RECITALS
Exhibit 10.19
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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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the date first written above.
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RADNET MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
XXXXXXX RADIOLOGY MEDICAL GROUP III
By: ProNet Imaging Medical Group, Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
By: Xxxxxxx Radiology Medical Group, Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
PRONET IMAGING MEDICAL GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
XXXXXXX RADIOLOGY MEDICAL GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
RADNET SUB, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
SOCAL MR SITE MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
RADNET MANAGEMENT I, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
RADNET MANAGEMENT II, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
RADNET MANAGED IMAGING SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
DIAGNOSTIC IMAGING SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: Chief Financial Officer
RADIOLOGIX, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
ADVANCED IMAGING PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
IDE IMAGING PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
MID ROCKLAND IMAGING PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
PACIFIC IMAGING PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
QUESTAR IMAGING, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
TREASURE COAST IMAGING PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
COMMUNITY IMAGING PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
RADIOLOGY AND NUCLEAR MEDICINE IMAGING PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
VALLEY IMAGING PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
QUESTAR DULUTH, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
QUESTAR LOS ALAMITOS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
QUESTAR VICTORVILLE, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
ROCKY MOUNTAIN OPENSCAN MRI, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
FRI, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
FRI II, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
ROLLING OAKS IMAGING CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
ROLLING OAKS RADIOLOGY, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
DELAWARE IMAGING PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
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Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
GENERAL ELECTRIC CAPITAL
CORPORATION
as Agent and a Lender
By: /s/ Xxxxxx X. Xxxxx
Duly Authorized Signatory
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
Cratos CLO I LTD.
By: Cratos CDO Management, LLC
As Attorney-in-fact
By: Cratos Capital Partners, LLC
Its Manager
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
Cratos CLO II LTD.
By: Cratos CDO Management, LLC
As Attorney-in-fact
By: Cratos Capital Partners, LLC
Its Manager
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
ACA CLO 2006-2, Limited, as a Lender
By: /s/Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Managing Director
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
| ACA CLO 2007-1, Limited, as a Lender
By: /s/Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Managing Director
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
Greyrock CDO Limited
By Aladdin Capital Management LLC, as Manager
By: /s/Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Designated Signatory
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
| Landmark II CDO Limited
By Aladdin Capital Management, LLC, as Manager
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Designated Signatory
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
| Landmark IX CDO Limited
By Aladdin Capital Management, LLC, as Manager
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Designated Signatory
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
Landmark VI CDO Limited
By Aladdin Capital Management, LLC, as Manager
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Designated Signatory
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
Landmark VII CDO Limited
By Aladdin Capital Management, LLC, as Manager
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Designated Signatory
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
BLACK DIAMOND CLO 2006-1 (CAYMAN
)Ltd.
By: Black Diamond CLO 2006-1 Advisor, LLC.,
As its Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Principal
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
BLACK DIAMOND CLO 2005-2 Ltd.
By: Black Diamond CLO 2005-2 Advisor, LLC.,
As its Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Principal
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
DIAMOND SPRINGS TRADING LLC, as a Lender
By: /s/Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Assistance Vice President
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
Brencourt BD, LLC., as Lender
By: /s/Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: CFO
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
| Man Mac Schreckhorn 14B Ltd., as Lender
By: /s/Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: CFO
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
CIFC Funding 2006-I, Ltd
CIFC Funding 2006-IB, Ltd.
CIFC Funding 2006-II, Ltd.
CIFC Funding 2007-I, Ltd.
CIFC Funding 2007-II, Ltd.,
as Lender
By: /s/Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: General Counsel
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
PREMIER FUNDING, LTD., as a Lender
By: Citigroup Global Markets Realty Corp.,
as Collateral Administrator
By: /s/ Authorized Signatory
Title: Authorized Signatory
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
ColumbusNova CLO Ltd. 2006-II
as Lender
By: /s/ Xxxx. L. