyer shall either accept the Supplies as conforming to the requirements of the
<PAGE>
Agreement by issuing an acceptance certificate "Acceptance Certificate"
acknowledging that decision, or advise the Seller in writing of the extent to
which the Supplies do not meet the requirements of the Agreement.
The Buyer shall not withhold the issue of the Acceptance Certificate on account
of minor omissions or defects in the Supplies which do not substantially affect
their use but may designate in the Acceptance Certificate such minors omissions
or defects. The Seller shall promptly make good these omissions or defects.
If the Buyer does not give notice within the period stipulated above, or begins
using the Supplies for its own use, such tests shall be deemed satisfactorily
completed, the Acceptance Certificate shall be deemed issued on that date and
the related acceptance payment shall be paid to the Seller within 15 days from
that date.
If the Buyer gives the Seller notice that such tests have not been
satisfactorily completed, the Seller shall make such adjustments as are
necessary and repeat the Acceptance Tests until the Buyer deems them
satisfactory pursuant to the terms set out above.
Until _________________ the Seller shall have unimpeded access to the Supplies
to complete the Acceptance Tests. If the Seller is unable to successfully
complete the Acceptance Tests by __________________ the Buyer shall be free to
begin use of the Supplies forty five (45) days later. Should the Supplies be put
into use under this condition, it is understood the Buyer and Seller will make a
good faith effort to facilitate the completion of the Acceptance Tests, but it
is further understood that the Buyer's production of Pd-103 with the machine
takes precedence. The Buyer agrees to allow the Seller three (3) prescheduled
days of unimpeded access to the Supplies per month during the period between
____________________ until the period for acceptance has expired as specified in
Section 4 "Title and Risk of Loss".
If a dispute arises between the Buyer and the Seller concerning whether the
Acceptance Tests have been successfully completed or concerning the issuance of
the Acceptance Certificate, the Buyer and the Seller will jointly agree to
obtain the services of the American Arbitration Association ("AAA") to arbitrate
the dispute, as described in Section 29 hereafter. Both parties will abide by
AAA's recommendations.
<PAGE>
If the Seller is prevented either by the Buyer or by any regulatory body that
has juridiction over the Buyer from conducting the Acceptance Tests for a period
of sixty (60) days, the Buyer shall be deemed to have accepted the Supplies
sixty (60) days after the Seller was first prevented from conducting the
Acceptance Tests. If the Seller is prevented by force majeure or events similar
to those enumerated under Section "Excusable Delay" from conducting the
Acceptance Tests, the Buyer shall pay 50% of the Acceptance payment as defined
in Section 3 b) v). In either case the Seller shall complete the Acceptance
Tests within the period remaining at the time the impediment began.
9. Transportation and Insurance
Seller shall at its own expense :
i) Obtain appropriate property and liability insurance covering loss or damage
to the Supplies and injuries to individuals during the construction of the
Supplies and during the transportation of the Supplies from the Seller's plant
to the Site.
ii) Pay all freight and other transportation charges associated with delivery of
the Supplies to the Site, and have a representative present during the transfer
of the Supplies from the port of entry to the Site.
iii) Maintain worker's compensation insurance during the assembly, installation
and testing of the Supplies, as required by applicable law, covering its
employees and, upon request from Buyer, provide a certificate of insurance
evidencing such coverage.
Buyer shall at its own expense:
i) Obtain appropriate property and liability insurance covering loss or damage
to the Supplies between delivery of the Supplies at the Site and the time when
the Seller has been paid in full for the amounts under Section entitled
"Purchase Price of the Supplies". In such insurance policies, both the Buyer and
the Seller shall be named as insured parties.
ii) Arrange for the destruction, pick-up and/or clearing away of all waste,
including the Supplies packaging except for the disposal of radioactive waste
which is covered in section 12 of appendix "Building Completion Specifications".
<PAGE>
The Buyer and the Seller shall each take out and maintain at their own expense
during the period from receipt of the Supplies at the Site through Acceptance,
insurance to provide coverage for both itself and the other party for an amount
of at least one million US dollars (US$ 1,000,000) per accident against any
direct and indirect liability for bodily injury and death to individuals and all
direct or indirect costs, losses and damages to the property of the other
arising out of each other's acts or omissions in unloading, assembling,
installing and testing of the Supplies.
10. Export Documents, Duties and Foreign Taxes
The Seller will be responsible for obtaining all necessary export permits or
licences relating to the Supplies and the Buyer will offer such reasonable
assistance in this regard as the Seller may request. The Seller shall pay any
and all export duties and all other taxes required to be paid outside of the
Buyer's Country in connection with the sale of the Supplies.
11. Customs Duties, Buyer's Country Taxes and Import Permits
The Buyer shall pay all sales, use, gross receipts, excise and other taxes
assessed or levied by the Buyer's Country or any other taxing jurisdiction,
state or local, within the Buyer's Country, against the Buyer (including any
fines, penalties and interests thereof) as a result of or in connection with the
sale, use, delivery, storage or transfer of the Supplies.
The Seller agrees to equally share with the Buyer the cost of the import customs
duties levied by the customs authorities of the USA at the entry of the Supplies
into the USA, up to a maximum cost for the Seller equal to two percent (2%) of
the price of the Supplies.
The Buyer shall be responsible for obtaining all necessary permits or licences
with respect to the importation of the Supplies in the Buyer's Country and the
installation and use of the Supplies at the Site, and the Seller will offer the
Buyer such reasonable assistance in this regard as the Buyer may request.
12. Warranty As To Title
The Seller warrants good title to the Supplies.
<PAGE>
13. Design and Performance Warranty
The Seller hereby warrants that the Supplies will perform in accordance with
applicable design and performance specifications set forth in Appendix
"Cyclotron Parameters" and in Appendix __________________________ for a period
of one (1) year after the Acceptance Date. The Seller shall resolve any design
flaws appearing during the first year following the Acceptance of the Supplies.
14. Material and Workmanship Warranty
The Seller hereby warrants that the Supplies will be free from defects in
material and workmanship for a period of one (1) year from the date of
acceptance of the Supplies by the Buyer or fifteen (15) months from the date the
Supplies are put in their final location in the Buyer's vault if the Acceptance
Date is delayed at the Buyer's request or through the Buyer's fault, whichever
period is shorter: provided, however, that this warranty shall not apply to ion
source stamped cathodes and chimneys, puller electrodes, air filters, targets,
oil for the vacuum pumps, demineralizing column, gas bottles (H2 for the ion
source, N2 for venting,...), and other consumables; that the Seller makes no
warranty with respect to failures notified after the warranty period or failures
during operation without logging or failures due to alteration, misapplications,
abuse, abnormal conditions of temperature, dirt, corrosive matter, maintenance
not carried out according to the Seller's instructions, lack of trained
personnel for maintenance, operation above rated capacities either intentional
or otherwise, or in an otherwise improper manner or physical damage caused by
persons other than employees or agents of the Seller; that the Seller's sole
liability under valid warranty regarding claims for defects in material and
workmanship is limited, at the option of the Seller, to repair or replacement of
the defective parts; that with respect to components purchased by the Seller for
incorporation into the Supplies essentially without modification, the Seller
makes no warranties of its own but assigns to the Buyer the full warranty
extended to the Seller as part of the original purchase of the component.
If, due to a fault of the Seller, the Supplies have not passed the Acceptance
Tests by ______________, the Seller's warranty shall start and be in effect
until ________________.
<PAGE>
The Seller shall bear the cost and risk of loss during transport of (i) any
defective part or components being returned to the Seller's factory with the
Seller's agreement and (ii) any repaired or replacement item being returned to
the Buyer. Products or parts returned without the agreement of the Seller shall
be at the Buyer's sole risk and expense. The Seller shall bear any personnel
costs incurred in connection with the fulfillment of the Seller's obligations
under this warranty.
The foregoing warranties are exclusive and are given and accepted in lieu of all
other warranties of quality written or oral, express or implied, and all other
warranties are hereby disclaimed.
15. Logging of Operations
The Buyer shall keep a logbook of operation for the Supplies. In this logbook
shall be documented all sessions of operation of the Supplies as well as any
problems encountered during operation of the Supplies. If the Buyer requests
assistance from the Seller in resolving a problem with the Supplies and the
information in the log is relevant to this resolution, the Buyer may at its sole
discretion make the log available to the Seller . If the Buyer presents a claim
against the warranty provided by the Seller, a copy of the log must be made
available to the Seller. It is understood by the Seller that the information
contained in the Log may be of a proprietary nature and is therefore covered by
the confidentiality agreement between the parties.
16. Training
The Seller agrees to provide up to two days of training in __________ operation,
preventative maintenance and repair to the Buyers' personnel at the Site during
or immediately after the installation period, with the exact dates and times to
be mutually agreed by the Buyer and Seller. The cost of such training shall be
the responsibility of the Seller.
17. Disclaimer of Liability for Personal Injury
The Seller and the Buyer hereby acknowledge that the products, as offered, are
highly sophisticated devices which should be operated only by trained personnel;
that it is the Buyer's sole obligation to retain and train such personnel or
<PAGE>
have it trained, possibly by the Seller; that, where necessary, the Supplies
contain interlocking devices designed to prevent their operation in a manner
which would cause injury to such personnel, but as in the case with all
equipment utilizing high voltages, such personnel should assume that the
interlocking devices are inoperative and should take appropriate measures to
ensure that the voltage has been turned off prior to begin working where high
voltage is present during the start up and/or operation of the Supplies; that it
is inherent in the operation of the Supplies that portions thereof may emit
dangerous ionizing radiation and may become activated during their normal
operation; that it is the Buyer's sole obligation to determine the level of
radioactivity, to ensure that a system exists for determining and recording the
levels of radioactivity and to ensure that no personnel or other persons are
exposed to radiation in excess of that permitted by relevant law or regulations.
Based upon the foregoing acknowledgments, it is, therefore, agreed that the
Seller shall not incur any liability for personal injury to any party arising
out of the operations and maintenance of the Supplies unless such liability is
solely caused by a gross negligence on the part of the Seller in the design,
implementation or documentation including but not limited to maintenance and
operation manuals for the Supplies. In order to give effect to these limitations
of the Seller's liability, and as an express condition of sale, the Buyer hereby
agrees to indemnify and hold the Seller harmless from any and all claims, but
limited by the exclusion of negligent acts or omissions as outlined in the
preceding sentence, damages and liability, including reasonable attorney's fees,
arising out of a claim against the Seller for personal injuries of any party
occasioned by the operation and/or maintenance of such Supplies.
18. Liability for Consequential Damages
The Seller's liability to the Buyer for damages howsoever caused shall under no
circumstances whatsoever (including the decision of an arbitration panel or
court of law) exceed the payments actually received by the Seller for the
Supplies and the Seller shall under no circumstances have any liability for
special, incidental, indirect or consequential damages, including without
limitation liability for loss of use, loss of profits, damage or injury to other
property or persons.
<PAGE>
19. Infringement of Proprietary Rights
a) The Seller shall indemnify and hold harmless the Buyer against any and all
losses, liabilities and expenses, by reason of any third party claim, suit,
action or proceeding for alleged infringement of any copyright, trademark or
patent of the Buyer's Country or alleged conversion of any trade secret
resulting from or arising in connection with the manufacture, installation, use
or sale of the Supplies or any part thereof including any and all judgments or
decrees which may be rendered against the Buyer (and reasonable attorney's fees
if Seller should fail to defend as provided in subsection b) hereof, and
settlements made arising out of any such claim, suit, action or proceeding
provided, however that this indemnity shall not extend to any infringement
resulting from a breach by the Buyer of this Agreement or of the Seller's
instructions for the operation of the Supplies. The Seller shall however not be
liable for any infringement or claim based upon the use of the Supplies or any
portion of the documentation in combination with other equipment or technology
not supplied by the Seller or resulting from any modification made by the Buyer,
without approval or instruction by Seller.
b) The Seller shall defend at its own expense all suits, actions or proceedings
brought against the Buyer with respect to the matters listed in subsection a)
above. The Buyer shall have the right at its option and at its sole expense, to
participate in the defense of any such claim, suit, action or proceeding,
without relieving the Seller of any obligation hereunder. The Buyer shall
promptly notify the Seller in writing after any such claim is made or suit is
brought and shall cooperate with Seller in the defense thereof as requested by
the Seller, and the Seller agrees to reimburse the Buyer for its reasonable
out-of-pocket expenses incurred at Seller's specific request in connection with
such cooperation. The Buyer shall immediately notify the Seller of any
infringement claim made or threatened and shall refrain from any admission of
liability, and will not negotiate or enter into any settlement without the
Seller's prior consent.
c) If, however, as a consequence of a final determination of any suit for
infringement or any court decision involving any injunction resulting from or
arising in connection with the manufacture or sale of the Supplies or any part
thereof furnished or employed by the Seller hereunder, the Buyer is enjoined or
limited in any material manner in the use of said Supplies or part, Seller
shall, at its option and at its own expense either i) procure for the Buyer the
right to continue use of said Supplies or part, ii) so modify the Supplies or
<PAGE>
part so as to render them non-infringing without any significant effect to use
thereof, or iii) replace the Supplies or part with an equivalent non-infringing
product.
20. Seller's and Buyer's Proprietary Information
Upon completion of the Acceptance Tests, the Seller shall furnish to the Buyer
free of charge information, manuals and drawings in English and with metric
units of measure relating to the Supplies and instructions to the Buyer in
sufficient detail to enable the Buyer and its employees to operate, calibrate,
maintain and repair the Supplies and all parts thereof. A definitive version of
the documentation, including the modifications that are specific to the Buyer's
configuration and that are made during the final stages of installation, will be
provided six (6) months after the completion of the Acceptances Tests. Such
information, manuals, drawings and instructions and the written materials
furnished by the Seller to the Buyer under the Section entitled "Preparatory
Work" hereof shall remain the property of the Seller and the Buyer shall have a
royalty-free license to use the same in connection with the operation,
calibration, maintenance and repair of the Supplies. The Buyer shall not use any
of the proprietary information supplied by the Seller for any other purpose than
the operation, calibration, maintenance and repair of the Supplies and the Buyer
shall not register, apply for registration or attempt to acquire any other legal
protection for the said proprietary information in its own name, or any other
name, or take any action which may affect the Seller's rights, title and
interest in and to the technology in any country, without obtaining the prior
consent of the Seller. The Buyer shall treat such information and materials in
the same manner as it treats its own proprietary information and will use
similar means to protect it from unauthorized disclosure. The same Buyer
covenants and agrees that the contents of such written information or materials
shall not be divulged to any other person, firm or corporation, except as
allowed above.
The Seller agrees that all information transmitted from Buyer to Seller under
this contract including but not limited to, information relating to research,
development, manufacturing, testing, accounting and marketing will be considered
confidential information. This confidential information will be held in
confidence and not disclosed to third parties by the Seller. This confidential
information shall be held in confidence by the Seller using the same degree of
care as the Seller uses in protecting its own confidential information. The
Seller shall only use such confidential information for the purpose of meeting
its obligations under this Agreement.
<PAGE>
21. Destruction of Supplies
In the event that prior to the delivery of the Supplies, the Supplies are lost,
destroyed or damaged to such an extent that they cannot be repaired and
delivered in accordance with the delivery schedule set forth in the Section
entitled "Installation of Supplies", provided the event is not a willful act of
the Seller, the time reasonably required by the Seller to furnish a replacement
for the Supplies or to accomplish such repairs shall be deemed an Excusable
Delay under the Section entitled "Excusable Delay" and the Seller shall not be
deemed to be in default or to have breached its duties hereunder.
22. Excusable Delay
Notwithstanding anything to the contrary herein contained, if the performance of
this Agreement by any party or the obligation of any party hereunder is
prevented, restricted or interfered with by reason of : i) fire, explosion,
strike, lockout, labor dispute, casualty or accident, epidemic, cyclone,
drought, flood or ii) war, revolution, riot, civil commotion, acts of public
enemies, blockage or embargo, or iii) any law or proclamation, regulation,
ordinance, demand or requirement of any applicable government or any subdivision
thereof or representative of any such government, or iv) any other acts
whatsoever, whether similar or dissimilar to those enumerated, beyond the
reasonable control of a party hereto, then, and in that event, the party so
affected shall promptly notify the other party of all reasonable resulting
difficulties. Upon such notice, the disabled party shall, for the duration of
its disability (referred to as "Excusable Delay" in this Agreement), be excused
from the performance of such of its obligations as are prevented, restricted, or
interfered with by reason of the occurrence of any of the events above
enumerated and such party shall not be deemed to be in default under this
Agreement nor be subject to any liability or damage. The time period during
which any party is to perform under this Agreement shall be extended by the
period of any Excusable Delay. Excusable Delay under the same terms occurring in
respect to the Seller's sub-contractors shall be deemed to be Excusable Delay
occurring to the Seller.
If the Seller is prevented from proceeding according to any of the schedules set
out in this Agreement by the Buyer's fault, by a delay on the part of the Buyer,
<PAGE>
or by a regulatory body with jurisdiction over the Buyer's site, or if the Buyer
delays a payment or the issuance of a Letter of Credit pursuant to Section 3 by
more than fifteen (15) days past the due date, then all the dates contained in
this Agreement for completion by the Seller of its obligations and rights,
including but not limited to the right to exercise the accelerated delivery and
acceptance option, shall be postponed by an additional period equal to the
delay.
23. Termination for Insolvency
In the event that either the Buyer or the Seller :
a) makes a general assignment for the benefit of creditors or becomes insolvent;
b) files an insolvency petition in bankruptcy;
c) petitions for or acquiesces in the appointment of any receiver, trustee or
similar officer to liquidate or conserve its business or any substantial part of
its assets ;
d) commences, under the laws of any jurisdiction, any proceeding involving its
insolvency, bankruptcy, reorganization, adjustment of debt, dissolution,
liquidation or any other similar proceeding for the release of financially
distressed debtors ; or
e) becomes a party to any proceeding or action of the type described above in c)
or d) and such proceeding or action remains undismissed or unstayed for a period
of more than sixty (60) days,
then the other party may, by written notice, terminate this Agreement.
24. Spare Parts
The Seller agrees to make available to the Buyer, as the Buyer may from time to
time require, ____________________, spare parts and components to the Supplies,
and the Seller agrees to exert reasonable efforts to meet the Buyer's delivery
requirements for said parts and components or acceptable substitutes. It is
understood that the parties shall negotiate in good faith reasonable and
mutually agreeable prices for said spare parts and components.
