Exhibit 10.39
AMENDMENT NO. 5 AND LIMITED WAIVER TO CREDIT AGREEMENT
This AMENDMENT NO. 5 AND LIMITED WAIVER TO CREDIT AGREEMENT (this
"Amendment"), dated as of February 22, 2008, by and among RADNET MANAGEMENT,
INC., a California corporation (the "Borrower"), the other persons designated as
Credit Parties on the signature pages hereof, GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation, as agent ("Agent") and the Persons
signatory thereto from time to time as Lenders. Unless otherwise specified
herein, capitalized terms used in this Amendment shall have the meanings
ascribed to them in the Credit Agreement (each as hereinafter defined).
RECITALS
WHEREAS, the Borrower, the Credit Parties, Agent and Lenders have
entered into that certain Credit Agreement dated as of November 15, 2006 (as
amended by that certain (i) Limited Waiver and Amendment No. 1 to Credit
Agreement dated as of Xxxxx 0, 0000, (xx) Amendment No. 2 to Credit Agreement
dated as of May 30, 2007, (iii) Amendment No. 3 to Credit Agreement dated as of
August 23, 2007 and (iv) Amendment No. 4 to Credit Agreement dated as of
December 3, 2007, and as further amended, supplemented, restated or otherwise
modified from time to time, the "Credit Agreement"); and
WHEREAS, the Borrowers, Agent, Requisite Lenders and the Supermajority
Revolving Lenders have agreed to the amendments and limited waiver as set forth
herein;
NOW THEREFORE, in consideration of the mutual execution hereof and
other good and valuable consideration, the parties hereto agree as follows:
1. Amendments to Credit Agreement.
(a) Amendment to Section 1.1(a). Section 1.1(a) of the
Credit Agreement is hereby amended by amending and restating the third and
fourth sentence therein to read in their entirety as follows:
"Amounts borrowed under this subsection (a) are collectively
referred to as the "Initial Term Loan B and together with any
Incremental Term Loan (as defined below), the "Term Loan B"." Borrower
shall repay the Initial Term Loan B through periodic payments on the
dates and in the amounts indicated below (together with any scheduled
payments of the Incremental Term Loan, "Scheduled Installments")."
(b) Amendment to Section 1.1. Section 1.1 of the Credit
Agreement is hereby amended by inserting the following new clause (g):
"(g) Incremental Loans.
(i) Borrower may make up to five requests for an incremental
term loan (the "Incremental Term Loan") or incremental revolving loan
(the "Incremental Revolving Loan"), each such request being for at
least $5,000,000, and in an aggregate amount not to exceed $40,000,000
for all such requests pursuant to delivery of a written request from
the Borrower to the Agent. Each such notice shall specify the date (an
"Increase Effective Date") on which the Borrower proposes that the
increased or new Commitments shall be effective, which date shall be a
date not less than ten (10) Business Days after such request is
delivered to the Agent. The increased or new Commitments shall become
effective on the applicable Increase Effective Date as long as each of
the following conditions have been met:
(A) no Default or Event of Default has occurred or is
continuing or would result after giving effect to such Incremental Term
Loan or Incremental Revolving Loan;
(B) (1) the maturity date of any Incremental Term
Loan, the weighted average life of any Incremental Term Loan, the
effective yield to the Lenders under such Incremental Term Loan
(including interest, fees received ratably by such Lenders and original
issue discount) shall be the same as the Initial Term Loan B, as
applicable, at the time such Incremental Term Loan is funded and (2)
any Incremental Revolving Loan shall become part of the Revolving Loans
with the same maturity, interest, fees and terms as the Revolving
Loans;
(C) the Borrower has provided evidence reasonably
satisfactory to the Agent that the Borrower would have been in
compliance with the financial covenants set forth in Section 6 assuming
that the Incremental Term Loan or Incremental Revolving Loan, as
applicable, had been incurred on the last day of the then most recently
completed Fiscal Quarter; and
(D) the Agent shall have received amendments to this
Agreement and the Loan Documents, joinder agreements for any new
Lenders, and all other promissory notes, agreements, documents and
instruments reasonably satisfactory to the Agent in its reasonable
discretion evidencing and setting forth the conditions of the
Incremental Term Loan or Incremental Revolving Loan, as applicable.
(ii) Each Lender which (a) holds a Term Loan B on the date the
Borrower delivers a written request to the Agent for a Incremental Term
Loan or a Revolving Loan on the date the Borrower delivers a written
request to the Agent for an Incremental Revolving Loan and (b) notifies
the Agent in writing within five (5) days of receipt of written notice
from the Agent that Borrower has requested an Incremental Term Loan or
Incremental Revolving Loan, as applicable, shall have the right to fund
its pro rata share of the Incremental Term Loan or Incremental
Revolving Loan, as applicable, based upon its share of the Term Loan B
Commitment or the Revolving Loan Commitment, as applicable, as
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of the date the Agent originally received the applicable notice from
the Borrower. Notwithstanding anything contained herein or otherwise to
the contrary, no Lender shall have any obligation to fund all or any
portion of, or participate in, the Incremental Term Loan or the
Incremental Revolving Loan. Amounts of the Incremental Term Loan which
are repaid may not be reborrowed.
(iii) On any Increase Effective Date on which Incremental
Revolving Loans are effected, subject to the satisfaction of the
foregoing terms and conditions, (A) each of the Lenders with Revolving
Loan Commitments shall assign to each Lender with an Incremental
Revolving Loan (each, an "Incremental Revolving Loan Lender") and each
of the Incremental Revolving Loan Lenders shall purchase from each of
the Lenders with Revolving Loan Commitments, at the principal amount
thereof (together with accrued interest), such interests in the
Revolving Loans on such Increase Effective Date as shall be necessary
in order that, after giving effect to all such assignments and
purchases, such Revolving Loans will be held by existing Lenders with
Revolving Loan and Incremental Revolving Loan Lenders ratably in
accordance with their Revolving Loan Commitments after giving effect to
the addition of such Incremental Revolving Loans to the Revolving Loan
Commitments, (B) each Incremental Revolving Loan shall be deemed for
all purposes a Revolving Loan Commitment and each Loan made thereunder
shall be deemed, for all purposes, a Revolving Loan and (C) each
Incremental Revolving Loan Lender shall become a Lender with respect to
the Revolving Loan Commitment and all matters relating thereto.
(iv) On any Increase Effective Date on which Incremental Term
Loans are effected, subject to the satisfaction of the foregoing terms
and conditions, (A) each Lender with an Incremental Term Loan (each, an
"Incremental Term Loan Lender") shall make a Loan to the Borrower in an
amount equal to the amount of the Incremental Term Loan such Lender has
committed to fund and (B) each Incremental Term Loan Lender shall
become a Lender hereunder with respect to the Incremental Term Loan.
Amounts of the Incremental Term Loan repaid may not be reborrowed.
(v) Each of the Borrower, Lenders and Agent acknowledges and
agrees that an Incremental Term Loan or Incremental Revolving Loan (and
related amendments and documents described in clause (iv) above)
meeting the conditions set forth in this Section 1.1(g) shall not
require the consent of any Lender other than those Lenders, if any,
which have agreed to participate in the Incremental Term Loan or the
Incremental Revolving Loan, as applicable."
