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EXHIBIT 2(d)
SECURITY AGREEMENT
United Radiology Associates, Inc., a Texas corporation ("URA"), in
consideration of the loan by US Diagnostic Inc., a Delaware corporation (the
"Secured Party"), to URA, and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, hereby grants to the Secured
Party a lien upon and security interest in all of the assets of URA and each of
its direct and indirect wholly-owned subsidiaries listed on Schedule A to this
Security Agreement (collectively, the "Subsidiaries" and together with URA, the
"Debtors") now owned or hereafter acquired by any of the Debtors and all
proceeds (including insurance proceeds), products and all additions,
substitutions, replacements and accessions of or to any of the assets of the
Debtors (collectively, the "Collateral").
This Security Agreement is entered into to secure payment of URA"s
promissory note (the "Note") to Secured Party in the principal amount of One
Million, Eight Hundred and Fifty Thousand and No/100 U.S. Dollars
($1,850,000.00), together with the interest and other charges described in the
Note, a copy of which is attached as Exhibit 1. The obligation of URA under the
Note is hereinafter referred to as the "Obligation."
Incident thereto, URA agrees with Secured Party as follows:
1. URA represents and warrants that:
(a) The security interest granted to Secured Party in the Collateral
shall constitute a second lien and the Debtors are the lawful owner of such
Collateral and have good right to pledge, sell, assign, co-sign, transfer and
create a security interest in the same;
(b) The Collateral shall continue to be free from any pledges, liens,
encumbrances and security interests or other claims in favor of others (except
the first lien in respect of the Collateral granted to DVI Financial Services
Inc. ("DVI") on February 12, 1999), and URA will, and shall cause the
Subsidiaries to, warrant and, at Secured Party's request, defend the same from
all claims and demands of all persons except DVI;
(c) URA will not, and shall cause the Subsidiaries not to, permit any
of the Collateral to be levied upon under legal process except in respect of the
first lien in the Collateral granted to DVI;
(d) URA will not, and shall cause the Subsidiaries not to, sell,
transfer, or otherwise dispose of any of the Collateral or any interest therein,
or offer to do so, except in the
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ordinary course of business without the prior written consent of Secured Party,
which consent shall not be unreasonably withheld;
(e) URA will not, and shall cause the Subsidiaries not to, permit
anything to be done that may impair the value of any of the Collateral or any of
the security intended to be afforded by this Security Agreement.
2. Upon request and as instructed by Secured Party, URA agrees, and
shall cause the Subsidiaries, to comply with the requirements of all applicable
state and federal laws in order to grant to Secured Party a valid second lien
upon, and a security interest in, the Collateral described herein, or which may
be described in any amendment supplementary hereto.
3. URA will pay, and shall cause the Subsidiaries to pay, before the
same become delinquent, all taxes, assessments and other charges lawfully and
validly levied or assessed upon the Collateral or any part thereof, and URA will
pay any and all fees, costs and expenses, of whatever kind and nature, which
Secured Party may incur in filing public notices, as well as expenses incurred
by Secured Party, including reasonable attorneys' fees and legal expenses, in
protecting, maintaining, preserving, enforcing or foreclosing the security
interest granted to Secured Party hereunder, whether through judicial
proceedings or otherwise, or in defending or prosecuting any actions or
proceedings arising out of or relating to this transaction, promptly after URA
shall have been notified by Secured Party of the amount of such fees, costs or
expenses.
4. URA agrees to promptly notify Secured Party of any change in its or
any of the Subsidiaries" mailing address or principal place of business to
permit a prompt refiling of any outstanding notices, if necessary. URA shall
also advise Secured Party within 30 days of URA's knowledge of any new facts
which, under the applicable provisions of law, would affect the priority of the
secured interest granted to Secured Party by this instrument.
5. Secured Party may discharge taxes, liens or security interests or
other encumbrances at any time levied or placed on the Collateral, may pay for
insurance on the Collateral and may pay for the maintenance and preservation of
the Collateral in the event any of the Debtors fails to fulfill its obligations
in connection therewith. All such sums, as well as costs, advanced by Secured
Party pursuant to this Security Agreement shall be due immediately from URA to
Secured Party, shall be secured hereby and shall bear interest at the default
rate specified in the Note from the date of payment by Secured Party until the
date of repayment by URA.
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6. URA shall be in default under this Security Agreement upon the
happening of any of the following events or conditions and URA's failure to cure
such default within ten days after receipt of written notice of a monetary
default or within 15 days after receipt of written notice of a non-monetary
default:
(a) Default in the payment or performance of any obligation, covenant
or liability contained or referred to herein, or if there should occur an event
of default under the Note or any other obligation secured hereby;
(b) If any written warranty, representation or statement pertaining to
Collateral secured by this Security Agreement, made or furnished to Secured
Party by any of the Debtors, or by any other party or agency clearly authorized
by the Debtors to make such written warranty, representation or statement,
proves to have been false in any material respect when made or furnished;
(c) Any of the Debtors makes an assignment for the benefit of
creditors, institutes or suffers the institution of a case or other proceeding
under any applicable bankruptcy law, or any similar order or decree having the
same general purpose, and which, if involuntary, is not dismissed, stayed,
discharged or vacated within 90 days thereafter or suffers the attachment,
execution or other judicial seizure of all or any substantial part of its assets
remaining undismissed or undischarged for a period of 30 days after the levy
thereof;
(d) Entry of any judgment against any of the Debtors for more than
$100,000;
(e) Dissolution, merger or transfer of a substantial part of the
property of any of the Debtors;
(g) Appointment of a receiver for the Collateral or any part thereof or
for any property in which any of the Debtors has an interest; or
(h) A default occurs under any of the financing documents executed by
URA or any of the Subsidiaries in favor of DVI.