<PAGE>
25. Technical Assistance by the Seller
Immediately following the successful completion of the Acceptance Tests the
Seller shall send one of its specialists to assist the Buyer in bringing the
cyclotron to full operational capacity. The specialist shall be the project
coordinator or, if he is not available, someone of equal or better technical
expertise, this other person to be approved by the Buyer, such approval not to
be unreasonably withheld. The Seller's specialist will remain at the site for a
period of 28 days unless the Buyer agrees that the services of the specialist
are no longer required. During this period, the Buyer's specialist will define
the tasks to be performed by the Seller's specialist with the objective of
verifying the cyclotron 1) is fully operational, 2) performs according to
specifications within the production environment and 3) its automated control
system performs according to specifications. This period of technical assistance
does not relieve the Seller of any of its warranty obligations, including the
requirement that the Seller send any personnel required to the Site to make
repairs should the Supplies be found to not meet specifications during this
period.
26. Entire Agreement
This Agreement, made in two originals, one for each party, contains the entire
agreement between the parties and shall supersede all previous communications
and agreements, whether oral or written, with respect to the subject matter
hereof and the provisions hereof may not be modified or superseded except by an
instrument in writing signed by a duly authorized officer or representative of
each of the parties hereto.
27. Authorization
By virtue of having affixed their respective signatures below, each of the
parties hereto warrants that it has obtained all authorization necessary to
enter into and perform its obligations under this Agreement.
28. Effective Date
This Agreement shall become effective as of the date upon which payment i), as
set forth in Section entitled "Purchase Price of the Supplies", is received by
the Seller.
<PAGE>
29. Disputes
With respect to any controversy arising out of or relating to this Agreement,
such controversy shall be settled by final and binding arbitration in New York,
NY, USA, in accordance with the then-existing rules (the "Rules") of the
American Arbitration Association ("AAA") and judgment upon the award rendered by
the arbitrators may be entered in any court having jurisdiction thereof;
provided, however, that the law applicable to any controversy and the law by
which this Agreement shall be construed and governed shall be the law of the
State of New York, regardless of its or any jurisdiction's choice of law
principles. In any arbitration, pursuant to this Agreement, the award or
decision shall be rendered by a majority of the members of a Board of
Arbitration consisting of three (3) members, one of whom shall be appointed by
each party and the third of whom shall be the Chairman of the panel and be
appointed by mutual agreement of said two party-appointed arbitrators. In the
event of failure of said two arbitrators to agree upon the appointment of the
third arbitrator within sixty (60) days after the commencement of the
arbitration proceeding, the third arbitrator shall be appointed by the AAA in
accordance with the Rules. In the event that either party shall fail to appoint
an arbitrator within thirty (30) days after the commencement of the arbitration
proceeding, such arbitrator and the third arbitrator shall be appointed by the
AAA in accordance with the Rules. The Rules of Evidence and the Right to
Discovery shall be applicable to both parties.
Work under this Agreement shall continue during the arbitration proceedings and
payments due to the Seller shall not be withheld on account of such proceedings
unless such particular work or payment is the subject matter of the arbitration
in which case this provision shall not apply to such particular work or payment.
The parties agree to equally share the expenses associated with this arbitration
procedure.
30. Governing Laws
This Agreement shall be governed by and construed in all respects in accordance
with the laws of the State of New York, USA.
<PAGE>
31. Notices
a) Any notice given under this Agreement shall be made in writing, shall be
given by first class air mail, telex, telecopier or commercial cable and shall
be addressed to :
In the case of the Seller:
Ion Beam Applications
Chemin du Cyclotron, 3
1348 Louvain-la-Neuve
Belgium
Attn : Mr. Yves Jongen
Fax Number : 32-10-47.58.10
In the case of the Buyer :
Theragenics Corporation
5325, Oakbrook Parkway
Norcross, GA 30093
USA
Attn : Mr. Glenn Dill
Fax Number : 1 (404) 381 84 47
Either party, by written notice to the other, may change the address to which
notices will be directed.
b) Any notice shall be deemed given on the date personally delivered or sent by
telex, telecopier or cable and fifteen (15) days after the date of mailing, if
mailed.
32. Project Coordinator
Upon signing this Agreement, both parties shall designate a representative who
will act as Project Coordinator and official addressee for all communication
resulting from this Agreement, other than any official notice given under the
Section entitled "Notices". All requests for service, transmittals of
information, reports on training activity, and other communication required
under this agreement shall be sent by and directed to the respective Project
Coordinators. Informal conversations occurring person-to-person or by phone,
<PAGE>
requests and information shall be validated by an appropriate written form as
confirmation. Any communication sent to others than those designated as Project
Coordinators, or in a manner not in accordance with the Notices procedure
specified in this Agreement will be considered as informal and non-existent.
33. Assignment
This Agreement shall inure to the benefit of and be binding upon each of the
parties hereto and their respective successors and assignees, but neither the
rights nor the duties of either party hereunder may be assigned, in whole or in
part by either party, without the prior written consent of the other party. Such
consent shall not be unreasonably withheld by either party. Any assignment shall
not relieve the assignee of any of the Agreement obligations of the assignor.
34. Headings
The headings contained within this Agreement are established solely for the
convenience of the two parties and are not intended to and do not limit,
construe or modify any of the terms and conditions included hereof.
35. Severability
If any term or provision of this Agreement is held to be illegal or
unenforceable, then this Agreement, except for such part or parts thereof, shall
continue to be in full force and effect.
In the event of any inconsistency between a provision of the conditions of the
Agreement and the content of an Appendix to this Agreement, and if the parties
cannot agree on the clause to take precedence, the AAA of Section 29 will be
asked to mediate/arbitrate the dispute and the parties agree to abide by the
finding of said association.
36. Non-Waiver
The failure by either party to enforce at any time or for any period of time any
of the provisions hereof shall not be a waiver of such provisions nor of the
right of such party thereafter to enforce each and every such provision.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate by their duly qualified officers or representatives.
THERAGENICS CORPORATION Inc.
Not Required
Christine Jacobs
President
/s/ Bruce Smith /s/ Glenn Dill
Bruce Smith Glenn Dill
Chief Financial Officer Director of Operations
ION BEAM APPLICATIONS, S.A.
/s/ Yves Jongen /s/ Sabine de Voghel
Yves Jongen Sabine de Voghel
President Area Sales Manager
<PAGE>
APPENDIX
CYCLOTRON PARAMETERS
<PAGE>
APPENDIX
<PAGE>
APPENDIX
BUILDING REQUIREMENTS
<PAGE>
APPENDIX
BUILDING COMPLETION SPECIFICATIONS
<PAGE>
APPENDIX
INCLUDED SPARE PARTS
<PAGE>
APPENDIX
ACCEPTANCE CRITERIA
<PAGE>
APPENDIX
ACCEPTANCE TESTS
<PAGE>
APPENDIX
ACCELERATED DELIVERY AND ACCEPTANCE OPTION
The Buyer has the option to request to the Seller, at any time during this
Agreement, to work on an accelerated schedule basis in order to have the
Supplies accepted at an earlier date than the scheduled acceptance date
of________________. Official request must be made in writing and addressed to
Yves Jongen, President of IBA.
In the case the Buyer exercises this option, the Buyer will pay the Seller an
additional sum of _____________ for each complete day between the actual date of
early acceptance and ____________________, including the day of _____________.
EXHIBIT 10.24
SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
BY AND BETWEEN
THERAGENICS CORPORATION
AND
NATIONSBANK, N.A. (SOUTH)
Dated as of December 9, 1996
<PAGE>
SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
by and between
THERAGENICS CORPORATION
and
NATIONSBANK, N.A. (SOUTH)
dated as of
December 9, 1996
<PAGE>
TABLE OF CONTENTS
SECTION 1. GENERAL DEFINITIONS............................................. 2
1.1.Defined Terms................................................ 2
1.2.Accounting Terms............................................. 10
1.3.Other Terms.................................................. 10
1.4.Certain Matters of Construction.............................. 10
SECTION 2. REVOLVING CREDIT FACILITY....................................... 11
2.1.Revolving Credit Loans....................................... 11
2.2.Manner of Borrowing Revolving Credit Loans................... 12
2.3.Loan Account................................................. 12
2.4.Interest..................................................... 13
SECTION 3. LETTERS OF CREDIT............................................... 16
3.1.Amounts, Terms and Issuance of Letters of Credit............. 16
3.2.Fees......................................................... 16
3.3.Reimbursement Obligations Absolute........................... 16
SECTION 4. TERMINATION; PAYMENTS; FEES AND COSTS............................ 18
4.1.Termination.................................................. 18
4.2.Costs, Fees and Expenses..................................... 18
4.3.Application of Payments and Collections...................... 18
4.4.Statements of Account........................................ 19
4.5.All Loans and Obligations to Constitute One Obligation....... 19
4.6.Capital Adequacy............................................. 19
SECTION 5. COLLATERAL: GENERAL TERMS........................................ 20
5.1.Security Interest in Collateral.............................. 20
5.2.Representations, Warranties and Covenants-Collateral......... 20
5.3.Financing Statements......................................... 21
5.4.Cash Collateral Account...................................... 21
SECTION 6. REPRESENTATIONS AND WARRANTIES.................................. 21
6.1.General Representations and Warranties....................... 21
6.2.Reaffirmation................................................ 24
6.3.Survival of Representations and Warranties................... 24
SECTION 7. COVENANTS AND CONTINUING AGREEMENTS............................. 25
7.1.Affirmative Covenants........................................ 25
7.2.Negative Covenants........................................... 28
SECTION 8. CONDITIONS PRECEDENT............................................ 32
8.1.Documentation................................................ 32
8.2.Other Conditions............................................. 32
SECTION 9. EVENTS OF DEFAULT: RIGHTS AND REMEDIES ON DEFAULT................ 33
9.1. Events of Default........................................... 33
9.2. Acceleration of the Obligations............................. 35
9.3. Remedies.................................................... 35
9.4. Remedies Cumulative: No Waiver.............................. 36
<PAGE>
SECTION 10. MISCELLANEOUS.................................................. 37
10.1. Power of Attorney.......................................... 37
10.2. Indemnity.................................................. 37
10.3. Modification of Agreement: Sale of Interest................ 37
10.4. Increased Costs............................................ 38
10.5. Reimbursement of Expenses.................................. 39
10.6. Indulgences Not Waivers.................................... 39
10.7. Severability............................................... 39
10.8. Successors and Assigns..................................... 40
10.9. Cumulative Effect; Conflict of Terms....................... 40
10.10.Execution in Counterparts.................................. 40
10.11.Notices.................................................... 40
10.12.Lender's Consent........................................... 41
10.13.Demand Obligations......................................... 41
10.14.Time of Essence............................................ 41
10.15.Entire Agreement........................................... 41
10.16.Set-Off.................................................... 41
10.17.Governing Law: Consent to Forum............................ 41
10.18.Waivers by Borrower........................................ 42
<PAGE>
SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS AGREEMENT is made as of this 9th day of December, 1996, by and
between NATIONSBANK, N.A. (SOUTH), a Georgia banking corporation, successor by
merger to Bank South ("Lender"), and THERAGENICS CORPORATION ("Borrower"), a
Delaware corporation having its chief executive office and principal place of
business at 5325 Oakbrook Parkway, Norcross, Gwinnett County, Georgia 30093.
Statement of Facts
Lender and Borrower are parties to (i) that certain Loan and Security
Agreement dated as of June 29, 1992, pursuant to which Lender provided to
Borrower a receivables credit facility in the amount of $500,000 and (ii) that
certain Loan and Security Agreement dated as of September 14, 1994, pursuant to
which Lender provided to Borrower a term loan facility in the amount of
$2,100,000 for, inter alia, the purchase of equipment and the construction of a
facility located at 4875 Newton Terrace, Buford, Gwinnett County, Georgia, to
house such equipment (such loan and security agreements described in (i) and
(ii) are collectively called the "Prior Loan Agreements").
Lender and Borrower are also parties to that certain Amended and
Restated Loan and Security Agreement dated as of December 13, 1995 (the "Amended
and Restated Loan Agreement") pursuant to which Lender and Borrower amended and
restated in their entireties the Prior Loan Agreements and pursuant to which
Lender increased the amount of credit available to Borrower under the $500,000
receivables credit facility to $1,000,000 and provided to Borrower an additional
revolving credit facility of up to $4,000,000.
Borrower desires that Lender modify the existing facilities under the
Amended and Restated Loan Agreement to provide for a single $11,000,000
revolving credit facility, and Lender is willing to do so, all in accordance
with and subject to the terms and conditions set forth herein, and Borrower and
Lender have agreed in connection therewith to amend and restate the Amended and
Restated Loan Agreement in its entirety, as set forth herein.
Borrower acknowledges and agrees that the security interest granted
to Lender pursuant to the Amended and Restated Loan Agreement and the other Loan
Documents (as defined in the Amended and Restated Loan Agreement), shall remain
outstanding and in full force and effect in accordance with the Amended and
Restated Loan Agreement and shall continue to secure the Obligations (as defined
herein).
Borrower and Lender acknowledge and agree that (i) the Obligations
(as defined herein) represent, among other things, the amendment, restatement,
renewal, extension, consolidation and modification of the Obligations (as
defined in the Amended and Restated Loan Agreement) arising in connection with
the Amended and Restated Loan Agreement and the other Loan Documents (as defined
in the Amended and Restated Loan Agreement) executed in connection therewith;
(ii) Borrower and Lender intend that the Amended and Restated Loan Agreement and
the other Loan Documents (as defined in the Amended and Restated Loan Agreement)
executed in connection therewith and the collateral pledged thereunder shall
secure, without interruption or impairment of any kind, all existing
Indebtedness under the Amended and Restated Loan Agreement and the other Loan
Documents (as defined in the Amended and Restated Loan Agreement) executed in
connection therewith as so amended, restated, renewed, extended, consolidated
and modified hereunder, together with all other obligations hereunder; (iii) all
<PAGE>
Liens evidenced by the Amended and Restated Loan Agreement and the other Loan
Documents (as defined in the Amended and Restated Loan Agreement) executed in
connection therewith are hereby ratified, confirmed and continued; and (iv) the
Loan Documents (as defined herein) are intended to restate, renew, extend,
consolidate, amend and modify the Amended and Restated Loan Agreement and the
other Loan Documents (as defined in the Amended and Restated Loan Agreement)
executed in connection therewith.
Borrower and Lender intend that (i) the provisions of the Amended and
Restated Loan Agreement and the other Loan Documents (as defined in the Amended
and Restated Loan Agreement) executed in connection therewith, to the extent
restated, renewed, extended, consolidated, amended and modified hereby, be
hereby superseded and replaced by the provisions hereof and of the other Loan
Documents (as defined herein); (ii) the Note (as hereinafter defined) amends,
renews, extends, modifies, replaces, is substituted for and supersedes in its
entirety, but does not extinguish, the Indebtedness arising under the promissory
notes issued pursuant to the Amended and Restated Loan Agreement; and (iii)
entering into, and performing their respective obligations under, this
transaction not constitute a novation.
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants herein set forth, the sum of $10.00 in hand paid by each party hereto
to the other, and in order to induce Lender to continue to make loans from time
to time to Borrower, as well as for other good and valuable consideration, the
receipt and adequacy of all of the foregoing as legally sufficient consideration
being hereby acknowledged, Borrower and Lender do hereby agree to amend and
restate the Amended and Restated Loan Agreement as follows:
Statement of Terms
SECTION 1. GENERAL DEFINITIONS
1.1. Defined Terms. When used herein the following terms shall have
the following meanings (terms defined in the singular to have the same meaning
when used in the plural and vice versa):
Account Debtor - any Person who is or may become obligated
under or on account of an Account.
Accounts - all accounts, contract rights, chattel paper,
instruments and documents, whether now owned or hereafter created or acquired by
Borrower or in which Borrower now has or hereafter acquires any interest.
Adjusted LIBOR - for any Interest Period, the rate per annum
(rounded upwards to the nearest 1/16th of one percentage point (if necessary) to
the quotient obtained by dividing (x) the offered rate for United States dollar
deposits for a period comparable to such Interest Period appearing on the
Reuters Screen LIBO Page (or as quoted or published by such other recognized
independent quote service as may be selected by Lender from time to time) as of
11:00 a.m. (Atlanta, Georgia time) on the date that is two (2) Business Days
prior to the beginning of such Interest Period (but if at least two such rates
appear on such screen or are so quoted at such time, the offered rate for such
Interest Period shall be the arithmetic mean of such rates) by (y) a percentage
equal to one (1) minus the then average stated maximum amount (stated as a
decimal) of all reserve requirements applicable to any member of the Federal
<PAGE>
Reserve System in respect of Eurocurrency liabilities as defined in Regulation D
of the Board of Governors of the Federal Reserve System (or any successor
categories for such liabilities under such Regulation D);
Affiliate - a Person: (i) which directly or indirectly through
one or more intermediaries controls, or is controlled by, or is under common
control with, Borrower, (ii) which beneficially owns or holds 10% or more of any
class of the Voting Stock of Borrower, or (iii) 10% or more of the Voting Stock
(or in the case of a Person which is not a corporation, 10% or more of the
equity interest) of which is beneficially owned or held, directly or indirectly,
by Borrower. For purposes hereof, "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of Voting Stock, by contract
or otherwise.
Agreement - this Second Amended and Restated Loan and Security
Agreement, as the same may be modified or amended from time to time.
Business Day - a day on which the Federal Reserve Bank of
Atlanta is open for business in Atlanta, Georgia, except that, when used in
connection with a LIBOR Advance, "Business Day" shall mean any Business Day on
which dealings in U.S. dollars between banks may be carried on in London,
England and Atlanta, Georgia.
Capital Expenditures - in respect of any Person, expenditures
for the purchase of assets of long-term use which are capitalized in accordance
with GAAP.
Capitalized Lease Obligation - any Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP.
Cash Collateral Account - the investment account no.
672-0791379803 (as such account number may be changed from time to time)
established by Borrower with Lender together with any and all monies now or
hereafter on deposit therein or credited thereto as well as all certificates of
deposit, saving certificates, commercial paper, government obligations, money
market fund shares, repurchase agreement, and other investments or securities in
which any such monies or funds may be now or hereafter invested from time to
time, together with any and all certificates or other instruments representing
said investments or securities, and all interest, distributions and dividends
(whether in cash, stock, warrants, options or other securities), and all other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any and all of said investments or securities, and
all cash and non-cash proceeds of any of the foregoing.
Cash Collateral Account Agreement - the Amended and Restated
Cash Collateral Account Agreement dated as of December 9th, 1996 entered into
between Borrower and Lender, and any amendment, modification or replacement
thereof.
CERCLA - the meaning ascribed thereto in the definition of
Environmental Laws.
Closing Date - the date on which all of the conditions
precedent in Section 8 are satisfied and the initial Loan is made hereunder.
<PAGE>
Code - the Uniform Commercial Code as adopted and in force in
the State of Georgia, as from time to time in effect.
Collateral - all of the Property and interests in Property
described in Section 5 hereof, and all other Property and interests in Property
that now or hereafter secure the payment and performance of any of the
Obligations.
Cyclotron - a proton accelerator used for manufacturing
radioactive material.