(c) Amendment to Section 1.2(a). Section 1.2(a) of
the Credit Agreement is hereby amended by (i) replacing each occurrence of the
term "2.00%" with the term "3.25%" and (ii) replacing each occurrence of the
term "3.50%" with the term "4.25%" therein.
(d) Amendment to Section 1.3(a). Section 1.3(a) of
the Credit Agreement is hereby amended and restated to read in its entirety as
follows:
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"Fee Letter. Borrower shall pay to GE Capital, individually,
the Fees specified in that certain fee letter dated as of June 27, 2006
among Borrower and GE Capital, as supplemented by that certain
Supplemental Fee Letter dated as of the Amendment No. 3 Closing Date
and as supplemented by that certain Supplemental Fee Letter dated as of
the Amendment No. 5 Closing Date (collectively, the "GE Capital Fee
Letter"), at the times specified for payment therein."
(e) Amendment to Section 1.5(d). Section 1.5(d) of
the Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"Prepayments from Issuance of Securities; Segregated Account.
Immediately upon the receipt by Holdings, Borrower or any of its
Subsidiaries of the proceeds of the issuance of Stock, Borrower shall
prepay the Loans in an amount equal to fifty percent (50%) of such
proceeds, net of underwriting discounts and commissions and other
reasonable out-of-pocket costs associated therewith. The payments shall
be applied in accordance with Section 1.5(e). Notwithstanding the
foregoing, the following proceeds of stock issuance shall be excluded
from any mandatory prepayment: (i) proceeds of issuances of Stock by
Holdings or Borrower on or prior to the Closing Date, (ii) proceeds of
issuances of Stock of Holdings (and options and warrants for the
issuance of Stock of Holdings) to employees and directors of Holdings,
Borrower or Xxxxxxx and proceeds from the exercise of options and
warrants by employees and directors and (iii) proceeds of issuances of
Stock by any Subsidiary of Borrower to Borrower which constitutes an
Investment permitted hereunder. On the one hundred twentieth day
following (i) the Amendment No. 5 Closing Date, the Borrower shall
prepay the Loans, in accordance with Section 1.5(e), in an amount equal
to 100% of the remaining funds in the Segregated Account which were
deposited in the Segregated Account on the Amendment No. 5 Closing Date
and have not been used to pay the purchase price of the Strategic
Initiatives and (ii) the date on which any additional funds are
deposited into the Segregated Account, the Borrower shall prepay the
Loans, in accordance with Section 1.5(e), in an amount equal to 100% of
the remaining funds in the Segregated Account which were deposited on
such date and have not been used to pay the purchase price of the
Strategic Initiatives."
(f) Amendment to Section 3.25. Section 3.25 of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"3.25 Segregated Account. As of the Amendment No. 5 Closing Date,
Borrower has deposited into deposit account number 112813519 at City
National Bank $17,271,000 ("Segregated Account") which (i) funds (along
with any additional funds deposited into the Segregated Account within
forty-five (45) days of the Amendment No. 5 Closing Date) will be used
solely to (A) pay for Strategic Initiatives approved in writing by the
Agent or (B) repay Loans hereunder as required by Section 1.5(d) and
(ii) will be subject to a Control Agreement. The Agent shall have sole
dominion and control of the Segregated Account and shall
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withdraw funds therefrom (i) upon the written request of the Borrower,
to pay for Strategic Initiatives approved in writing by the Agent or
(ii) to repay Loans as required by Section 1.5(d) (and the Borrower
hereby acknowledges that the Agent may, without notice to the Borrower,
withdraw funds from the Segregated Account for the purposes set forth in
this sentence)."
(g) Amendment to Section 5.1(f). Section 5.1(f) of
the Credit Agreement is hereby amended by replacing the amount "$20,000,000"
which appears therein with "$25,000,000". (h) Amendment to Section 5.6(v).
Section 5.6(v) of the Credit Agreement is hereby amended and restated to read in
its entirety as follows:
"(v) the sum of all amounts payable in connection with any
Permitted Acquisition (including the purchase price, all transaction
costs and all Indebtedness, liabilities and Contingent Obligations
incurred or assumed in connection therewith or otherwise reflected on a
consolidated balance sheet of Borrower and Target) shall not exceed
$20,000,000 and the sum of such amounts payable in connection with all
Permitted Acquisitions shall not exceed $100,000,000, and the portion
thereof allocable to goodwill and intangible assets for all such
Permitted Acquisitions during the term hereof shall not exceed
$60,000,000."
(i) Amendment to Section 6.1(a). Section 6.1(a) of
the Credit Agreement is hereby amended and restated to read in its
entirety as follows:
"Capital Expenditure Limits. Holdings and its Subsidiaries on
a consolidated basis shall not make Capital Expenditures during the
following periods that exceed the aggregate amounts set forth opposite
each of such periods (the "Capex Limit"):
Period Maximum Capital
Expenditures per Period
Fiscal Year 2007 $42,000,000
Fiscal Year 2008 and $50,000,000
each Fiscal Year thereafter
provided, however, that the Capex Limit referenced above will
be increased in any period by an amount equal to 50% of the difference
obtained by taking the Capex Limit for the immediately prior period
(excluding any Capex Carry Over Amounts) minus the actual amount of any
Capital Expenditures expended during such prior period (the "Capex Carry
Over Amount"), and for purposes of measuring compliance herewith, the
Capex Carry Over Amount shall be deemed to be the last amount spent on
Capital Expenditures in that succeeding period; provided further that
(i) the Capex Limit for Fiscal Year 2008 shall be reduced by the
positive difference, if any, between (A) the actual amount of
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Capital Expenditures expended during Fiscal Year 2007 minus (B) the
Capex Limit for Fiscal Year 2007 and (ii) that the Capex Carry Over
Amount for any Fiscal Year shall not exceed $10,000,000."
(j) Amendment to Section 6.1(c). Section 6.1(c) of
the Credit Agreement is hereby amended and restated to read in its
entirety as follows:
"Minimum Fixed Charge Coverage Ratio. Holdings and its
Subsidiaries shall have on a consolidated basis at the end of each
Fiscal Quarter set forth below, a Fixed Charge Coverage Ratio for the
12-Fiscal Month period then ended of not less than the following:
1.20 for the Fiscal Quarters ending December 31, 2006 and
March 31, 2007;
1.15 for the Fiscal Quarter ending June 30, 2007;
1.10 for each Fiscal Quarter ending after June 30, 2007
but on or prior to December 31, 2011; and
1.20 for each Fiscal Quarter ending thereafter."
(k) Amendment to Section 6.1(e). Section 6.1(e) of
the Credit Agreement is hereby amended and restated to read in its
entirety as follows:
"Maximum Leverage Ratio. Holdings and its Subsidiaries on a
consolidated basis shall have, at the end of each Fiscal Quarter set
forth below, a Leverage Ratio as of the last day of such Fiscal Quarter
and for the 12-Fiscal Month period then ended, of not more than the
following:
4.35 for the Fiscal Quarters ending December 31, 2006,
2006 and March 31, 2007;
4.70 for the Fiscal Quarter ending June 30, 2007; 4.80 for
the Fiscal Quarter ending September 30, 2007;
5.00 for the Fiscal Quarters ending December 31, 2007,
March 31, 2008, June 30, 2008 and September 30, 2008;
4.75 for the Fiscal Quarters ending December 31, 2008 and
March 31, 2009;
4.50 for the Fiscal Quarter ending June 30, 2009 and
September 30, 2009;
4.25 for the Fiscal Quarters ending December 31, 2009,
March 31, 2010 and June 30, 2010;
4.00 for the Fiscal Quarters ending September 30, 2010 and
December 31, 2010;
3.25 for the Fiscal Quarters ending March 31, 2011, June
30, 2011, September 30, 2011 and December 31, 2011;
and
3.00 for the Fiscal Quarter ending March 31, 2012 and for
each Fiscal Quarter ending thereafter."