7. (a) Upon the occurrence of any event of default, as described above,
and at any time thereafter, Secured Party may declare the Obligation secured
hereby immediately due and payable, and shall have, in addition to all other
remedies available at law or equity, the remedies of a secured party under the
Uniform Commercial Code as adopted in Texas. Secured Party may, with judicial
assistance, take possession of the Collateral and URA will not, and shall cause
the Subsidiaries not to, resist or interfere with such action. Unless the
Collateral is perishable or threatens to decline speedily in value or is a type
customarily sold on a recognized market, Secured Party will give the Debtors
reasonable notice of the time and place of any public sale thereof, or of the
time after which any private sale or any other intended disposition thereof is
to be made. The requirements of reasonable notice shall be met if such notice is
mailed, postage prepaid, to the business address of URA stated on the signature
page of this Security Agreement at least 15 days before the time of the sale or
disposition. Expenses of retaking, holding, preparing for sale, selling or the
like shall include the Secured Party's reasonable attorneys' fees and legal
expenses.
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(b) In case of the exercise of any of the rights of Secured Party
hereunder, all Collateral and other property or security given to secure the
indebtedness secured hereby may be offered for sale for one total price, and the
proceeds of such sale accounted for in one account without distinction between
items of security or without assigning to them any proportion of the proceeds of
such sale. URA insofar as it legally may so do, hereby waives, and shall cause
each of the Subsidiaries insofar as they legally may do so, to waive, the
application of any doctrine of marshaling of the Collateral, or such other
property or security, which may be offered for sale separately, and sales may be
held from time to time, and all powers of Secured Party shall not be fully
executed until all Collateral, and such other property or security, shall have
been sold.
8. No waiver by Secured Party of any default shall operate as a waiver
of any other default or of the same default on a future occasion. All rights of
Secured Party hereunder shall inure to the benefit of its successors and
assigns; and all obligations of URA shall bind its successors and assigns.
9. The covenants and agreements contained in this Security Agreement
shall extend to and inure to the benefit of, and be binding upon, the respective
successors, heirs, executors, administrators and assigns of the parties hereto,
the same as if they were in every case named and expressed.
10. A reproduction of this Security Agreement or any financing
statement relating hereto shall be sufficient as a financing statement and may
be filed in any public office as a financing statement.
11. Unless otherwise indicated herein, the Secured Party's discretion
under this Security Agreement shall be exercised reasonably to the extent
required by law.
12. URA shall, and shall cause each of the Subsidiaries to, execute,
deliver and record a UCC-1 Financing Statement with the Secretary of State of
Texas.
13. The parties agree to execute, acknowledge, deliver and file, or
cause to be executed, acknowledged, delivered and filed, all further
instruments, agreements or documents as may be necessary to consummate the
transactions provided for in this Agreement and to do all further acts necessary
to carry out the purpose and intent of this Agreement.
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas without reference to its conflicts of law
principles. Venue and jurisdiction of all actions relating to the performance or
interpretation of this Agreement may be brought only in the courts of the State
of Texas. The parties consent to personal jurisdiction in the courts described
in this Section for the purpose of all actions, and waive all objections to
venue and the right to assert that a court chosen under this Section is improper
based on the doctrine of forum non conveniens.
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15. If litigation is brought concerning this Agreement, the prevailing
party shall be entitled to receive from the non-prevailing party, and the
non-prevailing party shall upon final judgment and the expiration of all appeals
immediately pay upon demand all reasonable attorneys' fees and expenses of the
prevailing party. Except as otherwise provided in this Agreement, each party
shall pay its own legal fees and disbursements and other expenses incurred in
connection with this Agreement.
16. This Agreement constitutes the entire understanding of the parties
and supersedes all prior discussions, negotiations, agreements and
understandings, whether oral or written, with respect to its subject matter.
This Agreement may be modified only by a written instrument properly executed by
all of the parties.
17. If any one or more of the provisions of this Agreement is held
invalid, illegal or unenforceable, the remaining provisions of this Agreement
shall be unimpaired, and the invalid, illegal or unenforceable provision shall
be replaced by a mutually acceptable valid, legal and enforceable provision
which comes closest to the intent of the parties.
18. This Agreement may be executed by the parties in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Security Agreement
as of February 12, 1999.
UNITED RADIOLOGY ASSOCIATES, INC.
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, President
Address:
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US DIAGNOSTIC INC.
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, Chief Executive
Officer and President
Address:
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SCHEDULE A
U.S. Imaging, Inc.
Fort Bend Imaging, Inc.
Xxxxxx Street Imaging, Inc.
Steeplechase Diagnostic Center, Inc.
East Side Imaging, Inc.
Gulf Coast Imaging Services Inc.
San Antonio Diagnostic Imaging, Inc.
all Texas corporations
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