Debt Service Coverage Ratio - for any period, (a)(i) Borrower's
EBITDA for such period, minus (ii) taxes paid during such period, minus (iii)
any dividends or other distributions to shareholders made during such period,
divided by (b) total principal and interest payable on Indebtedness for Money
Borrowed during such period.
Deeds to Secure Debt - (a) the Deed to Secure Debt, Assignment
of Rents and Leases and Security Agreement dated as of September 14, 1992
between Borrower and Lender relating to Land Lot 298 of the 7th District,
Gwinnett County, Georgia, (b) the Security Deed and Agreement dated as of May
17, 1996 between Borrower and Lender relating to Land Lot 170, 8th Land
District, Hall County, Georgia and in Pucketts G.M.D. 1397, Gwinnett County,
Georgia, (c) the Security Deed and Agreement dated as of September 6, 1996
between Borrower and Lender relating to Land Lot 170, 8th Land District, Hall
County, Georgia and (d) any amendments, modifications or replacements of the
foregoing.
Default - an event or condition the occurrence of which would,
with the lapse of time or the giving of notice, or both, become an Event of
Default.
EBITDA - for any period, the Net Income of Borrower for such
period, plus, without duplication and to the extent reflected as charges in the
statement of Net Income for such period, the sum of (i) taxes measured by
income, (ii) Interest Expense and (iii) depreciation and amortization expense.
Environmental Claims - any written notice of any Governmental
Authority alleging potential liability for damage to the environment or by any
Person alleging potential liability for personal injury (including sickness,
disease or death), in either case resulting from or based upon (a) the presence
or Release (including intentional and unintentional, negligent and
non-negligent, sudden or non-sudden, accidental or non-accidental, leaks or
spills) of any Hazardous Substance at, in or from the property, whether or not
owned or leased by Borrower or (b) any other circumstances forming the basis of
any violation, or alleged violation, of any Environmental Laws.
Environmental Laws - all federal, state and local laws, rules,
regulations, ordinances, programs, permits, guidance, orders and consent decrees
relating to health, safety and environmental matters, including, but not limited
to, the Resource Conservation and Recovery Act, as amended; the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), the Toxic Substances Control Act, as amended; the Clean Water Act,
as amended; the Clean Air Act, as amended; the Superfund Amendments and
Reauthorization Act of 1986, as amended; state and federal superlien and
environmental cleanup programs and laws; and U.S. Department of Transportation
regulations.
<PAGE>
Equipment - equipment, Cyclotrons, machinery, computers and
computer hardware, vehicles, tools, dies and jigs, furniture, trade fixtures and
fixtures, all attachments, accessories and property now or hereafter affixed
thereto or used in connection therewith, substitutions and replacements thereof
wherever located, whether now owned or hereafter acquired by Borrower.
ERISA - the Employee Retirement Income Security Act of 1974, as
amended from time to time, and all rules and regulations from time to time
promulgated thereunder.
Event of Default - as defined in Section 9.1 of this Agreement.
GAAP - generally accepted accounting principles in the United
States of America on the date hereof, except that, for purposes of Section
7.1(I) of this Agreement, such term shall mean such principles in effect from
time to time.
Governmental Authority - any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
Hazardous Substances - any toxic, radioactive, caustic or
otherwise hazardous substance, material or waste, including petroleum, its
derivatives, by-products and other hydrocarbons, or any substance having any
constituent elements displaying any of the foregoing characteristics, including
without limitation, polychlorinated biphenyls ("PCBs"), asbestos or
asbestos-containing material, and any substance, waste or material regulated
under Environmental Laws.
Indebtedness - as applied to a Person means, without
duplication (i) all items which in accordance with GAAP would be included in
determining total liabilities as shown on the liability side of a balance sheet
of such Person as at the date as of which Indebtedness is to be determined,
including, without limitation, Capitalized Lease Obligations, (ii) all
obligations of other Persons which such Person has guaranteed and (iii) in the
case of Borrower (without duplication), the Obligations.
Interest Expense - for any period, interest payments accrued in
respect to Indebtedness for Money Borrowed, together with fees associated
therewith (other than fees payable on or prior to the Closing Date), and shall
include the interest payments for such period in respect of Capitalized Lease
Obligations, all as determined in accordance with GAAP.
Interest Period - (a) in the case of the determination of any
Adjusted LIBOR, a one, two, three, four, five or six month period as selected by
Borrower and (b) in the case of the determination of any Treasury Rate, a one,
two, three or five year period, but (c) in the event any Interest Period would
end on a day which is not a Business Day, such Interest Period shall be deemed
to end on the immediately succeeding Business Day unless such extension would
cause such Interest Period to end on the next calendar month in which case such
Interest Period shall be deemed to end on the immediately preceding Business
Day, (d) any Interest Period which begins on a day for which there is no
numerically corresponding day in the calendar month in which such Interest
<PAGE>
Period ends shall expire on the immediately preceding Business Day, and (e) with
respect to any Loans prior to the Revolving Credit Facility Expiration Date,
Borrower shall not be entitled to select any Interest Period which extends
beyond the Revolving Credit Facility Expiration Date and (f) with respect to any
Loans after the Revolving Credit Facility Expiration Date, Borrower shall not be
entitled to select an Interest Period which extends beyond the Maturity Date.
Inventory - raw materials, work in process, finished goods, and
all other inventory of whatsoever kind or nature, wherever located, whether now
owned or hereafter existing or acquired by Borrower, including, without
limitation, all wrapping, packaging, advertising, shipping materials, and all of
Borrower's right, title and interest therein and thereto.
Letter of Credit - any standby letter of credit issued by
Lender on the account of Borrower pursuant to a Letter of Credit Agreement for
the purpose of guaranteeing Cyclotron payments and decommissioning costs, for
Capital Expenditures and for general corporate purposes.
Letter of Credit Agreement - any letter of credit agreement
between Borrower and Lender with respect to the issuance of the Letters of
Credit, and any amendments, modifications or replacements of the foregoing.
Leverage Ratio - as of the applicable calculation date, the
ratio of Borrower's Indebtedness to its Tangible Net Worth.
LIBOR Advance - any Loans hereunder (or portion thereof) which
bear interest based on Adjusted LIBOR.
Lien - any interest in Property securing an obligation owed to,
or a claim by a Person other than the owner of the Property, whether such
interest is based on the common law, statute or contract, and including, but not
limited to, the security interest, security title or Lien arising from a
security agreement, mortgage, deed of trust, deed to secure debt, encumbrance,
pledge, conditional sale or trust receipt or a lease, consignment or bailment
for security purposes. The term "Lien" shall include reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions,
leases and other title exceptions and encumbrances affecting Property. For the
purpose of this Agreement, Borrower shall be deemed to be the owner of any
Property which it has acquired or holds subject to a conditional sale agreement
or other arrangement pursuant to which title to the Property has been retained
by or vested in some other Person for security purposes.
Loan Documents - this Agreement and the Other Agreements.
Loans - all loans and advances made by Lender pursuant to this
Agreement, including, without limitation, the Revolving Credit Loans and, if
converted to term loans in accordance with this Agreement, all Revolving Credit
Loans converted to such term loans.
Material Adverse Effect - any materially adverse effect (a)
upon the business, assets, liabilities, Properties, financial condition, or
<PAGE>
results of operations of Borrower, or (b) upon the ability of Borrower to ensure
performance under this Agreement or any other Loan document, or (c) upon the
rights, benefits or interests of Lender in or to this Agreement, any other Loan
Document or the Collateral, in each case, resulting from any act, omission,
situation, status, event, or undertaking, (other than by the gross negligence or
willful misconduct of Lender) either singly or taken together.
Maturity Date - June 30, 1997, or if the Revolving Credit Loans
are termed-out pursuant to Section 2.1(B) of this Agreement, June 30, 2002 or
such earlier date as the Obligations shall become due (whether by acceleration
or otherwise).
Money Borrowed - as applied to Indebtedness, means (i)
Indebtedness for borrowed money; (ii) Indebtedness, whether or not in any such
case the same was for borrowed money, (A) which is represented by notes payable
or drafts accepted that evidence extensions of credit, (B) which constitutes
obligations evidenced by bonds, debentures, notes, reimbursement or indemnity
agreements with respect to letters of credit (only to the extent such letters of
credit guaranty obligations which do not otherwise constitute Indebtedness for
Money Borrowed under clauses (i) through (iv) hereof) or similar instruments, or
(C) upon which interest charges are customarily paid (other than accounts
payable) or that was issued or assumed as full or partial payment for Property;
(iii) Indebtedness that constitutes a Capitalized Lease Obligation; and (iv)
Indebtedness under any guaranty of obligations that would constitute
Indebtedness for Money Borrowed under clauses (i) through (iii) hereof.
Multiemployer Plan - has the meaning set forth in Section
4001(a)(3) of ERISA.
Net Income - for any period, net income determined in
accordance with GAAP.
Note - the Revolving Credit Note.
Obligations - all loans and all other advances, debts,
liabilities, obligations covenants and duties owing, arising, due or payable
from Borrower to Lender of any kind or nature, present or future, whether or not
evidenced by any note, guaranty, reimbursement or indemnity agreement with
respect to a letter of credit (only to the extent such letter of credit
guaranties obligations which do not otherwise constitute Obligations hereunder),
or other instrument, whether arising under this Agreement or any of the other
Loan Documents or otherwise, whether direct or indirect (including those
acquired by assignment), absolute or contingent, primary or secondary, due or to
become due, now existing or hereafter arising and however acquired. The term
includes, without limitation, all interest, charges expenses, fees, attorney's
fees and any other sums chargeable to Borrower under any of the Loan Documents.
OSHA - the Occupational Safety and Health Act, as amended from
time to time, and all rules and regulations from time to time promulgated
thereunder.
Other Agreements - the Note, the Deeds to Secure Debt, any
Letter of Credit Agreement, the Cash Collateral Account Agreement and any and
all agreements, instruments and documents (other than this Agreement),
<PAGE>
heretofore, now or hereafter executed by Borrower or delivered to Lender in
respect of the transactions contemplated by this Agreement.
Permitted Liens - any other Lien of a kind specified in
subparagraphs (i) through (viii) of Section 7.2(E) of this Agreement.
Person - an individual, partnership, corporation, limited
liability company, joint stock company, trust or unincorporated organization, or
a government or agency or political subdivision thereof.
Plan - an employee benefit plan now or hereafter maintained for
employees of Borrower that is covered by Title IV of ERISA.
Prime Rate - the rate of interest announced or quoted by Lender
from time to time as its Prime Rate, whether or not such rate is the lowest rate
charged by Lender to its most preferred borrowers; and, if the Prime Rate is
discontinued by Lender as a standard, a comparable reference rate designated by
Lender as a substitute therefor shall be the Prime Rate. After the date hereof,
such rate shall be increased or decreased, as the case may be, by an amount
equal to any increase or decrease in the Prime Rate, with such adjustments to be
effective as of the opening of business on the day that any such change in the
Prime Rate becomes effective. The Prime Rate in effect on the date hereof shall
be the Prime Rate effective as of the opening of business on the date hereof,
but if this Agreement is executed on a day that is not a Business Day, the Prime
Rate in effect on the date hereof shall be the Prime Rate effective as of the
opening of business on the last Business Day immediately preceding the date
hereof.
Prime Rate Advance - any Loans hereunder (or portion thereof)
which bear interest at the Prime Rate.
Prohibited Transaction - any transaction set forth in Section
406 of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended
from time to time.
Property - any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
Purchase Money Indebtedness - means and includes (i)
Indebtedness for the payment of all or any part of the purchase price of any
fixed assets, (ii) any Indebtedness incurred at the time of or within ten (10)
days prior to or after the acquisition of any fixed assets for the purpose of
financing all or any part of the purchase price thereof, and (iii) any renewals,
extensions or refinancings thereof, but not any increases in the principal
amounts thereof outstanding at the time.
Purchase Money Lien - a Lien upon fixed assets which secure
Purchase Money Indebtedness, but only if such Lien shall at all times be
confined solely to the fixed assets the purchase price of which was financed
through the incurrence of the Purchase Money Indebtedness secured by such Lien.
<PAGE>
Release - any discharge, emission, release, or threat thereof,
including a "Release" as defined in CERCLA at 42 U.S.C. Section 9601(22); and
the term "Released" has a meaning correlative thereto.
Reportable Event - any of the events set forth in Section
4043(b) of ERISA.
Restricted Investment - any investment in cash or by delivery
of Property to any Person, whether by acquisition of stock Indebtedness or other
obligation or Security, or by loan, advance or capital contribution, or
otherwise, or in any Property except the following: (i) Property to be used in
the ordinary course of business, (ii) Current Assets arising from the sale of
goods and services in the ordinary course of business of Borrower; (iii)
investments in the capital stock of Borrower, not to exceed $10,000 in aggregate
fair market value at any one time; (iv) investments in direct obligations of the
United States of America, or any agency thereof or obligations guaranteed by the
United States of America, provided that such obligations mature within one year
from the date of acquisition thereof; (v) investments in certificates of deposit
or other time deposits maturing within one year from the date of acquisition
issued by a bank or trust company organized under the laws of the United States
or any state thereof having capital surplus and undivided profits aggregating at
least $100,000,000; (vi) investments in commercial paper given the highest
rating by a national credit rating agency and maturing not more than two hundred
seventy (270) days from the date of creation thereof; and (vii) other
investments made through the Cash Collateral Account.
Revolving Credit Facility Expiration Date - June 30, 1997.
Revolving Credit Facility - the facility established pursuant
to Section 2 of this Agreement pursuant to which Lender shall make Revolving
Credit Loans to Borrower.
Revolving Credit Loan - a Loan made by Lender as provided in
Section 2 of this Agreement.
Revolving Credit Loan Account - the loan account established on
the books of Lender pursuant to Section 2.3 hereof and in which Lender will
record all Revolving Credit Loans, payments made on such Loans and other
appropriate debits and credits as provided by this Agreement.
Revolving Credit Note - the Replacement Revolving Credit Note
to be executed by Borrower on or about the Closing Date in favor of Lender to
evidence the Revolving Credit Loans, which shall be in the form of Exhibit A
attached hereto, as the same may be modified or amended from time to time after
execution and delivery thereof.
Revolving Credit Maximum Availability - $11,000,000 (as such
amount may be adjusted from time to time pursuant to this Agreement).
Security - shall have the same meaning as in Section 2(1) of
the Securities Act of 1933, as amended.
<PAGE>
Solvent - as to any Person, such Person (i) owns Property whose
fair saleable value is greater than the amount required to pay all of such
Person's Indebtedness (including contingent debts), (ii) is able to pay all of
its Indebtedness as such Indebtedness matures and (iii) has capital sufficient
to carry on its business and transactions and all business and transactions in
which it is about to engage.
Tangible Net Worth - with respect to Borrower, (i) the
aggregate book value of assets (after deduction therefrom of all applicable
reserves and allowances), minus (ii) net book value of goodwill, patents,
franchises, trademarks and tradename, research and development expenses and all
other intangibles, minus (iii) total liabilities, minus (iv) advances to or
investments in Affiliates, all as determined in accordance with GAAP.
Term-Out Requirements - (i) Lender shall have received from
Borrower, on or prior to the Revolving Credit Facility Expiration Date,
financial statements for Borrower's fiscal year ending on December 31, 1996 and
financial statements for Borrower's fiscal quarter ending March 31, 1997,
prepared in accordance with Sections 7.1(I)(i) and 7.1(I)(ii) hereof,
respectively, and demonstrating Borrower's compliance with the financial
covenants set forth in Sections 7.2(L), 7.2(M), 7.2(N), 7.2(O) and 7.2(R)
hereof, (ii) Lender shall have received from Borrower a certificate dated as of
the Revolving Credit Facility Expiration Date (a) reaffirming all of the
representations and warranties of Borrower as contained in this Agreement and
the other Loan Documents except as to those changes otherwise consented to by
Lender or contemplated herein and (b) certifying compliance with all covenants
of Borrower contained in this Agreement, (iii) Borrower shall have paid to
Lender a term-out fee equal to .125% of the outstanding principal balance of the
Revolving Credit Loans as of the Revolving Credit Facility Expiration Date and
(iv) no Default or Event of Default shall exist or be continuing on the
Revolving Credit Facility Expiration Date.
Treasury Rate - for any Interest Period, the rate per annum for
constant maturities of U.S. treasury bills having a term equal to the applicable
Interest Period as published by the Board of Governors of the Federal Reserve
System in Statistical Release H.15(519) (or, in the event of the non-publication
of such Release, other appropriate Federal Reserve Board publications of such
rate) on the date that is two (2) Business Days prior to the beginning of such
Interest Period.
Treasury Rate Advance - any Loans hereunder (or portion
thereof) which bear interest at the Treasury Rate.
1.2. Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP consistent with that applied
in preparation of the financial statements referred to in Section 6.l(K), and
all financial data pursuant to the Agreement shall be prepared in accordance
with such principles.
1.3. Other Terms. All other terms contained in this Agreement shall
have, when the context so indicates, the meanings provided for by the Code to
the extent the same are used or defined therein.
1.4. Certain Matters of Construction. The terms "herein", "hereof"
and "hereunder" and other words of similar import refer to this Agreement as a
whole and not to any particular section, paragraph or subdivision. Any pronoun
<PAGE>
used shall be deemed to cover all genders. The section titles, table of contents
and list of exhibits appear as a matter of convenience only and shall not affect
the interpretation of this Agreement.
SECTION 2. REVOLVING CREDIT FACILITY
Subject to the terms and conditions of, and in reliance upon the
representations and warranties made in, this Agreement and the other Loan
Documents, Lender shall make a revolving credit facility of up to the Revolving
Credit Maximum Availability available to Borrower upon Borrower's request
therefor, as follows:
2.1. Revolving Credit Loans.
(A) Subject to the terms and conditions of this Agreement,
Lender shall make Revolving Credit Loans to Borrower from time to time prior to
the Revolving Credit Facility Expiration Date in accordance with the terms of
Section 2.2 hereof up to a maximum principal amount at any time outstanding
equal to the Revolving Credit Maximum Availability. The Revolving Credit Loans
shall be evidenced by the Revolving Credit Note. It is expressly understood and
agreed that the Revolving Credit Maximum Availability shall be the maximum
ceiling on Revolving Credit Loans outstanding to Borrower at any time. Lender
shall not be obligated to make Revolving Credit Loans at any time that there
exists a Default or an Event of Default or at any time on or after the Revolving
Credit Facility Expiration Date. Notwithstanding anything herein to the
contrary, the sum of the aggregate outstanding principal balance of the
Revolving Credit Loans at any one time plus the aggregate stated amount of all
Letters of Credit then outstanding may not exceed the Revolving Credit Maximum
Availability as then in effect.