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(l) Amendment to Section 6.1(f). Section 6.1(f) of
the Credit Agreement is hereby amended and restated to read in its
entirety as follows:
"Maximum Senior Leverage Ratio. Holdings and its Subsidiaries
on a consolidated basis shall have, at the end of each Fiscal Quarter
set forth below, a Senior Leverage Ratio as of the last day of such
Fiscal Quarter and for the 12-Fiscal Month period then ended, of not
more than the following:
2.85 for the Fiscal Quarter ending December 31, 2006;
2.85 for the Fiscal Quarter ending March 31, 2007;
2.95 for the Fiscal Quarter ending June 30, 2007;
3.00 for the Fiscal Quarter ending September 30, 2007;
3.15 for the Fiscal Quarters ending December 31,
2007, March 31, 2008, June 30, 2008, September 30,
2008 and December 31, 2008;
3.00 for the Fiscal Quarters ending March 31, 2009, June
30, 2009, September 30, 2009 and December 31, 2009;
2.75 for the Fiscal Quarters ending March 31, 2010, June
30, 2010, September 30, 2010 and December 31, 2010;
and
2.50 for the Fiscal Quarter ending March 31, 2011 and for
each Fiscal Quarter ending thereafter."
(m) Amendment to Section 6.2(a)(i). Section 6.2(a)(i)
of the Credit Agreement is hereby amended and restated to read in its entirety
as follows:
"As soon as available and in any event within forty-five (45)
days (or if Holdings files an extension with the Securities & Exchange
Commission, fifty (50) days; provided, that Borrower has given Agent a
written explanation forty- five (45) days after the end of the
applicable Fiscal Quarter of Holdings, in form and substance reasonably
acceptable to Agent, regarding the need for such extension) after the
end of each Fiscal Quarter (excluding the last Fiscal Quarter of
Holdings' Fiscal Year), Borrower will deliver (1) the consolidated and
consolidating balance sheets of Holdings and its Subsidiaries, as at
the end of such quarter, and the related consolidated and consolidating
statements of income, stockholders' equity and cash flow for such
Fiscal Quarter and for the period from the beginning of the then
current Fiscal Year of Holdings to the end of such Fiscal Quarter, (2)
a report setting forth in comparative form the corresponding figures
for the corresponding periods of the previous Fiscal Year and the
corresponding figures from the most recent Projections for the current
Fiscal Year delivered pursuant to Section 6.2(h) and (3) a schedule of
the outstanding Indebtedness for borrowed money of Holdings and its
Subsidiaries describing in reasonable detail
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each such debt issue or loan outstanding and the principal amount and
amount of accrued and unpaid interest with respect to each such debt
issue or loan."
(n) Amendment to Section 6.2(d). Section 6.2(d) of
the Credit Agreement is hereby amended by replacing the term "Fiscal Quarter"
with the term "Fiscal Month" therein.
(o) Amendment to Section 8.2(m). Section 8.2(m) of
the Credit Agreement is hereby amended by adding "AND (E) AUTHORIZES AND
INSTRUCTS THE AGENT ON ITS BEHALF TO ENTER INTO THE FIRST AMENDMENT TO
INTERCREDITOR AGREEMENT AS FIRST LIEN AGENT (AS DEFINED THEREIN) AND ON BEHALF
OF SUCH LENDER" after clause (D) in the first sentence thereof.
(p) Amendment to Section 9.2(b). Section 9.2(b) of
the Credit Agreement is hereby amended by inserting the following sentence after
the third sentence therein: "No amendment, modification, termination or waiver
of or consent with respect to any provision of any Loan Document appropriate (as
reasonably determined by the Agent) to evidence or implement an Incremental
Revolving Loan or Incremental Term Loan, shall be effective unless the same
shall be in writing and signed by Agent, Borrower, and any Incremental Revolving
Loan Lender or Incremental Term Loan Lender, as applicable; provided, however,
that any amendment to Section 1.1(g) shall require the written consent of the
Required Lenders."
(q) Amendments to Annex A. Annex A of the Credit
Agreement is hereby amended by inserting the following defined terms in their
appropriate alphabetical order:
(1) "Amendment No. 5 Closing Date" means
February 22, 2008."
(2) "Delaware Imaging" means Delaware
Imaging Partners, Inc., a Delaware
corporation.
(3) "First Amendment to Intercreditor
Agreement" means that certain First
Amendment to Intercreditor Agreement, dated
February 22, 2008, among the Agent, the
Second Lien Agent and the Credit Parties.
(4) "Increase Effective Date" has the
meaning ascribed to it in Section 1.1(g).
(5) "Incremental Revolving Loan" has the
meaning ascribed to it in Section 1.1(g).
(6) "Incremental Revolving Loan Lender" has
the meaning ascribed to it in Section
1.1(g).
(7) "Incremental Term Loan" has the meaning
ascribed to it in Section 1.1(g).
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(8) "Incremental Term Loan Lender" has the
meaning ascribed to it in Section 1.1(g).
(9) "New Imaging Center" means, as of any
date of determination, any new imaging
center which has been open for business for
less than (12) months.
(10) "New Imaging Center EBITDA" means with
respect to any New Imaging Center for any
period (a "Measurement Period"), the product
of (I) the "center level profit or loss" of
such New Imaging Center determined in
accordance with GAAP for the period (the
"Annualization Period") from and including
the date such New Imaging Center opened
through and including the last day of the
Measurement Period multiplied by (II) a
number obtained by dividing 365 by the
number of days in the Annualization Period.
(r) Amendments to Annex A.
(1) Annex A of the Credit Agreement is
hereby amended by amending and restating the
following definitions to each read in its
entirety as follows:
"Lenders means GE Capital, the other Lenders named on the
signature pages of the Agreement, and, if any such Lender shall decide
to assign all or any portion of the Obligations, such term shall
include any assignee of such Lender, and any other financial
institution that becomes a party hereto by execution of a joinder
agreement in connection with any Incremental Term Loans or Incremental
Revolving Loans and any assignee of such Lender."
"Revolving Loan Commitment means (a) as to any Lender, the
commitment of such Lender to make its Pro Rata Share of Revolving
Credit Advances or incur its Pro Rata Share of Letter of Credit
Obligations (including, in the case of the Swing Line Lender, its
commitment to make Swing Line Advances as a portion of its Revolving
Loan Commitment) as set forth on Annex B (as supplemented by
Supplemental Annex B to the Agreement) or in the most recent Assignment
Agreement, if any, executed by such Lender and, if applicable, the
commitment of such Lender to make Incremental Revolving Loans, which
commitment is in the amount set forth in the applicable joinder
agreement, or in the most recent Assignment Agreement, if any, executed
by such Lender and (b) as to all Lenders, the aggregate commitment of
all Lenders to make the Revolving Credit Advances (including, in the
case of the Swing Line Lender, Swing Line Advances) or incur Letter of
Credit Obligations, which aggregate commitment shall be FIFTY-FIVE
MILLION DOLLARS ($55,000,000) on the Amendment No. 3 Closing Date, as
such amount may be adjusted, if at all, from time to time in accordance
with the Agreement."