(B) On the Revolving Credit Facility Expiration Date, the
entire unpaid balance of the Revolving Credit Loans shall be due and payable;
provided, however, that if Borrower meets all of the Term-Out Requirements on
the Revolving Credit Facility Expiration Date, the outstanding principal balance
of the Revolving Credit Loans automatically shall term-out on the Revolving
Credit Facility Expiration Date without any further action by Borrower or Lender
and the outstanding principal balance of the Revolving Credit Loans shall be
payable (and interest shall accrue and be payable thereon) as follows:
(i) Interest shall accrue at the rates per annum set forth
in Section 2.4(C) hereof.
(ii) The outstanding principal balance on the Revolving
Credit Facility Expiration Date shall be payable in sixty (60) equal consecutive
installments, commencing on July 31, 1997 and continuing to be due on the same
day of each succeeding month thereafter until June 30, 2002, at which time all
unpaid principal and accrued interest shall be due and payable in full.
(iii) Accrued interest on the Revolving Credit Note shall
be due and payable monthly in arrears on the last day of each month for Prime
Rate Advances and Treasury Rate Advances, and on the last day of each Interest
Period for LIBOR Advances; provided, however, that for any LIBOR Advance for
which the Interest Period is in excess of one month, interest shall be due and
payable on the last day of each month during the term of such Interest Period as
the day on which such LIBOR Advance was made.
<PAGE>
(C) Borrower may prepay the Revolving Credit Loans in whole or
in part in accordance with the terms and conditions of Section 2.4 hereof.
(D) If the unpaid balance of the Revolving Credit Loans should
exceed the Revolving Credit Maximum Availability, or any other limitation set
forth in this Agreement, such Revolving Credit Loans shall nevertheless
constitute Obligations that are secured by the Collateral and entitled to all
benefits thereof.
(E) Insofar as Borrower may request and Lender may be willing
in its sole and absolute discretion to make Revolving Credit Loans to Borrower
at a time when the unpaid balance of Revolving Credit Loans exceeds, or would
exceed with the making of such Revolving Credit Loan, the Revolving Credit
Maximum Availability (any such Loan or Loans being herein referred to
individually as a "Revolving Credit Overadvance" and collectively as "Revolving
Credit Overadvances"), Lender shall enter such Revolving Credit Overadvances as
debits in the Loan Account. All Revolving Credit Overadvances shall be repaid on
demand and shall be evidenced by the Revolving Credit Note.
(F) The Revolving Credit Loans shall be used solely for
Borrower's general corporate needs, Capital Expenditures and real estate
purchases, all to the extent not inconsistent with the provisions of this
Agreement.
2.2. Manner of Borrowing Revolving Credit Loans. Borrowings under
the Revolving Credit Facility established pursuant to Section 2.1 shall be as
follows:
(A) A request for a Revolving Credit Loan shall be made, or
shall be deemed to be made, in the following manner: (i) Borrower shall give
Lender written notice (or telephonic notice promptly confirmed in writing)
substantially in the form of Exhibit C attached hereto, signed by an authorized
officer of Borrower, provided that in the case of Prime Rate Advances, such
notice shall be given to Lender not later than 10:00 a.m. (Atlanta, Georgia
time) on the Business Day of the date of a proposed Prime Rate Advance, in the
case of LIBOR Advances, such notice shall be given to Lender at least two (2)
Business Days prior to the date of a proposed LIBOR Advance, and in the case of
Treasury Rate Advances, such notice shall be given to Lender at least five (5)
Business Days prior to the date of a proposed Treasury Rate Advance, and further
provided that any notice given to Lender under this Section shall be given to
Lender prior to 10:00 a.m. (Atlanta, Georgia time) in order for such Business
Day to count towards the minimum number of Business Days required; (ii) the
becoming due of any other Obligation, to the extent not paid by Borrower, on the
due date thereof, after giving effect to any applicable grace periods, shall be
deemed, at Lender's discretion, irrevocably to be a request for a Revolving
Credit Loan on the due date in the amount then so due and (iii) pursuant to the
terms of Borrower's Autoborrow account or similar account with Lender.
(B) Borrower hereby irrevocably authorizes Lender to disburse
the proceeds of each Revolving Credit Loan requested, or deemed to be requested,
pursuant to this Section 2.2 as follows: (i) the proceeds of each Revolving
Credit Loan requested under Section 2.2(A)(i) shall be disbursed by Lender in
lawful money of the United States of America in immediately available funds, in
the case of the initial borrowing, in accordance with the terms of the written
disbursement letter from Borrower, and in the case of each subsequent borrowing,
by wire transfer to such bank account as may be agreed upon by Borrower and
Lender from time to time and (ii) the proceeds of each Revolving Credit Loan
requested under Section 2.2(A)(ii) shall be disbursed by Lender by way of direct
payment of the relevant Obligation.
<PAGE>
2.3. Loan Account. Lender shall enter all Revolving Credit Loans as
debits to the Revolving Credit Loan Account and shall also record in the
Revolving Credit Loan Account all payments made by Borrower on Revolving Credit
Loans and all proceeds of Collateral which are finally paid to Lender, and may
record therein, in accordance with customary accounting practice, all charges
and expenses properly chargeable to Borrower hereunder.
2.4. Interest.
(A) Calculation. Interest shall accrue and be payable on the
principal amount of the Revolving Credit Loans calculated on the basis of a
360-day year for the actual number of days elapsed, at the rate or rates of
interest set forth below. In computing interest on any Loan hereunder, the date
of making the Loan shall be included and the date of payment shall be excluded
(except when a Loan is continued or converted as a new Loan under Section 2.4(E)
hereof on such date of payment). Any payment received after 12:00 p.m. (Atlanta,
Georgia time) on any Business Day shall be deemed received on the following
Business Day.
(B) Interest Rate Prior to Revolving Credit Facility Expiration
Date. From the date hereof until (but not including) the Revolving Credit
Facility Expiration Date, the unpaid principal balance of the Revolving Credit
Loans shall bear interest at a rate per annum equal to the Prime Rate; provided,
however, that Borrower may, by a written notice (or by telephonic notice
promptly confirmed in writing) delivered to Lender not later than 10:00 am
(Atlanta, Georgia time) on the second Business Day prior to any Interest Period
designated by Borrower in such notice, direct that interest accrue on the unpaid
principal balance of the Revolving Credit Loans (or any portion thereof which is
in an amount of not less than $250,000 or any greater integral multiple thereof)
outstanding from time to time during such Interest Period at a rate per annum
equal to the sum of the Adjusted LIBOR for such Interest Period plus two (2)
percentage points (2.0%), provided, however, that (i) upon the occurrence and
during the continuation of any Event of Default, Lender may, upon notice to
Borrower, suspend Borrower's right to use the aforesaid Adjusted LIBOR option,
and (ii) Borrower may not have more than four (4) Adjusted LIBOR-based interest
rates in effect hereunder at any one time. Each such designation by Borrower of
an interest rate for the Revolving Credit Loans based on the Adjusted LIBOR and
of an Interest Period applicable thereto shall be irrevocable and shall remain
in effect throughout such Interest Period. Upon determining any interest rate
based on the Adjusted LIBOR for an Interest Period requested by Borrower, Lender
shall notify the Borrower by telephone (which may be confirmed in writing by
Lender) of such determination, and such determination shall, in the absence of
manifest error, be final, conclusive and binding for all purposes.
(C) Interest Rate After Revolving Credit Facility Expiration
Date. If Borrower does not pay in full the outstanding principal balance of the
Revolving Credit Loans on the Revolving Credit Facility Expiration Date and
repayment of the Revolving Credit Loans is extended pursuant to Section 2.1(B)
hereof, then, commencing on the Revolving Credit Facility Expiration Date, the
unpaid principal balance of the Revolving Credit Loans shall bear interest at a
rate per annum equal to the Prime Rate; provided, however, that Borrower may, by
a written notice (or by telephonic notice promptly confirmed in writing)
delivered to Lender not later than 10:00 am (Atlanta, Georgia time) on the
second Business Day prior to the commencement of any Interest Period designated
by Borrower in such notice, direct that interest accrue on the unpaid principal
balance of the Revolving Credit Loans (or any portion thereof which is in an
amount of not less than $250,000 or any greater integral multiple thereof in the
case of LIBOR Advances, and in an amount not less than $1,000,000 or any greater
<PAGE>
integral amount thereof in the case of Treasury Rate Advances) outstanding from
time to time during such Interest Period at a rate per annum equal to either (a)
the sum of the Adjusted LIBOR for such Interest Period plus the Applicable
Interest Rate Margin in effect from time to time and as more fully set forth in
Section 2.4(D) below or (b) the sum of the Treasury Rate for such Interest
Period plus the Applicable Interest Rate Margin in effect from time to time and
as more fully set forth in Section 2.4(D) below.
(D) Applicable Interest Rate Margin. Commencing on the
Revolving Credit Facility Expiration Date, the Applicable Interest Rate Margin
for LIBOR Advances or Treasury Rate Advances shall be the interest rate margin
determined by Lender based upon Borrower's Debt Service Coverage Ratio for the
four (4) quarter period ending on the last day of the most recent fiscal quarter
for which financial statements have been provided to Lender, effective as of the
second Business Day after the financial statements referred to in Sections
7.1(I)(i) and 7.1(I)(ii) hereof, and an accompanying certificate of the chief
financial officer of Borrower in the form of Exhibit B attached hereto, are
delivered by Borrower to Lender for the fiscal quarter most recently ended,
expressed as a per annum rate of interest as follows:
-------------------------------- =============================================
If Borrower's Debt Service Then, the Applicable Interest Rate Margin
Coverage Ratio is: shall be:
------------------------------- =============================================
Less than 2.0 to 1.0 2.250% for LIBOR Advances
OR
2.500% for Treasury Rate Advances
================================ =============================================
Greater than 2.0 to 1.0 but 2.125% for LIBOR Advances
Less than 2.5 to 1.0 OR
2.375% for Treasury Rate Advances
================================ =============================================
Greater than 2.5 to 1.0 but 2.000% for LIBOR Advances
Less than 3.0 to 1.0 OR
2.250% for Treasury Rate Advances
================================ =============================================
Greater than 3.0 to 1.0 but 1.875% for LIBOR Advances
Less than 3.5 to 1.0 OR
2.125% for Treasury Rate Advances
================================ =============================================
Greater than 3.5 to 1.0 1.750% for LIBOR Advances
OR
2.000% for Treasury Rate Advances
================================ =============================================
In the event that Borrower fails to timely provide the financial statements and
certificate referred to above in accordance with the terms of Sections 7.1(I)(i)
and 7.1(I)(ii) hereof, and without prejudice to any additional rights under
Section 9.3 hereof or otherwise, no downward adjustment of the Applicable
Interest Rate Margin in effect for the preceding quarter shall occur until the
actual delivery of such financial statements and certificate.
(E) Conversions and Continuations.
(i) Borrower may on any Business Day, subject to the giving
of a proper Notice of Conversion/Continuation as hereinafter described, elect
(A) to continue all or any part of a LIBOR Advance by selecting a new Interest
Period therefor, to commence on the last day of the immediately preceding
<PAGE>
Interest Period, or (B) subject to the availability of interest rates as
provided in Sections 2.4(B), 2.4(C) and 2.4(D) hereof, to convert all or any
part of a Loan of one type into a Loan of another type; provided, however, that
Lender shall not be obligated to convert any outstanding Loan into or continue
any outstanding Loan as a LIBOR Advance when any Default or Event of Default has
occurred and is continuing. Any conversion of a LIBOR Advance into a Prime Rate
Advance shall be made on the last day of the Interest Period for such LIBOR
Advance.
(ii) Whenever Borrower desires to convert or continue Loans
under Section 2.4(E)(i), Borrower shall give Lender written notice (or
telephonic notice promptly confirmed in writing) substantially in the form of
Exhibit D, signed by an authorized officer of Borrower, on the requested
conversion date by 10:00 a.m. in the case of a conversion into a Prime Rate
Advance, by 10:00 a.m. at least two (2) Business Days before the requested
conversion or continuation date in the case of a conversion into or continuation
of a LIBOR Advance and by 10:00 a.m. at least five (5) Business Days before the
requested conversion or continuation date in the case of a Treasury Rate
Advance. Each such Notice of Conversion/Continuation shall be irrevocable and
shall specify the aggregate principal amount of the Loans to be converted or
continued, the date of such conversion or continuation (which shall be a
Business Day) and whether the Loans are being converted into or continued as a
LIBOR Advance or a Treasury Rate Advance (and, if so, the duration of the
Interest Period to be applicable thereto) or a Prime Rate Advance. If upon the
expiration of any Interest Period in respect of any LIBOR Advance or a Treasury
Rate Advance, Borrower shall have failed to deliver the Notice of
Conversion/Continuation, Borrower shall be deemed to have elected to convert
such LIBOR Advance or Treasury Rate Advance to a Prime Rate Advance.
(F) Upon Default. During the existence of any Event of Default,
the unpaid principal balance of the Revolving Credit Loans and, to the extent
permitted by law, the accrued interest balance of the Revolving Credit Loans
shall bear interest on each day until paid at the higher of the Prime Rate or
the interest rate otherwise in effect under this Agreement, plus in either case,
in Lender's discretion, up to an additional two percentage points (2.0%), but
only to the extent that payment of such interest on such principal or interest
is enforceable under applicable law.
(G) Prepayments. All payments or prepayments on the Revolving
Credit Loans shall be applied first to interest accrued on the Revolving Credit
Loans through the date of such payment or prepayment and then to principal (and,
if principal is then payable in installments, partial principal prepayments
shall be applied to such installments in the inverse order of their maturity).
(H) Reimbursement. Notwithstanding anything in this Agreement
or the other Loan Documents to the contrary, a prepayment of any portion of the
principal balance of the Revolving Credit Loans which is then outstanding as a
LIBOR Advance or a Treasury Rate Advance may be made without penalty by Borrower
only on the last day of the Interest Period applicable thereto and, if any such
prepayment is made on a day that is not the last day of the applicable Interest
Period, Borrower shall pay to Lender, upon Lender's written request to the
Borrower therefor (which request shall set forth the basis for the request of
such payment in reasonable detail and, in the absence of manifest error, shall
be final, conclusive and binding on Lender and Borrower), an amount equal to any
and all losses, expenses and liabilities (including, without limitation, any
interest paid by Lender to the extent not recovered by the Lender in connection
<PAGE>
with its re-employment of the prepaid funds) which Lender may sustain as a
result of such prepayment. The calculation of any and all amounts payable to
Lender with respect to any portion of the principal balance of the Revolving
Credit Loans outstanding as LIBOR Advances shall be made as though Lender had
actually funded such portion through the purchase of deposits in the London
interbank market; provided, however, that Lender may fund such portion of the
Revolving Credit Loans in any manner it sees fit and the foregoing assumptions
shall be used only for calculation of amounts which may be payable under the
Revolving Credit Loans.
(I) Maximum Interest Rate. In no contingency or event
whatsoever shall the aggregate of all amounts deemed interest hereunder or under
the Revolving Credit Note and charged or collected pursuant to the terms of this
Agreement or pursuant to the Revolving Credit Note exceed the highest rate
permissible under any law which a court of competent jurisdiction shall, in a
final determination, deem applicable hereto. In the event that such a court
determines that Lender has charged or received interest hereunder in excess of
the highest applicable rate, Lender shall promptly refund such excess interest
to Borrower and such rate shall automatically be reduced to the maximum rate
permitted by such law.
SECTION 3. LETTERS OF CREDIT LETTERS OF CREDIT LETTERS OF CREDIT
3.1. Amounts, Terms and Issuance of Letters of Credit.
If requested to do so by Borrower, Lender may, in its discretion,
issue one or more Letters of Credit for the account of Borrower; provided,
however that the sum of the aggregate outstanding principal balance of the
Revolving Credit Loans at any one time plus the aggregate stated amount of all
Letters of Credit then outstanding may not exceed the sum of the Revolving
Credit Maximum Availability as then in effect and any amounts paid by Lender
with respect to any draw under any such Letter of Credit shall be deemed to be a
Revolving Credit Loan and shall bear interest and shall be repayable in
accordance with the terms hereof and of the Revolving Credit Note unless such
amount is immediately reimbursed by Borrower on demand therefor by Lender.
3.2. Fees.
Borrower shall pay to Lender for the issuance of each Letter of
Credit on or after the date hereof a fee in the amount of one and one quarter of
one percent (1.25%) per annum of the face amount of such Letter of Credit, which
fee shall be payable in full on the issuance of such Letter of Credit. Borrower
shall also pay or reimburse Lender for normal and customary costs or expenses
incurred by Lender in issuing, effecting payment under, amending or otherwise
administering the Letters of Credit.
3.3. Reimbursement Obligations Absolute.
Borrower agrees that any action taken or omitted to be taken by
Lender in connection with any Letter of Credit, except for such actions or
omissions as shall constitute gross negligence or willful misconduct on the part
of Lender, shall be binding on Borrower as between Borrower and Lender, and
shall not result in any liability of Lender to Borrower. The obligation of
Borrower to reimburse Lender for a drawing under any Letter of Credit or for
advances made by Lender on account of draws made under the Letters of Credit
shall be absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances whatsoever,
including, without limitation, the following circumstances:
<PAGE>
(A) Any lack of validity or enforceability of any Loan
Document;
(B) Any amendment or waiver of or consent to any departure from
any or all of the Loan Documents;
(C) Any improper use which may be made of any Letter of Credit
or any improper acts or omissions of any beneficiary or transferee of any Letter
of Credit in connection therewith;
(D) The existence of any claim, set-off, defense or any right
which Borrower may have at any time against any beneficiary or any transferee of
any Letter of Credit (or Persons for whom any such beneficiary or any such
transferee may be acting), Lender or any other Person, whether in connection
with any Letter of Credit, any transaction contemplated by any Letter of Credit,
this Agreement, or any other Loan Document, or any unrelated transaction;
(E) Any statement or any other documents presented under any
Letter of Credit proving to be insufficient, forged, fraudulent or invalid in
any respect or any statement therein being untrue or inaccurate in any respect
whatsoever, provided that such payment shall not have constituted gross
negligence or willful misconduct of Lender;
(F) The insolvency of any Person issuing any documents in
connection with any Letter of Credit;
(G) Any breach of any agreement between Borrower and any
beneficiary or transferee of any Letter of Credit;
(H) Any irregularity in the transaction with respect to which
any Letter of Credit is issued, including any fraud by the beneficiary or any
transferee of such Letter of Credit, provided that such transaction shall not
have constituted gross negligence or willful misconduct of Lender;
(I) Any errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, wireless or
otherwise, whether or not they are in code, provided that such error, omission,
interruption or delay shall not have been caused by gross negligence or willful
misconduct of Lender;
(J) Any act, error, neglect or default, omission, insolvency or
failure of business of any of the correspondents of Lender;
(K) Any other circumstances arising from causes beyond the
control of Lender; and
(L) Any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, provided that such other circumstances or
happenings shall not have been the result of gross negligence or willful
misconduct of Lender.
<PAGE>
SECTION 4. TERMINATION; PAYMENTS; FEES AND COSTS
4.1. Termination.
(A) Upon at least thirty (30) days prior written notice to
Lender, Borrower may, at its option, terminate this Agreement, provided,
however, no such termination shall be effective until Borrower has paid all of
the Obligations in immediately available funds and there are no Letters of
Credit still issued and outstanding.
(B) Lender may terminate this Agreement at any time upon
written notice to Borrower upon the occurrence and during the continuation of an
Event of Default.
(C) All of the Obligations arising hereunder or evidenced by
the Note shall be forthwith due and payable upon any termination of this
Agreement. Except as otherwise expressly provided for in this Agreement or the
other Loan Documents, no termination or cancellation (regardless of cause or
procedure) of this Agreement or any of the other Loan Documents shall in any way
affect or impair the powers, obligations, duties, rights, and liabilities of
Borrower or Lender in any way relating to (i) any transaction or event occurring
prior to such termination or cancellation, including without limitation any
Letters of Credit which may be still outstanding, or (ii) any of the
undertakings, agreements, covenants, warranties or representations of Borrower
contained in this Agreement, or any of the other Loan Documents. All such
undertakings, agreements, covenants, warranties and representations shall
survive such termination or cancellation and Lender shall retain its Liens in
the Collateral, and all of its rights and remedies under this Agreement and the
other Loan Documents notwithstanding such termination or cancellation until
Borrower has paid the Obligations to Lender, in full, in immediately available
funds.
(D) It is understood that Borrower may elect to terminate this
Agreement in its entirety only. No section of this Agreement may be terminated
singly.
4.2. Costs, Fees and Expenses
(A) On the date of this Agreement, Borrower shall pay Lender a
non-refundable closing fee for the Revolving Credit Facility in the amount of
$13,750.00, which closing fee shall be fully earned when due and shall be
non-refundable when paid.
(B) Borrower shall pay to Lender an unused commitment fee on
the aggregate unused amount of the Revolving Credit Maximum Availability (which
will accrue from the date hereof) at a rate of .2% per annum. Such unused
commitment fee shall be computed on the basis of a hypothetical year of 360 days
for the actual number of days elapsed, shall be payable quarterly in arrears on
the last day of each fiscal quarter, commencing on December 31, 1996 and on the
Revolving Credit Facility Expiration Date, shall be fully earned when due, and
shall be non-refundable when paid.
(C) Costs, fees and expenses payable pursuant to this Agreement
shall be payable by Borrower, on demand, to Lender or to any other Person
designated by Lender in writing.
4.3. Application of Payments and Collections. Borrower irrevocably
waives the right to direct the application of any and all payments and
collections at any time or times hereafter received by Lender from or on behalf
of Borrower, and Borrower does hereby irrevocably agree that Lender shall have
<PAGE>
the continuing exclusive right to apply and reapply any and all such payments
and collections received at any time or times hereafter by Lender or its agent
against the Obligations, in such manner as Lender may deem advisable,
notwithstanding any entry by Lender upon any of its books and records. If as the
result of collections of Accounts as authorized by this Agreement a credit
balance exists in the Loan Account, such credit balance shall not accrue
interest in favor of Borrower, but shall be available to Borrower at any time or
times for so long as no Default or Event of Default exists. Lender may offset
such credit balance upon or after the occurrence of an Event of Default.
4.4. Statements of Account. Lender will account to Borrower monthly
with a statement of Loans, Letters of Credit, charges and payments made pursuant
to this Agreement and such account rendered by Lender shall (absent manifest
error) be deemed final, binding and conclusive upon Borrower unless Lender is
notified by Borrower in writing to the contrary within thirty (30) days of the
date each account was sent to Borrower at its address set forth herein for
notices. Such notice shall only be deemed an objection to those items
specifically objected to therein.
4.5. All Loans and Obligations to Constitute One Obligation. The
Loans (including without limitation any and all Revolving Credit Overadvances)
shall constitute one general obligation of Borrower, and shall be secured by
Lender's security interest in and Lien upon all of the Collateral, and by all
other security interests and Liens heretofore, now or at any time or times
hereafter granted by Borrower to Lender.
4.6. Capital Adequacy. Without limiting any other provisions of this
Agreement, in the event that Lender determines after the date hereof that the
introduction or change after the date of this Agreement of any law, treaty,
governmental (or quasi-governmental) rule, regulation, guideline or order
regarding capital adequacy, or any change therein or in the interpretation by
any governmental authority or application thereof by any governmental authority
after the date of this Agreement, or compliance by Lender with any request or
directive regarding capital adequacy (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful) from a central
bank or governmental authority or body having jurisdiction over Lender which is
introduced or changed after the date of this Agreement, does or shall have the
effect of reducing the rate of return on Lender's capital as a consequence of
its obligations hereunder to a level below that which Lender could have achieved
but for such law, treaty, rule, regulation, guideline or order or such change or
compliance (taking into consideration Lender's policies with respect to capital
adequacy and assuming the full utilization of Lender's capital immediately
before such adoption, change or compliance) by an amount reasonably deemed by
Lender to be material, then Lender shall promptly after its determination of
such occurrence notify Borrower thereof. The Borrower agrees to pay to Lender as
an additional fee from time to time, within ten (10) days after written notice
and demand by Lender, such amount as Lender certifies to be the amount that will
compensate it for such reduction in connection with its obligations hereunder. A
certificate of Lender claiming compensation under this Section shall be
conclusive in the absence of manifest error or fraud and shall set forth the
nature of the occurrence giving rise to such compensation, the additional amount
or amounts to be paid to it hereunder and the method by which such amounts were
determined. In determining such amount, Lender may use reasonable averaging and
attribution methods.
<PAGE>
SECTION 5. COLLATERAL: GENERAL TERMS
5.1. Security Interest in Collateral. To secure the prompt payment
and performance to Lender of the Obligations, Borrower hereby grants to Lender a
continuing security interest in and Lien upon all the following Property and
interests in Property of Borrower, whether now owned or existing or hereafter
created, acquired or arising and wheresoever located:
(A) All Accounts;
(B) All monies and other Property of any kind, now or at any
time or times hereafter, in the possession or under the control of Lender or a
bailee of Lender, including, without limitation the Cash Collateral Account;
(C) All Equipment, including, without limitation, the Equipment
described on Schedule 5.1(C) attached hereto;
(D) All Inventory including, without limitation, the Inventory
described on Schedule 5.1(D) attached hereto;
(E) All of the real property described on Schedule 5.1(E)
attached hereto, including, without limitation, all easements, tenements, all
buildings, structures and improvements now or hereafter placed on the real
property, and all fixtures now or hereafter installed, located therein, and all
appurtenances thereto, thereon or therein.
(F) All substitutions for and all replacements, products and
cash and non-cash proceeds of any of the Collateral described in (A), (B), (C),
(D) or (E) above, including, without limitation, proceeds of any of such
Collateral; and
(G) All books and records (including, without limitation,
customer lists, credit files, computer programs, print-outs, and other computer
materials and records) of Borrower pertaining to any of the Collateral described
in (A), (B), (C), (D), (E) or (F) above.
5.2. Representations, Warranties and Covenants-Collateral. To induce
Lender to enter into this Agreement, Borrower represents, warrants, and
covenants to Lender.
(A) Borrower has good and marketable title to and ownership of
the Collateral. No other Person has or will have any right, title, interest,
claim, or Lien therein, thereon or thereto other than a Permitted Lien.
(B) The Liens granted to Lender shall be first and prior on the
Collateral and as to the Accounts and proceeds, including insurance proceeds,
resulting from the sale, disposition, or loss thereof.
(C) Borrower shall pay and discharge when due or within any
period when payment may be made without penalty all taxes, levies, and other
charges (except those being contested in good faith by appropriate proceedings
and for which appropriate reserves have been established) upon said Collateral
and upon the goods evidenced by any documents constituting Collateral and shall
defend Lender against and save it harmless from all claims of any Person with
respect to the Collateral except that Borrower's failure to pay any such taxes
shall not be deemed an Event of Default so long as Borrower's failure to pay any
such taxes has not given rise to a Lien other than a Permitted Lien. This
<PAGE>
indemnity shall include reasonable attorneys' fees and legal expenses.
5.3. Financing Statements. Borrower agrees to execute the financing
statements provided for by the Code together with any and all other instruments,
assignments or documents and shall take such other action as may be required to
perfect or to continue the perfection of Lender's security interest in the
Collateral. Unless prohibited by applicable law, Borrower hereby authorizes
Lender to execute and file any such financing statement on Borrower's behalf.
The parties agree that a carbon, photographic or other reproduction of this
Agreement shall be sufficient as a financing statement and may be filed in any
appropriate office in lieu thereof.
5.4. Cash Collateral Account. The Obligations also shall be secured
by the Cash Collateral Account pursuant to the Cash Collateral Account
Agreement.
SECTION 6. REPRESENTATIONS AND WARRANTIES
6.1. General Representations and Warranties. To induce Lender to
enter into this Agreement and to make advances hereunder, Borrower warrants,
represents and covenants to Lender that:
(A) Organization and Qualification. Borrower is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Borrower has duly qualified and is authorized to do business
and is in good standing as a foreign corporation in each state or jurisdiction
listed on Schedule 6.1(A) attached hereto and made a part hereof and in all
other states and jurisdictions where the character of its Properties or the
nature of its activities make such qualification necessary and in which the
failure to be so qualified would have a Material Adverse Effect.
(B) Corporate Names. During the preceding five (5) years,
Borrower has not been known as or used any corporate, fictitious or trade names
except as disclosed on Schedule 6.1(B) attached hereto and made a part hereof.
Except as set forth on Schedule 6.1(B), Borrower has not, during the preceding
five (5) years, been the surviving corporation of a merger or consolidation or
acquired all or substantially all of the assets of any Person.
(C) Corporate Power and Authority. Borrower has the right and
power and is duly authorized and empowered to enter into, execute, deliver and
perform this Agreement and each of the other Loan Documents to which it is a
party. The execution, delivery and performance of this Agreement and each of the
other Loan Documents have been duly authorized by all necessary corporate action
and do not and will not (i) require any consent or approval of the shareholders
of Borrower; (ii) contravene Borrower's charter, articles of incorporation or
by-laws, (iii) violate, or cause Borrower to be in default under, any provision
of any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award in effect having applicability to Borrower; (iv) result
in a breach of or constitute a default under any material indenture or loan or
credit agreement or any other agreement, lease or instrument to which Borrower
is a party or by which it or its Properties may be bound or affected; or (v)
result in, or require, the creation or imposition of any Lien (other than
Permitted Liens) upon or with respect to any of the Properties now owned or
hereafter acquired by Borrower.
<PAGE>
(D) Legally Enforceable Agreement. This Agreement is, and each
of the other Loan Documents when delivered under this Agreement will be, a
legal, valid and binding obligation of Borrower enforceable against it in
accordance with their respective terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency and other
similar laws affecting creditors' rights generally or by principles of equity
pertaining to the availability of equitable remedies.
(E) Use of Proceeds. Borrower's uses of the proceeds of any
advances made by Lender to Borrower pursuant to this Agreement are, and will
continue to be, legal and proper corporate uses, duly authorized by its Board of
Directors, and such uses are consistent with all applicable laws and statutes,
as in effect as of the date hereof.
(F) Margin Stock. Borrower is not engaged principally, or as
one of its important activities, in the business of purchasing or carrying
"margin stock" (within the meaning of Regulation G or U of the Board of
Governors of the Federal Reserve System), and no part of the proceeds of any
Loans to Borrower will be used to purchase or carry any margin stock or to
extend credit to others for the purpose of purchasing or carrying any margin
stock or be used for any purpose which violates or is inconsistent with the
provisions of Regulation G, T, U or X of said Board of Governors.
(G) Governmental Consents. Borrower has, and is in good
standing with respect to, all governmental consents, approvals, authorizations,
permits, certificates, inspections, and franchises necessary to continue to
conduct its business as heretofore or proposed to be conducted by it and to own
or lease and operate its Properties as now owned or leased by it, except for
those the absence of which would not reasonably be expected to have a Material
Adverse Effect.
(H) Solvent Financial Condition. Borrower is now and, after
giving effect to the initial Loans to be made hereunder, at all times will be,
Solvent.
(I) Litigation. Except as set forth on Schedule 6.1(I) attached
hereto and made a part hereof, there are no actions, suits, proceedings or
investigations pending, or to the knowledge of Borrower, threatened, against or
affecting Borrower, or the business, operations, Properties, prospects, profits
or condition of Borrower, in any court or before any governmental authority or
arbitration board or tribunal, and no action, suit, proceeding or investigation
shown on Schedule 6.1(I) is reasonably expected to have a Material Adverse
Effect. Borrower is not in default with respect to any order, writ, injunction,
judgment, decree or rule of any court, governmental authority or arbitration
board or tribunal which is reasonably expected to have a Material Adverse
Effect.
(J) Title to Properties. Borrower has good, indefeasible and
marketable title to and fee simple ownership of, or valid and subsisting
leasehold interests in, all of its real Property, and good title to all of its
other Property, including, without limitation, the Accounts, Inventory and
Equipment, in each case, free and clear of all Liens except Permitted Liens.
(K) Financial Statements. The balance sheet of Borrower as of
September 30, 1996, and the related statements of income, changes in
stockholder's equity, and changes in financial position for the periods ended on
such dates, have been prepared in accordance with GAAP (except for changes in
application in which Borrower's independent certified public accountants
concur), and present fairly the financial position of Borrower at such dates and
the results of Borrower's operations for such periods. Since September 30, 1996,
there has been no material adverse change in the condition, financial or
<PAGE>
otherwise, of Borrower, except changes in the ordinary course of business, which
individually or in the aggregate has been materially adverse. Borrower has a
fiscal year ending December 31.
(L) Full Disclosure. The financial statements referred to in
Section 6.1(K) above, do not, nor does this Agreement or any other written
statement of Borrower to Lender (including, without limitation, Borrower's
filings, if any, with the Securities and Exchange Commission), contain any
untrue statement of a material fact or omit a material fact necessary to make
the statements contained therein or herein not misleading. There is no fact
which Borrower has failed to disclose to Lender in writing which materially
affects adversely or, so far as Borrower can now foresee, will materially affect
adversely the Properties, business, profits, or condition (financial or
otherwise) of Borrower or the ability of Borrower to perform this Agreement.
(M) Pension Plans. Except as disclosed on Schedule 6.1(M)
attached hereto and made a part hereof, Borrower has no Plan. Borrower has not
received any notice to the effect that it is not in full compliance with any of
the requirements of ERISA and the regulations promulgated thereunder. No fact or
situation, including, but not limited to, any Reportable Event or Prohibited
Transaction exists in connection with any Plan which would create a liability of
Borrower. Borrower does not have any withdrawal liability in connection with a
Multiemployer Plan.
(N) Taxes. Borrower has filed all federal, state and local tax
returns and other reports it is required by law to file and has paid, or made
provision for the payment of, all taxes, assessments, fees and other
governmental charges that are due and payable, except such taxes, if any, as are
being actively contested in good faith and as to which adequate reserves have
been provided. The provision for taxes on the books of Borrower is adequate for
all years not closed by applicable statutes, and for its current fiscal year.
(O) Compliance With Laws. Except with respect to Environmental
Laws, which are covered in Section 6.1(P) below, Borrower has duly complied
with, and its Properties, business operations and leaseholds are in compliance
with, in all material respects, the provisions of all federal, state and local
laws, rules and regulations applicable to Borrower, its Properties or the
conduct of its business, including, without limitation, OSHA and all
Environmental Laws, and there have been no citations, notices or orders of
noncompliance issued to Borrower under any such law, rule or regulation other
than as listed on Schedule 6.1(P). None of such notices of noncompliance could
reasonably be expected to have a Material Adverse Effect.
(P) Environmental Laws.
(i) Borrower is in compliance with all Environmental Laws,
with the exceptions of instances that will not in the aggregate result in any
material liability on the part of Borrower.
(ii) Except as described in Schedule 6.1(P), Borrower has
not received notice of any failure to comply with, nor has any such notice been
issued that has not been satisfied so as to bring any property of Borrower into
compliance with, all Environmental Laws. All licenses, permits or registrations
(or any extensions thereof) required under any Environmental Laws for the
business of Borrower as proposed to be conducted have been obtained, with the
exception of instances that are not in the aggregate reasonably likely to have a
<PAGE>
Material Adverse Effect, and Borrower is in material compliance therewith.
Borrower is in compliance with, and is not in breach of or default under
applicable order of any Governmental Authority and no event has occurred and is
continuing that, with the passage of time or the giving of notice or both, would
constitute noncompliance, breach or default thereunder.
(iii) Except as described in Schedule 6.1(P), (a) no
Hazardous Substance has been Released (and no written notification of such
Release has been filed) or is present (whether or not in a reportable or
threshold planning quantity) at, on or under any property owned or leased by
Borrower during the period of Borrower's ownership or lease, under conditions
that required substantial remedial action under applicable Environmental Laws,
and (b) no property now or previously owned or leased by Borrower during the
period of Borrower's ownership or lease has, directly or indirectly, transported
or arranged for the transportation of any Hazardous Substances to any site
listed, or proposed for listing, on the National Priorities List promulgated
pursuant to CERCLA, on CERCLIS (as defined in CERCLA) or on any similar Federal,
state or foreign list of sites requiring investigation or cleanup. Borrower is
not aware of any event, condition or circumstances involving environmental
pollution or contamination, or employee safety or health relating to the use or
handling of, or exposure to, Hazardous Substances, that could reasonably be
expected to materially adversely effect the operations, Properties, business,
prospects, profits or financial condition of Borrower. Borrower and Lender
acknowledge and agree that certain Inventory consists of radioactive isotopes,
which shall be handled in compliance with all Environmental Laws.
(Q) No Defaults. No event has occurred and no condition exists
which would, upon the execution and delivery of this Agreement or Borrower's
performance hereunder, constitute a Default or an Event of Default. Borrower is
not in default, and no event has occurred and no condition exists which
constitutes, or which with the passage of time or the giving of notice or both
would constitute, a default in the payment of any Indebtedness of Borrower to
any Person for Money Borrowed.
(R) Brokers. There are no claims for brokerage commissions,
finder's fees or investment banking fees in connection with the transactions
contemplated by this Agreement.
(S) Investment Company Act. Borrower is not an "investment
company" or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
6.2. Reaffirmation.Each request for a Loan made by Borrower pursuant
to this Agreement or any of the other Loan Documents shall constitute (i) an
automatic representation and warranty by Borrower to Lender that there does not
then exist any Default or Event of Default and (ii) a reaffirmation as of the
date of said request of all of the representations and warranties of Borrower
contained in this Agreement and the other Loan Documents except those relating
to a specific date and except as to those changes otherwise consented to by
Lender or contemplated herein.