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"Term Loan B Commitment means (a) as to any Lender, the
commitment of such Lender to make its Pro Rata Share of the Term Loan B
(as set forth on Annex B (as supplemented by Supplemental Annex B)) in
the maximum aggregate amount set forth in Section 1.1(a) or in the most
recent Assignment Agreement, if any, executed by such Lender and the
commitment of such Lender to make Incremental Term Loans, which
commitment is in the amount set forth in the applicable joinder
agreement, or in the most recent Assignment Agreement, if any, executed
by such Lender and (b) as to all Lenders, the aggregate commitment of
all Lenders to make the Term Loan B. The Term Loan B Commitment with
respect to each Term Loan B shall reduce automatically by the amount
prepaid or repaid in respect of such Term Loan B (but solely by the
amount of such prepayment or repayment allocable to a Lender, for
purposes of clause (a) of this definition)."
(2) Annex A of the Credit Agreement is
hereby amended by replacing the phrase
"Telerate Page 3750" with the phrase
"Reuters Screen LIBOR01 Page" in the
definition of "LIBOR Rate" therein.
(s) Amendment to Annex F. Annex F is hereby replaced
with the revised Annex F attached as Annex F to this Amendment. (t) Schedules.
Each of Schedules 3.1(a), 3.1(b), 3.10, 3.11, 3.12, 3.14, 3.16, 3.17, 3.18,
3.19, 5. 1, and 5.2, to the Credit Agreement is hereby replaced with the
applicable Schedule attached hereto.
(u) Schedule II to Exhibit 6.2(d) is hereby amended
and restated to read in its entirety as set forth on Schedule II to Exhibit
6.2(d) attached hereto.
(v) Omnibus Amendment to Credit Agreement. Each
reference in the Credit Agreement to "Credit Party", "Credit Parties", and/or
"Guarantors" as applicable, shall be deemed to include a reference to Delaware
Imaging.
2. Limited Waiver. The Agent and the Lenders hereby waive any
breach or violation of the Credit Agreement (and any resulting Event of Default)
to the extent arising solely from the failure of Holdings and its Subsidiaries
to comply with the limitation on the maximum amount of Capital Expenditures
permitted for the Fiscal Year ending 2007 set forth in Section 6.1 of the Credit
Agreement so long as such Capital Expenditures did not exceed $49,000,000
("Specified Default").
The waiver set forth above shall be limited precisely as written and shall not
be deemed or otherwise construed to constitute a waiver of any other Default or
other Event of Default or any other provision of the Credit Agreement or any
other Loan Document or to prejudice any right, power or remedy which any Agent
or any Lender may now have or may have in the future under or in connection with
the Credit Agreement or any other Loan Document (after giving effect to this
Agreement), all of which rights, powers and remedies are hereby expressly
reserved by the Agents and Lenders.
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3. Representations and Warranties of Credit Parties. The Credit Parties
represent and warrant that:
(a) the execution, delivery and performance by each Credit
Party of this Amendment have been duly authorized by all necessary
corporate action required on its part and this Amendment is a legal,
valid and binding obligation of such Credit Party enforceable against
such Credit Party in accordance with its terms except as the
enforcement thereof may be subject to (i) the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and (ii) general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law); and
(b) after giving effect to this Amendment, each of the
representations and warranties contained in the Credit Agreement is
true and correct in all material respects on and as of the date hereof
as if made on the date hereof, except to the extent that such
representations and warranties expressly relate to an earlier date and
no Default or Event of Default shall have occurred and is continuing.
4. Conditions To Effectiveness. This Amendment shall be effective upon
satisfaction of the following conditions precedent:
(a) This Amendment shall have been executed and delivered by
the Agent, Requisite Lenders, Supermajority Revolving Lenders
and the Credit Parties;
(b) The execution and delivery of the Amendment No. 5 to
Second Lien Credit Agreement, in form, substance and manner
satisfactory to the Agent;
(c) Agent shall have received each of the agreements,
documents, certificates, opinions or other instruments listed
on the closing checklist attached hereto as Exhibit A, each
duly executed by the parties thereto (as applicable) and each
in form and substance satisfactory to Agent; and
(d) The Agent shall have received, on behalf of each Lender
who has executed this Amendment, a nonrefundable amendment fee
equal to 0.50% of such Lender's Commitment, which fee shall be
fully earned and payable on the date hereof.
5. Reference To And Effect Upon The Credit Agreement.
(a) The Credit Agreement and the other Loan Documents shall
remain in full force and effect, as amended hereby, and are hereby
ratified and confirmed.
(b) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy
of Agent or any Lender under the Credit Agreement or any Loan Document,
nor constitute a waiver or amendment of any provision of the Credit
Agreement or any Loan Document, except as specifically set forth
herein.
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Upon the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Credit Agreement," "hereunder," "hereof," "herein" or
words of similar import shall mean and be a reference to the Credit
Agreement as amended hereby.
6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
7. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purposes.
8. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original, but
all such counterparts shall constitute one and the same instrument.
9. Reaffirmation of Guaranties. The Credit Parties signatory hereto
hereby reaffirm their Guaranties of the Obligations and reaffirm that the
Obligations are and continue to be secured by the security interest granted by
the Credit Parties in favor of the Agent, on behalf of itself and the Lenders,
under the Security Agreement and the Pledge Agreement and all of the terms,
conditions, provisions, agreements, requirements, promises, obligations, duties,
covenants and representations of the Credit Parties under such documents and
agreements entered into with respect to the obligations under the Credit
Agreement are incorporated herein by reference and are hereby ratified and
affirmed in all respects by the Credit Parties. Each Credit Party acknowledges
that all references to "Credit Agreement" and "Obligations" in the Loan
Documents shall take into account the provisions of this Amendment and be a
reference to the "Credit Agreement" and the "Obligations" as amended hereby.
* * *
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AMENDMENT NO. 5 AND LIMITED WAIVER TO SECOND LIEN CREDIT AGREEMENT
This AMENDMENT NO. 5 AND LIMITED WAIVER TO SECOND LIEN CREDIT
AGREEMENT (this "AMENDMENT"), dated as of February 22, 2008, by and among RADNET
MANAGEMENT, INC., a California corporation (the "BORROWER"), the other persons
designated as Credit Parties on the signature pages hereof, GENERAL ELECTRIC
CAPITAL CORPORATION, a Delaware corporation, as agent ("AGENT") and the Persons
signatory thereto from time to time as Lenders. Unless otherwise specified
herein, capitalized terms used in this Amendment shall have the meanings
ascribed to them in the Credit Agreement (each as hereinafter defined).
RECITALS
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WHEREAS, the Borrower, the Credit Parties, Agent and Lenders have
entered into that certain Second Lien Credit Agreement dated as of November 15,
2006 (as amended by that certain (i) Limited Waiver and Amendment No. 1 to
Second Lien Credit Agreement dated as of Xxxxx 0, 0000, (xx) Amendment No. 2 to
Second Lien Credit Agreement dated as of May 30, 2007, (iii) Amendment No. 3 to
Second Lien Credit Agreement dated as of August 23, 2007 and (iv) Amendment No.