6.3. Survival of Representations and Warranties. Borrower covenants,
warrants and represents to Lender that all representations and warranties of
<PAGE>
Borrower contained in this Agreement or any of the other Loan Documents shall be
true at the time of Borrower's execution of this Agreement and the other Loan
Documents in all material respects, and shall survive the execution, delivery
and acceptance thereof by Lender and the parties thereto and the closing of the
transactions described therein or related thereto.
SECTION 7. COVENANTS AND CONTINUING AGREEMENTS
7.1. Affirmative Covenants. During the term of this Agreement, and
thereafter for so long as there are any Obligations to Lender, Borrower
covenants that, unless otherwise consented to by Lender in writing, it shall:
(A) Taxes and Liens. Pay and discharge all taxes, assessments
and governmental charges upon it, its income and Properties as and when such
taxes, assessments and charges are due and payable, or within any period prior
to the imposition of penalties, except and to the extent only that such taxes,
assessments and charges are being actively contested in good faith and by
appropriate proceedings, Borrower maintains adequate reserves on its books
therefor and the nonpayment of such taxes, assessments and charges does not
result in a Lien upon any Properties or Borrower other than a Permitted Lien.
Borrower shall also pay and discharge any lawful claims which, if unpaid, would
become a Lien against any of Borrower's Properties except for Permitted Liens.
(B) Tax Returns. File all federal, state and local tax returns
and other reports Borrower is required by law to file, and maintain adequate
reserves for the payment of all taxes, assessments, governmental charges, and
levies imposed upon it, its income, or its profits, or upon any Property
belonging to it.
(C) Business and Existence. Preserve and maintain its separate
corporate existence and all rights, privileges, and franchises in connection
therewith, and maintain its qualification and good standing in all states in
which such qualification is necessary and in which the failure to so qualify
would materially and adversely affect its business operations or financial
condition.
(D) Maintain Properties. Maintain its Properties in good
condition and make all necessary renewals, repairs, replacements, additions and
improvements thereto to the extent permitted hereby and except as caused by
ordinary wear and tear, obsolescence, loss or damage.
(E) Compliance with Laws. Comply with all laws, ordinances,
governmental rules and regulations, in all material respects, to which it is
subject, and obtain and keep in force any and all governmental licenses,
permits, franchises, or other governmental authorizations necessary to the
ownership of its Properties or to the conduct of its business which, if not so
maintained, would be reasonably likely to have a Material Adverse Effect.
(F) ERISA Compliance. (i) At all times make prompt payment of
contributions required to meet the minimum funding standards set forth in ERISA
with respect to each Plan, (ii) promptly after the filing thereof, furnish to
Lender copies of any annual report required to be filed pursuant to ERISA in
connection with each Plan and any other employee benefit plan of it and its
Affiliates, (iii) notify Lender as soon as practicable of any Reportable Event
and of any additional act or condition arising in connection with any Plan which
Borrower believes might constitute grounds for the termination thereof by the
Pension Benefit Guaranty Corporation or for the appointment by the appropriate
United States district court of a trustee to administer the Plan, and (iv)
<PAGE>
furnish to Lender, promptly upon Lender's request therefor, such
additional information concerning any Plan or any other such employee benefit
plan as may be reasonably requested.
(G) Business Records. Keep adequate records and books of
account with respect to its business activities in which proper entries are made
in accordance with GAAP reflecting all its financial transactions.
(H) Visits and Inspections. Permit representatives of Lender,
from time to time, as often as may be reasonably requested, but only during
normal business hours and without any unreasonable or material delay, hinderance
or disruption of Borrower's business, to visit and inspect the Properties of
Borrower, inspect and make extracts from its books and records and discuss with
its officers, its employees and its independent accountants, Borrower's business
assets, liabilities, financial condition, business prospects and results of
operations. Provided there shall be no ongoing and uncured Event of Default, (i)
Lender shall give Borrower at least one Business Day's notice of any such
inspection and (ii) Borrower may impose reasonable limitations on Lender's
inspection of Borrower's business operations involving Hazardous Substances to
ensure compliance with Environmental Laws and the safe handling of such
Hazardous Substances.
(I) Financial Statements. Cause to be prepared and furnished to
Lender the following:
(i) as soon as possible, but not later than ninety (90)
days after the close of each fiscal year of Borrower audited financial
statements (accompanied by an unqualified report from Borrower's certified
public accountants) of Borrower as of the end of such year prepared in
accordance with GAAP applied on a consistent basis, unless Borrower's certified
public accountants concur in any change therein and such change is disclosed to
Lender and is consistent with GAAP, certified by a firm of independent certified
public accountants of recognized standing selected by Borrower but acceptable to
Lender, which acceptance shall not be unreasonably withheld;
(ii) as soon as possible, but not later than forty-five
(45) days after the end of each fiscal quarter, unaudited interim financial
statements of Borrower as of the end of such quarter and of the portion of
Borrower's fiscal year then elapsed, certified by the chief financial officer of
Borrower as prepared in accordance with GAAP consistently applied and fairly
presenting the financial position and results of operations of Borrower for such
quarter and period (subject to normal recurring year end adjustments);
(iii) promptly after the sending or filing thereof, as the
case may be, copies of any proxy statements, financial statements or reports
which Borrower has made available to its shareholders and copies of any regular,
periodic and special reports or registration statements which Borrower files
with the Securities and Exchange Commission or any governmental authority which
may be substituted therefor, or any national securities exchange;
(iv) such other data and information (financial and
otherwise) as Lender, from time to time, may reasonably request, bearing upon or
related to the Collateral, Borrower's financial condition or results of
operations, including, without limitation, federal income tax returns of
<PAGE>
Borrower, accounts payable ledgers, and bank statements.
Concurrently with the delivery of the financial statements described
in clauses (i) and (ii) of this Section 7.1(I), Borrower shall cause to be
prepared and furnished to Lender a certificate of the chief financial officer of
Borrower in the form of Exhibit B attached hereto duly completed.
(J) Notices to Lender. Notify Lender in writing: (i) promptly
after Borrower's learning thereof, of the commencement of any litigation
affecting Borrower or any of its Properties, whether or not the claim is
considered by Borrower to be covered by insurance, and of the institution of any
administrative proceeding which would reasonably be expected to have a Material
Adverse Effect; (ii) at least thirty (30) days prior thereto, of Borrower's
opening of any new office or place of business or Borrower's closing of any
existing office or place of business, (iii) promptly after Borrower's learning
thereof, of any labor dispute to which Borrower may become a party, any strikes
or walkouts relating to any of its plants or other facilities, and the
expiration of any labor contract to which it is a party or by which it is bound;
(iv) promptly after Borrower's learning thereof, of any material default by
Borrower under any note, indenture, loan agreement, mortgage, lease, deed,
guaranty or other similar agreement relating to any Indebtedness of Borrower
exceeding $100,000; (v) promptly after Borrower's learning thereof, of any
Default or Event of Default; (vi) promptly after the occurrence thereof, of any
default by any obligor under any note or other evidence of Indebtedness payable
to Borrower in excess of $100,000; (vii) promptly after the rendition thereof,
of any judgment rendered against Borrower in excess of $100,000 and (viii)
promptly after the occurrence thereof, any resignation, retirement, termination,
appointment or substitution, whether permanent or temporary, of the chief
executive officer, chief operating officer or chief financial officer of
Borrower.
(K) Environmental Laws. Borrower will:
(i) comply in all material respects with any and all
licenses, approvals, registrations or permits required by Environmental Laws;
(ii) conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions, required
under Environmental Laws and promptly comply with all lawful orders and
directives of all Governmental Authorities respecting Environmental Laws, except
to the extent that the same are being contested in good faith by appropriate
proceedings, and
(iii) promptly notify Lender of any of the following:
(a) any Environmental Claim that Borrower receives,
including one to take or pay for any remedial, removal, response or cleanup or
other action with respect to any Hazardous Substance contained on any property
owned or leased by Borrower;
(b) any notice of any alleged violation of or knowledge by
Borrower of Environmental Law; and
(c) any commencement or threatened commencement of any
judicial or administrative proceeding or investigation alleging a violation or
<PAGE>
potential violation of any requirement of any Environmental Law by Borrower.
Borrower agrees to indemnify Lender and its directors,
officers, employees, agents and Affiliates (each such person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses
(including reasonable attorneys' fees, charges and disbursements actually
incurred) of whatever kind or nature arising out of, or in any way relating to,
the violation of, noncompliance with or liability under any Environmental Laws
applicable to the operations of Borrower or to the Collateral, or any orders,
requirements or demands of Governmental Authorities related thereto, including,
without limitation, reasonable attorneys' and consultants' fees actually
incurred, investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Indemnitee
seeking indemnification therefor. The obligations of Borrower under this Section
shall survive the termination of this Agreement indefinitely.
(L)| Further Assurances. At Lender's request, promptly execute
or cause to be executed and deliver to Lender any and all documents, instruments
and agreements deemed reasonably necessary by Lender to give effect to or carry
out the terms or intent of this Agreement or any of the other Loan Documents.
Without limiting the generality of the foregoing, if any of the Accounts, the
face value of which exceeds $5,000, arises out of a contract with the United
States of America, or any department, agency, subdivision or instrumentality
thereof, Borrower shall promptly notify Lender thereof in writing and shall
execute any instruments and take any other action required or requested by
Lender to comply with the provisions of the Federal Assignment of Claims Act.
(M) Insurance. Borrower will maintain, with financially sound
and reputable insurers, insurance with respect to its Properties and business
and against such casualties, liabilities and contingencies of such type
(including, without limitation, public liability, product liability, larceny,
embezzlement or other criminal misappropriation) and in such amounts as is
customary for similarly situated Persons engaged in businesses similar to those
of Borrower.
(N) Primary Banking Relationships. To the maximum extent
permitted by applicable law, Borrower shall maintain its primary banking
relationships with Lender.
(O) Title Policy Endorsement. Within thirty (30) days after the
date hereof, Borrower agrees to deliver or cause to be delivered to Lender, at
Borrower's expense, a title insurance endorsement to Lender's existing title
insurance policy in form and substance reasonably satisfactory to Lender.
7.2. Negative Covenants. During the term of this Agreement, and
thereafter for so long as there are any Obligations to Lender, Borrower
covenants that, unless Lender has first consented thereto in writing, it will
not:
<PAGE>
(A) Mergers; Consolidations; Acquisitions. Merge or consolidate
with any Person or acquire all or any substantial part of the Properties of any
Person.
(B) Loans. Make any loans or other advances of money (other
than for salary, travel advances, advances against commissions and other similar
advances in the ordinary course of business) to any Person, including, without
limitation, any of Borrower's Affiliates, officers or employees, except that
Borrower may have loans or other advances of money outstanding to its employees
so long as the aggregate outstanding principal balance thereof does not exceed
$150,000 at any one time.
(C) Affiliate Transactions. Enter into, or be a party to any
transaction with any Affiliate or stockholder, except in the ordinary course of
and pursuant to the reasonable requirements of Borrower's business and upon fair
and reasonable terms which are fully disclosed to Lender and are no less
favorable to Borrower than it would obtain in a comparable arm's length
transaction with a Person not an Affiliate or stockholder of Borrower.
(D) Guaranties. Guarantee, assume, endorse or otherwise, in any
way, become directly or contingently liable with respect to the Indebtedness of
any Person except by endorsement of instruments or items of payment for deposit
or collection in the ordinary course of business.
(E) Limitation on Liens. Create or suffer to exist any Lien
upon any of its Property, income or profits, whether now owned or hereafter
acquired, except: (i) Liens at any time granted in favor of Lender; (ii) Liens
for taxes (excluding any Lien imposed pursuant to any of the provisions of
ERISA) not yet due or being contested as permitted by Section 7.1(A) hereof, but
only if in Lender's reasonable judgment such Lien does not affect adversely
Lender's rights or the priority of Lender's Lien in the Collateral, (iii) Liens
securing the claims or demands of materialmen, mechanics, carriers,
warehousemen, landlords and other like Persons for labor, materials, supplies or
rentals incurred in the ordinary course of Borrower's business, but only if the
payment thereof is not at the time required (or if payment is required, only if
and for so long as the execution or other enforcement of such Liens is and
continues to be effectively stayed and bonded in a manner satisfactory to Lender
for the full amount thereof, the validity and amount of the claims secured
thereby are being actively contested in good faith and by appropriate lawful
proceedings and such Liens do not, in the aggregate, materially detract from the
value of the Property of Borrower or materially impair the use thereof in the
operation of Borrower's business) and only if such Liens are junior to the Liens
in favor of Lender; (iv) liens incurred or deposits made in the ordinary course
of business in connection with workmen's compensation, unemployment insurance,
social security and other like laws, (v) attachment, judgment and other similar
non-tax Liens arising in connection with court proceedings, but only if and for
so long as the execution or other enforcement of such Lien is and continues to
be effectively stayed and bonded on appeal in a manner satisfactory to Lender
for the full amount thereof, the validity and amount of the claims secured
thereby are being actively contested in good faith and by appropriate lawful
proceedings and such Liens do not, in the aggregate, materially detract from the
value of the Property of Borrower or materially impair the use thereof in the
operation or Borrower's business, (vi) Purchase Money Liens on fixed assets of
Borrower other than real estate and not otherwise inconsistent with the terms of
this Agreement, (vii) reservations, exceptions, easements, rights of way, and
other similar encumbrances affecting real Property, provided that, in Lender's
sole judgment, they do not in the aggregate materially detract from the value of
said Properties or materially interfere with their use in the ordinary conduct
of Borrower's business and, if said real Property constitutes Collateral, Lender
has consented thereto, and (viii) such other Liens as may be expressly disclosed
on Schedule 7.2(E) attached hereto.
<PAGE>
(F) Subsidiaries. Hereafter create or acquire any subsidiary.
(G) Business Locations. Transfer its principal place of
business or chief executive office or maintain records with respect to its
Accounts at any locations other than those at which the same are presently kept
or maintained except upon at least thirty (30) days prior written notice to
Lender and after the delivery to Lender of financing statements, if required by
Lender, in form reasonably satisfactory to Lender to perfect or continue the
perfection of Lender's Lien and security interest hereunder.
(H) Change of Business. Enter into any new business or make any
material change in any of Borrower's business objectives and purposes.
(I) Disposition of Assets. Sell, lease or otherwise dispose of
any of its Properties except for (i) sales in the ordinary course of its
business and (ii) assets no longer useful in Borrower's business or operations
and having a book value of less than $100,000 in the aggregate during the term
of this Agreement.
(J) Restricted Investment. Make or have any Restricted
Investment.
(K) Limitation on Indebtedness. Create, incur, assume or suffer
to exist any Indebtedness, except: (i) Indebtedness evidenced by or arising
under this Agreement, the Letter of Credit Agreement or any of the other Loan
Documents; (ii) unsecured current liabilities (other than those for Money
Borrowed) incurred in the ordinary course of business for current purposes,
including, without limitation, trade payables incurred in the ordinary course of
business, and which are not represented by a promissory note or other evidence
of indebtedness and are not more than thirty (30) days past due; (iii)
Indebtedness described on Schedule 7.2(K) hereto, (iv) Purchase Money
Indebtedness not otherwise inconsistent with the terms of this Agreement, and
(v) renewals or extensions of any of the Indebtedness described in items (i)
through (iv) above (but so long as any indebtedness described in items (ii),
(iii) or (iv) above is not increased after the date hereof).
(L) Minimum Tangible Net Worth. Borrower's Tangible Net Worth
shall not be less than $14,000,000 at any time during the period from the date
hereof through the end of its fiscal year ending December 31, 1996, and Borrower
shall maintain a Tangible Net Worth at all times during each fiscal year ending
after December 31, 1996 which is not less than the sum of the minimum Tangible
Net Worth of Borrower required hereunder for the immediately preceding fiscal
year plus seventy-five percent (75%) of Borrower's Net Income after taxes for
such prior year (rounded up to the nearest one hundred thousand dollars but such
sum shall not be reduced if Borrower suffers a net loss in any one year).
(M) Leverage Ratio. Borrower's Leverage Ratio shall not be more
than 1.5 to 1.0 as of the end of any fiscal quarter or fiscal year ending on or
after the date hereof.
(N) Debt Service Coverage Ratio. As of June 30, 1997, and as of
the end of each fiscal quarter thereafter, Borrower's Debt Service Coverage
Ratio for Borrower's most recently completed four (4) quarters shall not be less
than 1.5 to 1.0.
(O) Capital Expenditures. Excluding any portion of Capital
Expenditures funded by new equity capital invested in Borrower other than
retained earnings, Borrower's Capital Expenditures shall not exceed the
following amounts during the period indicated:
<PAGE>
Fiscal Year
Ending Capital Expenditures
December 31, 1996 $10,000,000
December 31, 1997 $16,000,000
December 31, 1998 $25,000,000
December 31, 1999 $30,000,000
December 31, 2000 $30,000,000
(P) Cyclotron Purchases. Borrower shall not order or purchase
additional Cyclotrons except in accordance with the following criteria: (i)
after the date hereof, and so long as no Default or Event of Default exists or
will be created by the order or purchase of Cyclotrons as provided hereunder,
Borrower may order and purchase up to four (4) new Cyclotrons; (ii) in addition,
if Borrower's revenues for any fiscal quarter equal or exceed $4,000,000,
Borrower may order and purchase an additional four (4) new Cyclotrons; (iii) in
addition, for each $500,000 by which Borrower's revenues in any fiscal quarter
exceed $4,000,000, Borrower may order and purchase up to one (1) additional
Cyclotron; (iv) the limitations set forth in subsections (i), (ii) and (iii) of
this Section 7.2(P) shall not apply to any order or purchase of a Cyclotron
which is funded by new equity capital invested in Borrower after the date
hereof; and (v) any order or purchase of a Cyclotron pursuant to subsections
(i), (ii) or (iii) of this Section 7.2(P) shall constitute a Capital Expenditure
for purposes of Section 7.2(O), except such purchases funded by new equity
capital invested in Borrower after the date hereof; and (vi) Borrower's
attainment of the requisite revenue thresholds set forth in subsections (ii) and
(iii) hereof in any fiscal quarter shall permit Borrower to order and purchase
the number of Cyclotrons referred to in such subsections only once, such that
attaining the same such revenue thresholds in any later fiscal quarter will not
permit Borrower to again order or purchase that number of Cyclotrons referred to
in such subsections.
(Q) Dividends, Distributions, Etc. Borrower shall not declare
or pay any dividend on its capital stock (other than stock dividends) or make
any payment to purchase, redeem, retire or acquire any of its capital stock or
any option, warrant or other right to acquire such capital stock if such
declaration or payment would cause a Default or Event of Default under any of
the financial covenants set forth in this Section 7.2.