4 to Second Lien Credit Agreement dated as of December 3, 2007, and as further
amended, supplemented, restated or otherwise modified from time to time, the
"CREDIT AGREEMENT"); and
WHEREAS, the Borrowers, Agent and Supermajority Lenders have agreed to
the amendments and limited waiver as set forth herein;
NOW THEREFORE, in consideration of the mutual execution hereof and
other good and valuable consideration, the parties hereto agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
(a) AMENDMENT TO SECTION 1.1. SECTION 1.1 of the Credit
Agreement is hereby amended and restated to (i) be renumbered as SECTION 1.1(a)
and (ii) read in its entirety as follows:
"(a) TERM LOAN C. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of
Borrower and the other Credit Parties contained herein, the Term
Lenders made a term loan to the Borrower on the Closing Date, in the
aggregate principal amount of $135,000,000. Subject to the terms and
conditions of this Agreement and in reliance upon the representations
and warranties of Borrower and the other Credit Parties contained
herein, each Term Lender agrees, severally and not jointly, to lend to
Borrower in one draw, on the Amendment No. 5 Closing Date an amount
such that, after giving effect to such loan, the amount of each Term
Loan C (as defined below) held by each Term Lender shall be as set
forth opposite such Lender's name in ANNEX B. Amounts borrowed under
this Section 1.1 are collectively referred to as the "INITIAL TERM LOAN
C" and together with any Incremental Term Loan (as defined below), the
"TERM LOAN C". The outstanding principal balance of the Term Loan C
shall be due and payable in full on the Term Loan C Maturity Date.
Amounts borrowed under this SECTION 1.1(a) and repaid may not be
reborrowed.
At the request of the applicable Lender, such Lender's Term
Loan C shall be evidenced by promissory notes substantially in the form
of EXHIBIT 1.1(a) (as amended, modified, extended, substituted or
replaced from time to time, each a "TERM NOTE C" and, collectively, the
"TERM NOTES C"), and, except as provided in SECTION 1.7, Borrower shall
execute and deliver each Term Note C to the applicable Lender. Each
Term Note C shall represent the obligation of Borrower to pay the
amount of the applicable Lender's Term Loan C Commitment, together with
interest thereon."
(b) AMENDMENT TO SECTION 1.1. SECTION 1.1 of the Credit
Agreement is hereby amended by inserting the following new clause (b):
"(b) INCREMENTAL TERM LOANS.
(i) Borrower may make up to five requests for an incremental
term loan (the "INCREMENTAL TERM LOAN"), each such request being for at
least $5,000,000, and in an aggregate amount not to exceed $25,000,000
for all such requests pursuant to delivery of a written request from
the Borrower to the Agent; PROVIDED, HOWEVER that (i) no Incremental
Term Loan shall be permitted to be made later than forty-five (45) days
after the Amendment No. 5 Closing Date and (ii) Borrower will deposit
into the Segregated Account the first $14,100,000 of Incremental Term
Loans borrowed pursuant to this Section 1.1(b)(i) which amounts will be
used in accordance with Section 3.25 hereof. Each such notice shall
specify the date (an "INCREASE EFFECTIVE DATE") on which the Borrower
proposes that the increased or new Term Loan C Commitments shall be
effective, which date shall be a date not less than ten (10) Business
Days after such request is delivered to the Agent. The increased or new
Term Loan C Commitments shall become effective on the applicable
Increase Effective Date as long as each of the following conditions
have been met:
(A) no Default or Event of Default has
occurred or is continuing or would result after giving effect to such
Incremental Term Loan;
(B) the maturity date of any Incremental
Term Loan, the weighted average life of any Incremental Term Loan, the
effective yield to the Lenders under such Incremental Term Loan
(including interest, fees received ratably by such Lenders and original
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issue discount) shall be the same as the Initial Term Loan C, as
applicable, at the time such Incremental Term Loan is funded;
(C) the Borrower has provided evidence
reasonably satisfactory to the Agent that the Borrower would have been
in compliance with the financial covenants set forth in SECTION 6
assuming that the Incremental Term Loan had been incurred on the last
day of the then most recently completed Fiscal Quarter; and
(D) the Agent shall have received amendments
to this Agreement and the Loan Documents, joinder agreements for any
new Lenders, and all other promissory notes, agreements, documents and
instruments reasonably satisfactory to the Agent in its reasonable
discretion evidencing and setting forth the conditions of the
Incremental Term Loan.
(ii) Each Lender which (a) holds a Term Loan C on the date the
Borrower delivers a written request to the Agent for a Incremental Term
Loan and (b) notifies the Agent in writing within five (5) days of
receipt of written notice from the Agent that Borrower has requested an
Incremental Term Loan shall have the right to fund its pro rata share
of the Incremental Term Loan based upon its share of the Term Loan C
Commitment as of the date the Agent originally received the applicable
notice from the Borrower. Notwithstanding anything contained herein or
otherwise to the contrary, no Lender shall have any obligation to fund
all or any portion of, or participate in, the Incremental Term Loan.
Amounts of the Incremental Term Loan which are repaid may not be
reborrowed.
(iii) On any Increase Effective Date on which Incremental Term
Loans are effected, subject to the satisfaction of the foregoing terms
and conditions, (A) each Lender with an Incremental Term Loan (each, an
"INCREMENTAL TERM LOAN LENDER") shall make a Loan to the Borrower in an
amount equal to the amount of the Incremental Term Loan such Lender has
committed to fund and (B) each Incremental Term Loan Lender shall
become a Lender hereunder with respect to the Incremental Term Loan.
Amounts of the Incremental Term Loan repaid may not be reborrowed.
(iv) Each of the Borrower, Lenders and Agent acknowledges and
agrees that an Incremental Term Loan (and related amendments and
documents described in clause (iii) above) meeting the conditions set
forth in this SECTION 1.1(b) shall not require the consent of any
Lender other than those Lenders, if any, which have agreed to
participate in the Incremental Term Loan."
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(c) AMENDMENT TO SECTION 1.2(a). SECTION 1.2(a) of the
Credit Agreement is hereby amended by (i) replacing the term "6.00%" with the
term "8.00%" and (ii) replacing the term "7.50%" with the term "9.00%" therein.
(d) AMENDMENT TO SECTION 1.3(a). SECTION 1.3(a) of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"FEE LETTER. Borrower shall pay to GE Capital, individually,
the Fees specified in that certain fee letter dated as of June 27, 2006
among Borrower and GE Capital, as supplemented by that certain
Supplemental Fee Letter dated as of the Amendment No. 5 Closing Date
(collectively, the "GE CAPITAL FEE LETTER"), at the times specified for
payment therein."
(e) AMENDMENT TO SECTION 1.3(f). SECTION 1.3(f) of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"PREPAYMENT FEE. If the Borrower prepays (for any reason
(including any mandatory prepayment or acceleration)) all or any
portion of the Term Loan C on or prior to the third anniversary of the
Amendment No. 5 Closing Date, Borrower shall pay to Agent, for the
ratable benefit of Lenders, as liquidated damages and compensation for
the costs of being prepared to make funds available hereunder, an
amount equal to the product of (i) the Applicable Percentage multiplied
by (ii) the aggregate principal amount of the Term Loan C being prepaid
(the "PREPAYMENT FEE"). As used herein, the term "Applicable
Percentage" shall mean (x) three percent (3.0%), in the case of a
prepayment on or prior to the first anniversary of the Amendment No. 5
Closing Date, (y) two percent (2.0%), in the case of a prepayment after
the first anniversary of the Amendment No. 5 Closing Date but on or
prior to the second anniversary thereof and (z) one percent (1.0%), in
the case of a prepayment after the second anniversary of the Amendment
No. 5 Closing Date but on or prior to the third anniversary thereof.
The Credit Parties agree that the Prepayment Fee is a reasonable
calculation of Lenders' lost profits in view of the difficulties and
impracticality of determining actual damages resulting from prepayment
of the Term Loan C."
(f) AMENDMENT TO SECTION 1.5(d). SECTION 1.5(d) of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"PREPAYMENTS FROM ISSUANCE OF SECURITIES; SEGREGATED ACCOUNT.
Except to the extent applied as a prepayment of the First Lien Loan
Obligations, immediately upon the receipt by Holdings, Borrower or any
of its Subsidiaries of the proceeds of the issuance of Stock, Borrower
shall prepay the Term Loan C in an amount equal to fifty percent (50%)
of such proceeds, net of underwriting discounts and commissions and
other reasonable out-of-pocket costs associated therewith. The payments
shall be applied in accordance with SECTION 1.5(e). Notwithstanding the
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foregoing, the following proceeds of stock issuance shall be excluded
from any mandatory prepayment: (i) proceeds of issuances of Stock by
Holdings or Borrower on or prior to the Closing Date, (ii) proceeds of
issuances of Stock of Holdings (and options and warrants for the
issuance of Stock of Holdings) to employees and directors of Holdings,
Borrower or Xxxxxxx and proceeds from the exercise of options and
warrants by employees and directors and (iii) proceeds of issuances of
Stock by any Subsidiary of Borrower to Borrower which constitutes an
Investment permitted hereunder. Except to the extent applied as a
prepayment of the First Lien Loan Obligations, (i) on the one hundred
twentieth day following the Amendment No. 5 Closing Date, the Borrower
shall prepay the Term Loan C, in accordance with SECTION 1.5(e), in an
amount equal to 100% of the remaining funds in the Segregated Account
which were deposited in the Segregated Account on the Amendment No. 5
Closing Date and have not been used to pay the purchase price of the
Strategic Initiatives and (ii) on the one hundred twentieth day
following the date on which any additional funds are deposited into the
Segregated Account, the Borrower shall prepay the Term Loan C, in
accordance with SECTION 1.5(e), in an amount equal to 100% of the
remaining funds in the Segregated Account which were deposited on such
date and have not been used to pay the purchase price of the Strategic
Initiatives."
(g) AMENDMENT TO SECTION 3.7(b). SECTION 3.7(b) of the
Credit Agreement is hereby amended by amending and restating the first sentence
thereof to read in its entirety as follows:
"Borrower shall utilize the proceeds of the Term Loan C solely
for Strategic Initiatives approved in writing by the Agent, to repay
the Revolving Loan (as defined in the First Lien Credit Agreement), and
for the financing of Borrower's ordinary working capital and general
corporate needs."
(h) AMENDMENT TO SECTION 3. SECTION 3 of the Credit
Agreement is hereby amended by inserting the following new SECTION 3.25 at the
end thereof:
"3.25 SEGREGATED ACCOUNT. As of the Amendment No. 5 Closing Date,
Borrower has deposited into deposit account number 112813519 at City
National Bank $17,271,000 ("Segregated Account") which (i) funds (along
with any additional funds deposited into the Segregated Account within
forty-five (45) days of the Amendment No. 5 Closing Date) will be used
solely to (A) pay for Strategic Initiatives approved in writing by the
Agent or (B) repay Loans hereunder as required by Section 1.5(d) and
(ii) will be subject to a Control Agreement. The Agent shall have sole
dominion and control of the Segregated Account and shall withdraw funds
therefrom (i) upon the written request of the Borrower, to pay for
Strategic Initiatives approved in writing by the Agent or (ii) to repay
Loans as required by SECTION 1.5(d) (and the Borrower hereby
acknowledges that the Agent may, without notice to the Borrower,
withdraw funds from the Segregated Account for the purposes set forth
in this sentence)."
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(i) AMENDMENT TO SECTION 5.1(f). SECTION 5.1(f) of the
Credit Agreement is hereby amended by replacing the amount "$20,000,000" which
appears therein with "$25,000,000".
(j) AMENDMENT TO SECTION 5.6(v). SECTION 5.6(v) of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"(v) the sum of all amounts payable in connection with any
Permitted Acquisition (including the purchase price, all transaction
costs and all Indebtedness, liabilities and Contingent Obligations
incurred or assumed in connection therewith or otherwise reflected on a
consolidated balance sheet of Borrower and Target) shall not exceed
$20,000,000 and the sum of such amounts payable in connection with all
Permitted Acquisitions shall not exceed $100,000,000, and the portion
thereof allocable to goodwill and intangible assets for all such
Permitted Acquisitions during the term hereof shall not exceed
$60,000,000."
(k) AMENDMENT TO SECTION 6.1(a). SECTION 6.1(a) of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"CAPITAL EXPENDITURE LIMITS. Holdings and its Subsidiaries on
a consolidated basis shall not make Capital Expenditures during the
following periods that exceed the aggregate amounts set forth opposite
each of such periods (the "CAPEX LIMIT"):
PERIOD MAXIMUM CAPITAL EXPENDITURES
------ ----------------------------
PER PERIOD
----------
Fiscal Year 2007 $44,000,000
Fiscal Year 2008 and each $52,000,000
Fiscal Year thereafter
PROVIDED, HOWEVER, that the Capex Limit referenced above will
be increased in any period by an amount equal to 50% of the difference
obtained by taking the Capex Limit for the immediately prior period
(excluding any Capex Carry Over Amounts) MINUS the actual amount of any
Capital Expenditures expended during such prior period (the "CAPEX
CARRY OVER AMOUNT"), and for purposes of measuring compliance herewith,
the Capex Carry Over Amount shall be deemed to be the last amount spent
on Capital Expenditures in that succeeding period; PROVIDED FURTHER
that (i) the Capex Limit for Fiscal Year 2008 shall be reduced by the
positive difference, if any, between (A) the actual amount of Capital
Expenditures expended during Fiscal Year 2007 minus (B) the Capex Limit
for Fiscal Year 2007 and (ii) that the Capex Carry Over Amount for any
Fiscal Year shall not exceed $10,000,000."
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(l) AMENDMENT TO SECTION 6.1(c). SECTION 6.1(c) of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"MINIMUM FIXED CHARGE COVERAGE RATIO. Holdings and its
Subsidiaries shall have on a consolidated basis at the end of each
Fiscal Quarter set forth below, a Fixed Charge Coverage Ratio for the
12-Fiscal Month period then ended of not less than the following.