(R) Funded Debt Ratio. As of the date hereof through June 30,
1997, Borrower shall not permit (a) Borrower's Indebtedness for Money Borrowed
for Borrower's most recently completed four (4) quarters divided by (b)
Borrower's EBITDA for Borrower's most recently completed four (4) quarters, to
exceed 3.0 to 1.0.
(S) Negative Negative Pledge. Borrower shall not, directly or
indirectly, enter into any agreement (other than the Loan Documents and
Permitted Liens) with any Person that prohibits or restricts or limits the
ability of Borrower to create, incur, pledge, or suffer to exist any Lien upon
any assets of Borrower.
<PAGE>
SECTION 8. CONDITIONS PRECEDENT
Notwithstanding any other provision of this Agreement or any of the
other Loan Documents, and without affecting in any manner the rights of Lender
under the other Sections of this Agreement, it is understood and agreed that
Lender will not be obligated to make any Loan under Section 2 of this Agreement
or issue any Letter of Credit under Section 3 of this Agreement unless and until
each of the following conditions has been and continues to be satisfied, all in
form and substance satisfactory to Lender and its counsel:
8.1. Documentation. Lender shall have received the following
documents, each to be in form and substance reasonably satisfactory to Lender
and its counsel:
(A) The Loan Documents duly executed, completed and delivered
by Borrower, including the Second Modification of Deeds to Secure Debt,
Assignment of Rents and Security Agreement in the form of Exhibit E attached
hereto;
(B) Certified copies of Borrower's liability insurance
policies, together with endorsements naming Lender as a co-insured;
(C) Copies of all filing receipts or acknowledgments issued by
any governmental authority to evidence any filing or recordation necessary to
perfect the Liens of Lender in the Collateral and evidence in a form reasonably
acceptable to Lender that such Liens constitute valid and perfected security
interests and Liens, having the Lien priority specified in Section 5.2(B)
hereof;
(D) A copy of the Certificate of Incorporation of Borrower, and
all amendments thereto, certified as of a recent date by the Secretary of State
of Delaware;
(E) Current good standing certificates (or certificates of
existence) for Borrower, issued by the Secretary of State of each of Delaware
and Georgia;
(F) A closing certificate signed by the Chief Financial Officer
and the Secretary or any Assistant Secretary of Borrower dated as of the date
hereof, and in the form of Exhibit F attached hereto, duly completed;
(G) An opinion of Borrower's counsel in the form of Exhibit G
attached hereto and copies of the results of a recent examination under
Borrower's name of the Uniform Commercial Code financing statement, federal and
state tax lien and judgment lien records of Gwinnett County, Georgia;
(H) Lien Subordination Agreements executed by all contractors
listed on Exhibit B to Borrower's Affidavit dated as of the date hereof executed
by Bruce W. Smith; and
(I) Such other documents, instruments and agreements as Lender
shall reasonably request in connection with the foregoing matters.
8.2. Other Conditions. The following conditions have been and shall
continue to be satisfied, in the sole judgment of Lender as of the date of and
after giving effect to such Loan or the issuance of such Letter of Credit:
(A) No Default or Event of Default shall exist;
<PAGE>
(B) Each of the conditions precedent set forth in the other
Loan Documents shall have been satisfied;
(C) Since September 30, 1996, there shall not have occurred any
material adverse change in the business, financial condition or results of
operations of Borrower, or the existence or value of any Collateral, or any
event, condition or state of facts which would reasonably be expected to have a
Material Adverse Effect;
(D) No action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before any court,
governmental agency or legislative body to enjoin, restrain or prohibit, or to
obtain damages in respect of, or which is related to or arises out of this
Agreement or the consummation of the transactions contemplated hereby or which
in Lender's reasonable discretion, would make it inadvisable to consummate the
transactions contemplated by this Agreement or any of the other Loan Documents;
and
(E) With respect to any request for a Letter of Credit,
Borrower shall have executed and delivered to Lender a completed application for
issuance of a letter of credit using Lender's then current form of application
for issuance of letters of credit.
SECTION 9. EVENTS OF DEFAULT: RIGHTS AND REMEDIES ON DEFAULT
9.1. Events of Default. The occurrence of any one or more of the
following events shall constitute an "Event of Default":
(A) Payment of Obligations. Any payment of any principal under
the Note shall not be received by Lender on the day such payment is due, or any
payment of any interest under the Note or any reimbursement obligations with
respect to any Letter of Credit, or any fees payable hereunder or under the
other Loan Documents shall not be received by Lender within five (5) Business
Days from the day such payment is due.
(B) Misrepresentations. Any warranty, representation, or other
statement made or furnished to Lender by or on behalf of Borrower or in any
instrument, certificate or financial statement furnished in compliance with or
in reference to this Agreement or any of the other Loan Documents proves to have
been false or misleading in any material respect when made or furnished.
(C) Breach of Covenants. Borrower shall fail or neglect to
perform, keep or observe (i) any covenant contained in Sections 5.2, 5.3 or 7.2
of this Agreement or (ii) any other covenant contained in this Agreement (other
than a covenant a default in the performance or observance of which is dealt
with specifically elsewhere in this Section 9.1) and the breach of such other
covenant is not cured to Lender's satisfaction within thirty (30) days after the
sooner to occur of Borrower's receipt of notice of such breach from Lender or
the date on which such failure or neglect becomes known to any officer of
Borrower.
(D) Default Under Other Loan Documents. Any event of default
shall occur under, or Borrower shall default in the performance or observance of
any term, covenant, condition or agreement contained in, any of the other Loan
Documents and such default shall continue beyond any applicable period of grace.
(E) Other Defaults. There shall occur any default or event of
default on the part of Borrower (including specifically, but without limitation,
due to non-payment) under any agreement, document or instrument to which
<PAGE>
Borrower is a party or by which Borrower or any of its Property is bound,
creating or relating to any Indebtedness if the payment or maturity of such
Indebtedness is accelerated in consequence of such event of default or demand
for payment of such Indebtedness is made and the amount at issue exceeds
$100,000.
(F) Adverse Changes. There shall occur any event or
circumstance which could be reasonably expected to have a Material Adverse
Effect.
(G) Insolvency.
(i) There shall be entered a decree or order for relief in
respect of Borrower under Title 11 of the United States Code, as now constituted
or hereafter amended, or any other applicable federal or state bankruptcy law or
other similar law, or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator, or similar official of Borrower or of any substantial
part of any of its properties, or ordering the winding-up or liquidation of the
affairs of Borrower or an involuntary petition shall be filed against Borrower
and a temporary stay entered, and (i) such petition and stay shall not be
diligently contested, or (ii) any such petition and stay shall continue
undismissed for a period of sixty (60) consecutive days.
(ii) Borrower shall file a petition, answer, or consent
seeking relief under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other applicable federal or state bankruptcy law or
other similar law, or Borrower shall consent to the institution of proceedings
thereunder or to the filing of any such petition or to the appointment or taking
of possession of a receiver, liquidator, assignee, trustee, custodian,
sequestrator, or other similar official of Borrower or of any substantial part
of any of its properties, or Borrower shall fail generally to pay its debts as
they become due, or Borrower shall take any action in furtherance of any such
action.
(H) Business Disruption; Condemnation. There shall occur a
cessation of a substantial part of the business of Borrower for a period which
significantly affects Borrower's capacity to continue its business, on a
profitable basis, or Borrower shall suffer the loss or revocation of any
governmental license or permit now held or hereafter acquired by Borrower which
is necessary to the continued or lawful operation of its business; or Borrower
shall be enjoined, restrained or in any way prevented by court, governmental or
administrative order from conducting all or any material part of its business
affairs; or any material lease or agreement pursuant to which Borrower leases,
uses or occupies any Property shall be cancelled or terminated prior to the
expiration of its stated term, or any material part of the Collateral shall be
taken through condemnation or the value of such Property shall be impaired
through condemnation unless said proceeds are remitted to Lender.
(I) ERISA. A Reportable Event shall occur which Lender, in its
sole discretion, shall determine in good faith constitutes grounds for the
termination by the Pension Benefit Guaranty Corporation of any Plan or for the
appointment by the appropriate United States district court of a trustee for any
Plan, or if any Plan shall be terminated or any such trustee shall be requested
or appointed, or if Borrower is in "default" (as defined in Section 4219(c)(5)
of ERISA) with respect to payments to a Multiemployer Plan resulting from
Borrower's complete or partial withdrawal from such Plan.
<PAGE>
(J) Litigation. Borrower shall challenge or contest in any
action, suit or proceeding the validity or enforceability of this Agreement or
any of the other Loan Documents, the legality or enforceability of any of the
Obligations or the perfection or priority of any Lien granted to Lender.
(K) Change in Control. The acquisition after the date of this
Agreement by any Person or, by any two or more Persons, acting in concert, of
beneficial ownership (within the meaning, of Rule 13-d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934) of either (a)
twenty percent (20%) or more of the outstanding voting stock of Borrower or (b)
the power to direct or cause the direction of the management and policies of the
Borrower whether through the ownership of voting securities, by contract or
otherwise.
(L) Change in Management. Any material change in the executive
management of Borrower unless such person is replaced by a person possessing
executive, financial, managerial, scientific and technical knowledge reasonably
comparable to such person.
9.2. Acceleration of the Obligations.Without in any way limiting the
right of Lender to demand payment of any portion of the Obligations payable on
demand in accordance with this Agreement, upon and after the occurrence of an
Event of Default as above provided, all or any portion of the Obligations due or
to become due from Borrower to Lender, whether under this Agreement, or any of
the other Loan Documents or otherwise, shall, at the option of Lender and
without notice or demand by Lender, become at once due and payable and Borrower
shall forthwith pay to Lender, in addition to any and all sums and charges due,
the entire principal of and interest accrued on the Obligations.
9.3. Remedies. Upon the occurrence of an Event of Default and during
the continuation thereof, Lender shall have and may exercise from time to time
the following rights and remedies:
(A) By written notice to Borrower, terminate Lender's remaining
commitment hereunder to make any further Loans to Borrower whereupon any such
commitment shall terminate immediately.
(B) All of the rights and remedies of a secured party under the
Code or under other applicable law, and all other legal and equitable rights to
which Lender may be entitled, all of which rights and remedies shall be
cumulative, and none of which shall be exclusive, and shall be in addition to
any other rights or remedies contained in this Agreement or any of the other
Loan Documents.
(C) The right to take immediate possession of the Collateral,
and (i) to require Borrower to assemble the Collateral, at Borrower's expense,
and make it available to Lender at a place designated by Lender which is
reasonably convenient to both parties, and (ii) to enter any of the premises of
Borrower or wherever any of the Collateral shall be located, and to keep and
store the same on said premises until sold (and if said premises be the Property
of Borrower, Borrower agrees not to charge Lender for storage thereof).
(D) Subject to all Federal and State regulatory laws and
Environmental Laws pertaining to the Collateral, the right to sell or otherwise
dispose of all or any Inventory in its then condition, or after any further
manufacturing or processing thereof, at public or private sale or sales, with
such notice as may be required by law, in lots or in bulk, for cash or in
<PAGE>
credit, all as Lender in its sole discretion, may deem advisable. Borrower
agrees that ten (10) days' prior written notice to Borrower of any public or
private sale or other disposition of such Collateral shall be reasonable notice
thereof and such sale shall be at such location as Lender may designate in said
notice. Lender shall have the right to conduct such sales on Borrower's
premises, without charge therefor, and such sales may be adjourned from time to
time in accordance with applicable law. Lender shall have the right, subject to
all Federal and State regulatory laws and Environmental Laws pertaining to the
Collateral, to sell, lease or otherwise dispose of such Collateral, or any part
thereof, for cash, credit or any combination thereof, and Lender may purchase
all or any part of such collateral at public or, if permitted by applicable law,
private sale and, in lieu of actual payment of such purchase price, may set off
the amount of such price against the Obligations.
(E) Lender is hereby granted a license or other right to use,
without charge, Borrower's labels, patents, copyrights, rights of use of any
name, trade secrets, trade names, trademarks and advertising matter or any
Property of a similar nature as it pertains to the Collateral, in advertising
for sale and selling any Collateral, subject to all Federal and State regulatory
laws and Environmental laws pertaining to the Collateral, and Borrower's rights
under all licenses and all franchise agreements shall inure to Lender's benefit.
(F) The proceeds realized from the sale of any Collateral may
be applied, after allowing two (2) Business Days for collection, first to the
reasonable costs, expenses and reasonable attorneys' fees and expenses actually
incurred by Lender for collection and for acquisition, completion, protection,
removal, storage, sale and delivery of the Collateral, secondly, to interest due
upon any of the Obligations, and thirdly, to the principal of the Obligations.
If any deficiency shall arise, Borrower and the Guarantor shall remain liable to
Lender therefor; and any surplus shall be paid to Borrower.
9.4. Remedies Cumulative: No Waiver. All covenants, conditions,
provisions, warranties, guaranties, indemnities, and other undertakings of
Borrower contained in this Agreement and the other Loan Documents, or in any
document referred to herein or contained in any agreement supplementary hereto
or in any schedule given to Lender or contained in any other agreement between
Lender and Borrower, heretofore, concurrently, or hereafter entered into, shall
be deemed cumulative to and not in derogation or substitution of any of the
terms, covenants, conditions, or agreements of Borrower herein contained. The
failure or delay of Lender to exercise or enforce any rights, Liens, powers, or
remedies hereunder or under any of the aforesaid agreements or other documents
or security or Collateral shall not operate as a waiver of such Liens, rights,
powers and remedies, but all such Liens, rights, powers, and remedies shall
continue in full force and effect until all Loans and all other Obligations
owing or to become owing from Borrower to Lender shall have been fully
satisfied, and all Liens, rights, powers, and remedies herein provided for are
cumulative and none are exclusive.
SECTION 10. MISCELLANEOUS
10.1. Power of Attorney. Borrower hereby irrevocably designates,
makes, constitutes and appoints Lender (and all Persons designated by Lender) as
Borrower's true and lawful attorney (and agent-in-fact) and Lender, or Lender's
agent, may, without notice to Borrower and in either Borrower's or Lender's
name, but at the cost and expense of Borrower:
<PAGE>
(A) At such time or times hereafter as Lender or said agent, in
its sole discretion, may determine, endorse Borrower's name on any checks,
notes, acceptances, drafts, money orders or any other evidence of payment or
proceeds of the Collateral which come into the possession of Lender or under
Lender's control, and
(B) At such time or times upon or after the occurrence of an
Event of Default as Lender or its agent in its sole discretion may determine:
(i) demand payment of the Accounts from the Account Debtors, enforce payment of
the Accounts by legal proceedings or otherwise, and generally exercise all of
Borrower's rights and remedies with respect to the collection of the Accounts,
(ii) settle, adjust, compromise, discharge or release any of the Accounts or
other Collateral or any legal proceedings brought to collect any of the Accounts
or other Collateral; (iii) sell or assign any of the Accounts and other
Collateral upon such terms, for such amounts and at such time or times as Lender
deems advisable, (iv) take control, in any manner, of any item of payment or
proceeds relating to any Collateral, (v) prepare, file and sign Borrower's name
to a proof of claim in bankruptcy or similar document against any Account Debtor
or to any notice of lien, assignment or satisfaction of lien or similar document
in connection with any of the Collateral, (vi) receive, open and dispose of all
mail addressed to Borrower and to notify postal authorities to change the
address for delivery thereof to such address as Lender may designate, (vii)
endorse the name of Borrower upon any of the items of payment or proceeds
relating to any Collateral and deposit the same to the account of Lender on
account of the Obligations, (viii) endorse the name of Borrower upon any chattel
paper, document, instrument, invoice, freight bill, bill of lading or similar
document or agreement relating to the Accounts, Inventory and any other
Collateral, (ix) use Borrower's stationery and sign the name of Borrower to
verifications of the Accounts and notices thereof to Account Debtors; (x) use
the information recorded on or contained in any data processing equipment and
computer hardware and software relating to the Accounts, Inventory and any other
Collateral and to which Borrower has access, (xi) make and adjust claims under
policies of insurance, and (xii) do all other acts and things necessary, in
Lender's determination, to fulfill Borrower's obligations under this Agreement.
10.2. Indemnity. Borrower hereby agrees to indemnify Lender and hold
Lender harmless from and against any liability, loss, damage, suit, action or
proceeding ever suffered or incurred by Lender as the result of Borrower's
failure to observe, perform or discharge Borrower's duties hereunder. Without
limiting the generality of the foregoing, this indemnity shall extend to any
claims asserted against Lender by any Person under any Environmental Laws or
similar laws by reason of Borrower's or any other Person's failure to comply
with laws applicable to solid or hazardous waste materials or other toxic
substances.
10.3. Modification of Agreement: Sale of Interest. This Agreement may
not be modified, altered or amended, except by an agreement in writing signed by
Borrower and Lender. Borrower may not sell, assign or transfer any interest in
this Agreement or any of the other Loan Documents, or any portion thereof,
including, without limitation, Borrower's rights, title, interests, remedies,
powers, and duties hereunder or thereunder. Borrower hereby consents to Lender's
participation, sale, assignment, transfer or other disposition, at any time or
times hereafter, of this Agreement and any of the other Loan Documents, or of
any portion hereof or thereof, including, without limitation, Lender's rights,
title, interests, remedies, powers, and duties hereunder or thereunder;
provided, however, that so long as no Default or Event of Default is then
existing, Lender shall hold a majority of the outstanding Loans hereunder.
<PAGE>
10.4. Increased Costs.
(A) If any applicable law, rule, or regulation, or any change
therein, or any interpretation or change in interpretation or administration
thereof by any governmental authority, central bank, or comparable agency
charged with the interpretation or administration thereof or compliance by
Lender with any request or directive (whether or not having the any such
authority, central bank, or comparable agency:
(i) Shall subject Lender to any tax, duty, or other charge
with respect to its obligation to make LIBOR Advances, or its LIBOR Advances, or
shall change the basis of taxation of payments to Lender of the principal of or
interest on its LIBOR Advances or in respect of any other amounts due under this
Agreement in respect of its LIBOR Advances or its obligation to make LIBOR
Advances (except for changes in the rate of tax on the overall net income of
Lender imposed by the jurisdiction in which Lender's principal executive office
is located); or
(ii) Shall impose, modify, or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of the
Federal Reserve System, but excluding any included in an applicable Adjusted
LIBOR rate), special deposit, capital adequacy, assessment, or other requirement
or condition against assets of, deposits with or for the account of, or
commitments or credit extended by Lender, or shall impose on Lender or the
eurodollar interbank borrowing market any other condition affecting its
obligation to make such LIBOR Advances or its LIBOR Advances; and the result of
any of the foregoing is to increase the cost to Lender of making or maintaining
any such LIBOR Advances, or to reduce the amount of any sum received or
receivable by Lender under this Agreement or under its Note with respect
thereto, and such increase is not given effect in the determination of LIBOR
then, on the earlier of demand by Lender or the Maturity Date, Borrower agrees
to pay to Lender such additional amount or amounts as will compensate Lender for
such increased costs. Lender will promptly notify Borrower of any event of which
it has knowledge, occurring after the date hereof, which will entitle Lender to
compensation pursuant to this Section 10.4 and will designate a different
lending office if such designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the sole judgment of Lender, be otherwise
disadvantageous to Lender.