1.10 for the Fiscal Quarters ending December 31, 2006,
2006 and March 31, 2007;
1.05 for the Fiscal Quarter ending June 30, 2007;
1.00 for each Fiscal Quarter ending after June 30, 2007
but on or prior to December 31, 2011; and
1.10 for each Fiscal Quarter ending thereafter."
(m) AMENDMENT TO SECTION 6.1(e). SECTION 6.1(e) of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"MAXIMUM LEVERAGE RATIO. Holdings and its Subsidiaries on a
consolidated basis shall have, at the end of each Fiscal
Quarter set forth below, a Leverage Ratio as of the last day
of such Fiscal Quarter and for the 12-Fiscal Month period then
ended, of not more than the following:
4.60 for the Fiscal Quarters ending December 31,
2006 and March 31, 2007;
4.95 for the Fiscal Quarter ending June 30, 2007;
5.05 for the Fiscal Quarter ending September 30,
2007;
5.25 for the Fiscal Quarters ending December 31, 2007,
March 31, 2008, June 30, 2008 and September 30, 2008;
5.00 for the Fiscal Quarters ending December 31, 2008 and
March 31, 2009;
4.75 for the Fiscal Quarter ending June 30, 2009 and
September 30, 2009;
4.50 for the Fiscal Quarters ending December 31, 2009, March
31, 2010 and June 30, 2010;
4.25 for the Fiscal Quarters ending September 30, 2010 and
December 31, 2010;
3.50 for the Fiscal Quarters ending March 31, 2011, June
30, 2011, September 30, 2011 and December 31, 2011;
3.25 for the Fiscal Quarters ending March 31, 2012, June
30, 2012, September 30, 2012 and December 31, 2012;
and
3.00 for the Fiscal Quarter ending March 31, 2013 and for
each Fiscal Quarter ending thereafter."
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(n) AMENDMENT TO SECTION 6.1(f). SECTION 6.1(f) of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"MAXIMUM SENIOR LEVERAGE RATIO. Holdings and its Subsidiaries
on a consolidated basis shall have, at the end of each Fiscal
Quarter set forth below, a Senior Leverage Ratio as of the
last day of such Fiscal Quarter and for the 12-Fiscal Month
period then ended, of not more than the following:
3.05 for the Fiscal Quarter ending December 31, 2006;
3.10 for the Fiscal Quarter ending March 31,
2007;
3.20 for the Fiscal Quarter ending June 30, 2007;
3.25 for the Fiscal Quarter ending September 30, 2007;
3.40 for the Fiscal Quarters ending December 31, 2007, March
31, 2008, June 30, 2008, September 30, 2008 and
December 31, 2008;
3.25 for the Fiscal Quarters ending March 31, 2009, June 30,
2009, September 30, 2009 and December 31, 2009;
3.00 for the Fiscal Quarters ending March 31, 2010, June 30,
2010, September 30, 2010 and December 31, 2010;
2.75 for the Fiscal Quarter ending March 31, 2011 and for
each Fiscal Quarter ending thereafter."
(o) AMENDMENT TO SECTION 6.2(a)(i). SECTION 6.2(a)(i) of
the Credit Agreement is hereby amended and restated to read in its entirety as
follows:
(p) "As soon as available and in any event within
forty-five (45) days (or if Holdings files an extension with the Securities &
Exchange Commission, fifty (50) days; PROVIDED, that Borrower has given Agent a
written explanation forty-five (45) days after the end of the applicable Fiscal
Quarter of Holdings, in form and substance reasonably acceptable to Agent,
regarding the need for such extension) after the end of each Fiscal Quarter
(excluding the last Fiscal Quarter of Holdings' Fiscal Year), Borrower will
deliver (1) the consolidated and consolidating balance sheets of Holdings and
its Subsidiaries, as at the end of such quarter, and the related consolidated
and consolidating statements of income, stockholders' equity and cash flow for
such Fiscal Quarter and for the period from the beginning of the then current
Fiscal Year of Holdings to the end of such Fiscal Quarter, (2) a report setting
forth in comparative form the corresponding figures for the corresponding
periods of the previous Fiscal Year and the corresponding figures from the most
recent Projections for the current Fiscal Year delivered pursuant to SECTION
6.2(h) and (3) a schedule of the outstanding Indebtedness for borrowed money of
Holdings and its Subsidiaries describing in reasonable detail each such debt
issue or loan outstanding and the principal amount and amount of accrued and
unpaid interest with respect to each such debt issue or loan."
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(q) AMENDMENT TO SECTION 8.2(m). SECTION 8.2(m) of the
Credit Agreement is hereby amended by adding "AND (E) AUTHORIZES AND INSTRUCTS
THE AGENT ON ITS BEHALF TO ENTER INTO THE FIRST AMENDMENT TO INTERCREDITOR
AGREEMENT AS SECOND LIEN AGENT (AS DEFINED THEREIN) AND ON BEHALF OF SUCH
LENDER" after clause (D) in the first sentence thereof.
(r) AMENDMENT TO SECTION 9.2(b). SECTION 9.2(b) of the
Credit Agreement is hereby amended by inserting the following sentence at the
end thereof: "No amendment, modification, termination or waiver of or consent
with respect to any provision of any Loan Document appropriate (as reasonably
determined by the Agent) to evidence or implement an Incremental Term Loan,
shall be effective unless the same shall be in writing and signed by Agent,
Borrower, and Incremental Term Loan Lender, as applicable; PROVIDED, HOWEVER,
that any amendment to SECTION 1.1(b) shall require the written consent of the
Required Lenders."
(s) AMENDMENTS TO ANNEX A. ANNEX A of the Credit Agreement
is hereby amended by inserting the following defined terms in their appropriate
alphabetical order:
(1) "AMENDMENT NO. 5 CLOSING DATE means February 22,
2008."
(2) "DELAWARE IMAGING" means Delaware Imaging
Partners, Inc., a Delaware corporation.
(3) "FIRST AMENDMENT TO INTERCREDITOR AGREEMENT"
means that certain First Amendment to Intercreditor
Agreement, dated February 22, 2008, among the Agent,
the First Lien Agent and the Credit Parties.
(4) "INCREASE EFFECTIVE DATE" has the meaning
ascribed to it in SECTION 1.1(b).
(5) "INCREMENTAL TERM LOAN" has the meaning ascribed
to it in SECTION 1.1(B).
(6) "INCREMENTAL TERM LOAN LENDER" has the meaning
ascribed to it in SECTION 1.1(b).
(7) "SEGREGATED ACCOUNT has the meaning ascribed to
it in SECTION 3.25."
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(8) "STRATEGIC INITIATIVES means any acquisitions,
investments, or other initiatives taken by Borrower
and approved in advance in writing by the Agent."
(9) "NEW IMAGING CENTER" means, as of any date of
determination, any new imaging center which has been
open for business for less than (12) months.
(10) "NEW IMAGING CENTER EBITDA" means with respect
to any New Imaging Center for any period (a
"Measurement Period"), the product of (I) the
"center level profit or loss" of such New Imaging
Center determined in accordance with GAAP for the
period (the "Annualization Period") from and
including the date such New Imaging Center opened
through and including the last day of the
Measurement Period MULTIPLIED BY (II) a number
obtained by DIVIDING 365 by the number of days in
the Annualization Period.
(t) AMENDMENTS TO ANNEX A.
(1) ANNEX A of the Credit Agreement is hereby
amended by amending and restating the following
definitions to each read in its entirety as follows:
"LENDERS means GE Capital, the other Lenders named on the
signature pages of the Agreement, and, if any such Lender shall decide
to assign all or any portion of the Obligations, such term shall
include any assignee of such Lender, and any other financial
institution that becomes a party hereto by execution of a joinder
agreement (in connection with any Incremental Term Loans or otherwise)
and any assignee of such Lender."
"TERM LOAN C COMMITMENT means (a) as to any Lender, the
commitment of such Lender to make its Pro Rata Share of the Term Loan C
(as set forth on ANNEX B (as supplemented by SUPPLEMENTAL ANNEX B to
the Agreement)) in the maximum aggregate amount set forth in SECTION
1.1(a) or in the most recent Assignment Agreement, if any, executed by
such Lender and the commitment of such Lender to make Incremental Term
Loans, which commitment is in the amount set forth in the applicable
joinder agreement, or in the most recent Assignment Agreement, if any,
executed by such Lender and (b) as to all Lenders, the aggregate
commitment of all Lenders to make the Term Loan C. The Term Loan C
Commitment with respect to each Term Loan C shall reduce automatically
by the amount prepaid or repaid in respect of such Term Loan C (but
solely by the amount of such prepayment or repayment allocable to a
Lender, for purposes of clause (a) of this definition)."
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(2) ANNEX A of the Credit Agreement is hereby
amended by replacing the phrase "Telerate Page 3750"
with the phrase "Reuters Screen LIBOR01 Page" in the
definition of "LIBOR Rate" therein.
(u) AMENDMENT TO ANNEX B. ANNEX B of the Credit Agreement
is hereby supplemented with the SUPPLEMENTAL ANNEX B attached as ANNEX B to this
Amendment.
(v) AMENDMENT TO ANNEX F. ANNEX F is hereby replaced with
the revised ANNEX F attached as ANNEX F to this Amendment.
(w) SCHEDULES. Each of SCHEDULES 3.1(a), 3.1(b), 3.10,
3.11, 3.12, 3.14, 3.16, 3.17, 3.18, 3.19, 5.1, and 5.2, to the Credit Agreement
is hereby replaced with the applicable SCHEDULE attached hereto.
(x) EXHIBIT 6.2(d) is hereby amended and restated to read
in its entirety as set forth on EXHIBIT 6.2(d) attached hereto.
(y) OMNIBUS AMENDMENT TO CREDIT AGREEMENT. Each reference
in the Credit Agreement to "Credit Party", "Credit Parties", and/or "Guarantors"
as applicable, shall be deemed to include a reference to Delaware Imaging.
2. LIMITED WAIVER. The Agent and the Lenders hereby waive any
breach or violation of the Credit Agreement (and any resulting Event of Default)
to the extent arising solely from the failure of Holdings and its Subsidiaries
to comply with the limitation on the maximum amount of Capital Expenditures
permitted for the Fiscal Year ending 2007 set forth in SECTION 6.1 of the Credit
Agreement so long as such Capital Expenditures did not exceed $49,000,000
("SPECIFIED DEFAULT").
The waiver set forth above shall be limited precisely as written and shall not
be deemed or otherwise construed to constitute a waiver of any other Default or
other Event of Default or any other provision of the Credit Agreement or any
other Loan Document or to prejudice any right, power or remedy which any Agent
or any Lender may now have or may have in the future under or in connection with
the Credit Agreement or any other Loan Document (after giving effect to this
Agreement), all of which rights, powers and remedies are hereby expressly
reserved by the Agents and Lenders.
3. REPRESENTATIONS AND WARRANTIES OF CREDIT PARTIES. The
Credit Parties represent and warrant that:
(a) the execution, delivery and performance by each Credit
Party of this Amendment have been duly authorized by all necessary
corporate action required on its part and this Amendment is a legal,
valid and binding obligation of such Credit Party enforceable against
such Credit Party in accordance with its terms except as the
enforcement thereof may be subject to (i) the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and (ii) general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law); and
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(b) after giving effect to this Amendment, each of the
representations and warranties contained in the Credit Agreement is
true and correct in all material respects on and as of the date hereof
as if made on the date hereof, except to the extent that such
representations and warranties expressly relate to an earlier date and
no Default or Event of Default shall have occurred and is continuing.
4. CONDITIONS TO EFFECTIVENESS. This Amendment shall be
effective upon satisfaction of the following conditions precedent:
(a) This Amendment shall have been executed and delivered
by the Agent, Supermajority Lenders and the Credit Parties;
(b) The execution and delivery of the Amendment No. 5 to
Credit Agreement, in form, substance and manner
satisfactory to the Agent;
(c) Agent shall have received each of the agreements,
documents, certificates, opinions or other instruments
listed on the closing checklist attached hereto as EXHIBIT
A, each duly executed by the parties thereto (as
applicable) and each in form and substance satisfactory to
Agent; and
(d) The Agent shall have received, on behalf of each Lender
who has executed this Amendment, a nonrefundable amendment
fee equal to 0.50% of such Lender's Commitment, which fee
shall be fully earned and payable on the date hereof.
5. COVENANTS OF LENDERS LISTED ON SUPPLEMENTAL ANNEX B. Each
Lender funding a Term Loan C on the Amendment No. 5 Closing Date which was not a
Lender prior to the Amendment No. 5 Closing Date:
(a) appoints and authorizes the Agent to take such action
as agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Agent by the terms thereof, together
with such powers as are reasonably incidental thereto; and
(b) agrees that as of the Amendment No. 5 Closing Date it
shall be a party to the Credit Agreement and it shall perform in
accordance with their terms all obligations that, by the terms of the
Loan Documents, are required to be performed by it as a Lender.
6. REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT.
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(a) The Credit Agreement and the other Loan Documents
shall remain in full force and effect, as amended hereby, and are
hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy
of Agent or any Lender under the Credit Agreement or any Loan Document,
nor constitute a waiver or amendment of any provision of the Credit
Agreement or any Loan Document, except as specifically set forth
herein. Upon the effectiveness of this Amendment, each reference in the
Credit Agreement to "this Credit Agreement," "hereunder," "hereof,"
"herein" or words of similar import shall mean and be a reference to
the Credit Agreement as amended hereby.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
8. HEADINGS. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
9. COUNTERPARTS. This Amendment may be executed in any number
of counterparts, each of which when so executed shall be deemed an original, but
all such counterparts shall constitute one and the same instrument.
10. REAFFIRMATION OF GUARANTIES. The Credit Parties signatory
hereto hereby reaffirm their Guaranties of the Obligations and reaffirm that the
Obligations are and continue to be secured by the security interest granted by
the Credit Parties in favor of the Agent, on behalf of itself and the Lenders,
under the Security Agreement and the Pledge Agreement and all of the terms,
conditions, provisions, agreements, requirements, promises, obligations, duties,
covenants and representations of the Credit Parties under such documents and
agreements entered into with respect to the obligations under the Credit
Agreement are incorporated herein by reference and are hereby ratified and
affirmed in all respects by the Credit Parties. Each Credit Party acknowledges
that all references to "Credit Agreement" and "Obligations" in the Loan
Documents shall take into account the provisions of this Amendment and be a
reference to the "Credit Agreement" and the "Obligations" as amended hereby.
* * *
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