(B) A certificate of Lender claiming compensation under this
Section 10.4 and setting forth the additional amount or amounts to be paid to it
hereunder and calculations therefor shall be conclusive in the absence of
manifest error. If the Lender demands compensation under this Section 10.4,
Borrower may at any time, upon at least five (5) Business Days' prior notice to
Lender, prepay in full the then outstanding affected LIBOR Advances of Lender,
together with accrued interest thereon to the date of prepayment, along with any
reimbursement required under Section 2.4(H) hereof. Concurrently with prepaying
such LIBOR Advances, Borrower shall borrow a Treasury Rate Advance, or a LIBOR
Advance not so affected, from Lender, and Lender shall make the advance in an
amount such that the outstanding principal amount of the Note held by Lender
shall equal the outstanding principal amount of such Note immediately prior to
such prepayment.
10.5. Reimbursement of Expenses. If, at any time or times prior or
subsequent to the date hereof, regardless of whether or not an Event of Default
then exists or any of the transactions contemplated hereunder are concluded,
Lender employs counsel for advice or other representation, or incurs legal
<PAGE>
expenses or other costs or out-of-pocket expenses in connection with: (A) the
negotiation and preparation of this Agreement or any of the other Loan Documents
any amendment of or modification of this Agreement or any of the other Loan
Documents, or, (B) the administration of this Agreement or any of the other Loan
Documents and the transactions contemplated hereby and thereby, (C) any
litigation, contest, dispute, suit, proceeding or action (whether instituted by
Lender, Borrower or any other Person) in any way relating to the Collateral,
this Agreement or any of the other Loan Documents or Borrower's affairs, (D) any
attempt to enforce any rights of Lender against Borrower or any other Person
which may be obligated to Lender by virtue of this Agreement or any of the other
Loan Documents, including, without limitation, the Account Debtors, or (E) any
attempt to inspect, verify, protect, preserve, restore, collect, sell, liquidate
or otherwise dispose of or realize upon the Collateral, then, in any such event,
the reasonable attorneys' fees actually incurred arising from such services and
all expenses, costs, charges and other fees of such counsel or of Lender or
relating to any of the events or actions described in this Section shall be
payable, on demand, by Borrower to Lender, and shall be additional Obligations
hereunder secured by the Collateral. Without limiting the generality of the
foregoing, such expenses, costs, charges and fees may include accountant' fees,
costs, and expenses, court costs and expenses, photocopying and duplicating
expenses, court reporter fees, costs and expenses; long distance telephone
charges; air express charges, telegram charges, secretarial over-time charges,
and expenses for travel, lodging and food paid or incurred in connection with
the performance of such legal services. Additionally, if any taxes (excluding
taxes imposed upon or measured by the net income of Lender) shall be payable on
account of the execution or delivery of this Agreement, or the execution,
delivery, issuance or recording of any of the other Loan Documents, or the
creation of any of the Obligations hereunder, by reason of any existing or
hereafter enacted federal or state statute, Borrower will pay all such taxes,
including, but not limited to, any interest and penalties thereon, and will
indemnify and hold Lender harmless from and against liability in connection
therewith.
10.6. Indulgences Not Waivers. Lender's failure, at any time or times
hereafter, to require strict performance by Borrower of any provision of this
Agreement shall not waive, affect or diminish any right of Lender thereafter to
demand strict compliance and performance therewith. Any suspension or waiver by
Lender of an Event of Default by Borrower under this Agreement or any of the
other Loan Documents shall not suspend, waive or affect any other Event of
Default by Borrower under this Agreement or any of the other Loan Documents,
whether the same is prior or subsequent thereto and whether of the same or of a
different type. None of the undertakings, agreements, warranties, covenants and
representations of Borrower contained in this Agreement or any of the other Loan
Documents and no Event of Default by Borrower under this Agreement or any of the
other Loan Documents shall be deemed to have been suspended or waived by Lender,
unless such suspension or waiver is by an instrument in writing specifying such
suspension or waiver and is signed by a duly authorized representative of Lender
and directed to Borrower.
10.7. Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
10.8. Successors and Assigns. This Agreement and the other Loan
Documents shall be binding upon and inure to the benefit of the successors and
assigns of Borrower and Lender. This provision, however, shall not be deemed to
<PAGE>
modify Section 10.3 hereof.
10.9. Cumulative Effect; Conflict of Terms. The provisions of the
other Loan Documents are hereby made cumulative with the provisions of this
Agreement. Except as otherwise provided in any of the other Loan Documents by
specific reference to the applicable provision of this Agreement, if any
provision contained in this Agreement is in direct conflict with, or
inconsistent with, any provision in any of the other Loan Documents, the
provision contained in this Agreement shall govern and control.
10.10.Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which counterparts taken together shall constitute but
one and the same instrument.
10.11.Notices. Except as otherwise provided herein, all notices,
requests and demands to or upon a party hereto to be effective shall be in
writing and shall be sent by certified or registered mail, return receipt
requested and, unless otherwise expressly provided herein, shall be deemed to
have been validly served, given or delivered when delivered against receipt or
one Business Day after deposit in the mail, postage prepaid, addressed as
follows:
(A) If to Lender: NationsBank, N.A. (South)
600 Peachtree Street, N.E. - 19th Floor
Atlanta, Georgia 30308
Financial Strategies Group
Telecopy: (404) 607-6323
(B) If to Borrower: Theragenics Corporation
5325 Oakbrook Parkway
Norcross, Georgia 30093
Attn: Bruce Smith
Telecopy: (770) 381-8447
With a copy to: Powell, Goldstein, Frazer & Murphy
16th Floor
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn: Richard H. Miller, Esq.
Douglas S. Gosden, Esq.
Telecopy: (404) 572-6999
or to such other address as each party may designate for itself by like notice
given in accordance with this Section 10.11; provided, however, that any notice,
request or demand to or upon Lender pursuant to Section 2.2 shall not be
effective until received by Lender.
10.12.Lender's Consent. Whenever Lender's consent is required to be
obtained under this Agreement or any of the other Loan Documents as a condition
to any action, inaction, condition or event, Lender shall be authorized to give
or withhold such consent in its sole and absolute discretion and to condition
its consent upon the giving of additional collateral security for the
Obligations, the payment of money or any other matter.
<PAGE>
10.13.Demand Obligations. Nothing in this Agreement shall affect or
abrogate the demand nature of any portion of the Obligations expressly made
payable on demand by this Agreement or by any instrument evidencing or securing
same, and the occurrence of an Event of Default shall not be a prerequisite for
Lender's requiring payment of such Obligations.
10.14.Time of Essence. Time is of the essence of this Agreement and
the other Loan Documents.
10.15.Entire Agreement. This Agreement and the other Loan Documents,
together with all other instruments, agreements and certificates executed by the
parties in connection therewith or with reference thereto, embody the entire
understanding and agreement between the parties hereto and thereto with respect
to the subject matter hereof and thereof and supersede the Amended and Restated
Loan Agreement and all other prior agreements, understandings and inducements,
whether express or implied, oral or written. Nothing contained herein is
intended (or shall be construed) to be a novation of any indebtedness evidenced
by the Amended and Restated Loan Agreement or to affect or modify the perfection
or priority of Lender's security interests in, security titles to or other liens
on any Collateral.
10.16.Set-Off. In addition to any rights now or hereafter granted
under this Agreement or otherwise, and not by way of limitation of any such
rights, upon the occurrence of an Event of Default and during the continuation
thereof, Lender and any subsequent holder or holders of the Note are hereby
authorized by Borrower at any time or from time to time, without notice to
Borrower or to any other Person, any such notice being hereby expressly waived,
to set-off and to appropriate and apply any and all deposits (general or
special, time or demand, including, but not limited to, Indebtedness evidenced
by certificates of deposit, in each case whether matured or unmatured) and any
other Indebtedness at any time held or owing by the Lender or such holder to or
for the credit or the account of Borrower, against and on account of the
obligations and liabilities of Borrower, to Lender or such holder under this
Agreement, the Note, and any other Loan Document, including, but not limited to,
all claims of any nature or description arising out of or connected with this
Agreement, the Note, or any other Loan Document, irrespective of whether or not
(a) the Lender or the holder of the Note shall have made any demand hereunder or
(b) Lender shall have declared the principal of and interest on the Loans and
Note and other amounts due hereunder to be due and payable as permitted by
Section 9.2 hereof and although said obligations and liabilities, or any of
them, shall be contingent or unmatured. Any sums obtained by Lender or by any
subsequent holder of the Note shall be subject to the application of payment
provisions of Article 2 hereof.
10.17.GOVERNING LAW: CONSENT TO FORUM. THIS AGREEMENT HAS BEEN
NEGOTIATED, EXECUTED AND DELIVERED AT AND SHALL BE DEEMED TO HAVE BEEN MADE IN
ATLANTA, GEORGIA. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA PROVIDED, HOWEVER THAT IF ANY
OF THE COLLATERAL SHALL BE LOCATED IN ANY JURISDICTION OTHER THAN GEORGIA, THE
LAWS OF SUCH JURISDICTION SHALL GOVERN THE METHOD, MANNER AND PROCEDURE FOR
FORECLOSURE OF LENDER'S LIEN UPON SUCH COLLATERAL AND THE ENFORCEMENT OF
LENDER'S OTHER REMEDIES IN RESPECT OF SUCH COLLATERAL TO THE EXTENT THAT THE
LAWS OF SUCH JURISDICTION ARE DIFFERENT FROM OR INCONSISTENT WITH THE LAWS OF
GEORGIA. AS PART OF THE CONSIDERATION FOR NEW VALUE THIS DAY RECEIVED, BORROWER
<PAGE>
HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN
FULTON COUNTY OF THE STATE OF GEORGIA AND WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY
CERTIFIED OR REGISTERED MAIL DIRECTED TO BORROWER AT THE ADDRESS STATED IN
SECTION 10.11 HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON
ACTUAL RECEIPT THEREOF. BORROWER WAIVES ANY OBJECTION TO JURISDICTION AND VENUE
OF ANY ACTION INSTITUTED AGAINST IT AS PROVIDED HEREIN AND AGREES NOT TO ASSERT
ANY DEFENSE BASED ON LACK OF JURISDICTION OR VENUE.
10.18.WAIVERS BY BORROWER. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS
AGREEMENT, BORROWER WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW
(i) THE RIGHT TO TRIAL BY JURY (WHICH LENDER HEREBY ALSO WAIVES) IN ANY ACTION,
SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO ANY OF
THE LOAN DOCUMENTS, THE OBLIGATIONS OR THE COLLATERAL, (ii) PRESENTMENT, DEMAND
AND PROTEST AND NOTICE OF PRESENTMENT, PROTEST, DEFAULT, NON PAYMENT, MATURITY,
RELEASE, COMPROMISE, SETTLEMENT, EXTENSION OR RENEWAL OF ANY OR ALL COMMERCIAL
PAPER, ACCOUNTS, CONTRACT RIGHTS, DOCUMENTS, INSTRUMENTS, CHATTEL PAPER AND
GUARANTIES AT ANY TIME HELD BY LENDER ON WHICH BORROWER MAY IN ANY WAY BE LIABLE
AND HEREBY RATIFIES AND CONFIRMS WHATEVER LENDER MAY DO IN THIS REGARD; (iii)
NOTICE PRIOR TO TAKING POSSESSION OR CONTROL OF THE COLLATERAL OR ANY BOND OR
SECURITY WHICH MIGHT BE REQUIRED BY ANY COURT PRIOR TO ALLOWING LENDER TO
EXERCISE ANY OF LENDER'S REMEDIES, INCLUDING THE ISSUANCE OF AN IMMEDIATE WRIT
OF POSSESSION; (iv) THE BENEFIT OF ALL VALUATION, APPRAISEMENT AND EXEMPTION
LAWS; AND (v) ANY RIGHT BORROWER MAY HAVE UPON PAYMENT IN FULL OF THE
OBLIGATIONS TO REQUIRE LENDER TO TERMINATE ITS SECURITY INTEREST IN THE
COLLATERAL OR IN ANY OTHER PROPERTY OF BORROWER UNTIL TERMINATION OF THIS
AGREEMENT IN ACCORDANCE WITH ITS TERMS AND THE EXECUTION BY BORROWER, AND BY ANY
PERSON WHOSE LOANS TO BORROWER ARE USED IN WHOLE OR IN PART TO SATISFY THE
OBLIGATIONS, OF AN AGREEMENT INDEMNIFYING LENDER FROM ANY LOSS OR DAMAGE LENDER
MAY INCUR AS THE RESULT OF DISHONORED CHECKS OR OTHER ITEMS OF PAYMENT RECEIVED
BY LENDER FROM BORROWER OR ANY ACCOUNT DEBTOR AND APPLIED TO THE OBLIGATIONS.
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed in Atlanta,
Georgia, on the day and year specified at the beginning hereof.
ATTEST: THERAGENICS CORPORATION
/s/ Lynn M. Rogers /s/ Bruce W. Smith
Title: Assistant Secretary Title: Secretary, Treasurer &
Chief Financial Officer
(CORPORATE SEAL)
NATIONSBANK, N.A. (SOUTH)
/s/ W. Brad Davis
W. Brad Davis
Senior Vice President
<PAGE>
REPLACEMENT REVOLVING CREDIT NOTE
December 9, 1996 $11,000,000.00
FOR VALUE RECEIVED, the undersigned (hereinafter referred to as
"Borrower") promises to pay to the order of NATIONSBANK, N.A. (SOUTH), a Georgia
banking corporation, successor by merger to Bank South (hereinafter referred to
as "Lender") at Lender's office located in Atlanta, Georgia, or at such other
place as the holder hereof may designate, the principal sum of ELEVEN MILLION
AND NO/100 DOLLARS ($11,000,000.00), or so much thereof as shall have been
advanced here against and shall be outstanding, including all fees or expenses
chargeable thereon to Borrower under that certain Second Amended and Restated
Loan and Security Agreement, dated as of the date hereof, between Borrower and
Lender (hereinafter, together with all supplements, riders, amendments, exhibits
or schedules thereto, referred to as the "Loan Agreement"), together with
interest on so much of the principal balance of this Note as may be outstanding
and unpaid from time to time. This Revolving Credit Note (this "Note") is the
Revolving Credit Note referred to in, and is issued pursuant to, the Loan
Agreement and is entitled to all of the benefits and security of the Loan
Agreement and the other Loan Documents described therein, but nothing in the
Loan Agreement shall affect the demand nature of this Note. All capitalized
terms used herein, unless otherwise specifically defined in this Note, shall
have the meanings ascribed to them in the Loan Agreement. Borrower shall repay
principal outstanding hereunder and interest as provided in the Loan Agreement.
The Borrower shall be entitled to borrow, re-pay and re-borrow funds hereunder
subject to the terms and conditions of the Loan Agreement. Prepayment of the
principal amount of any Loan may be made only as provided in the Loan Agreement.
The Borrower hereby promises to pay interest on the unpaid principal amount
hereof as provided in Section 2.4 of the Loan Agreement. Interest under this
Note shall also be due and payable when this Note shall become due (whether at
maturity, by reason of acceleration or otherwise). Overdue principal and, to the
extent permitted by law, overdue interest, shall bear interest payable on DEMAND
at the default rate as set forth in the Loan Agreement. The occurrence of any
Event of Default under (and as such term is defined in) the Loan Agreement shall
also constitute an event of default by Borrower under this Note (herein also
called an "Event of Default"). Upon the occurrence of an Event of Default,
Lender, at its option, without demand or notice of any kind, may declare this
Note immediately due and payable, whereupon all outstanding principal and
accrued interest shall become immediately due and payable; provided, however,
that upon the occurrence of any Event of Default described in Section 9.1(G) of
- --------------------------------------------------------------------------------
THIS REVOLVING NOTE IS MADE AND GIVEN IN REPLACEMENT OF, AND AS AN AMENDMENT AND
RESTATEMENT OF (1) A CERTAIN REVOLVING CREDIT NOTE DATED DECEMBER 13, 1995, IN
THE ORIGINAL PRINCIPAL AMOUNT OF $4,000,000, ISSUED BY BORROWER TO THE ORDER OF
LENDER, (2) A CERTAIN TERM NOTE DATED SEPTEMBER 14, 1994 IN THE ORIGINAL
PRINCIPAL AMOUNT OF $2,100,000 ISSUED BY BORROWER TO THE ORDER OF LENDER AND (3)
A CERTAIN LINE OF CREDIT NOTE DATED DECEMBER 13, 1995 IN THE ORIGINAL PRINCIPAL
AMOUNT OF $1,000,000 ISSUED BY BORROWER TO THE ORDER OF LENDER AND IS NOT
INTENDED TO BE A NOVATION.
<PAGE>
the Loan Agreement, this Note, without demand, notice or declaration by Lender
of any kind, shall automatically and immediately become due and payable.
In case this Note is collected by or through an attorney-at-law, all
costs of such collection incurred by the Lender, including reasonable attorney's
fees, shall be paid by Borrower.
Time is of the essence of this Note.
Demand, presentment, notice, notice of demand, notice for payment,
protest and notice of dishonor are hereby waived by each and every maker,
guarantor, surety and other person or entity primarily or secondarily liable on
this Note. Lender shall not be deemed to waive any of its rights under this Note
unless such waiver be in writing and signed by Lender. No delay or omission by
Lender in exercising any of its rights under this Note shall operate as a waiver
of such rights and a waiver in writing on one occasion shall not be construed as
a consent to or a waiver of any right or remedy on any future occasion.
This Note shall be governed by and construed and enforced in accordance
with the laws of the State of Georgia (without giving effect to its conflicts of
law rules). Whenever possible, each provision of this Note shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Note shall be prohibited by or invalid under applicable law,
such provision shall be ineffective on to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Note.
Words importing the singular number hereunder shall include the plural
number and vice versa, and any pronoun used herein shall be deemed to cover all
genders. The word "Lender" as used herein shall include transferees, successors
and assigns of Lender, and all rights of Lender hereunder shall inure to the
benefit of its transferees, successors and assigns. All obligations of Borrower
hereunder shall bind Borrower's successors and assigns.
SIGNED, SEALED AND DELIVERED by the undersigned Borrower as of the day
and year first above set forth.
THERAGENICS CORPORATION
(CORPORATE SEAL)
Attest:
By: /s/ Bruce W. Smith
Title: Secretary, Treasurer &
/s/ Lynn M. Rogers Chief Financial Officer
Title: Assistant Secretary
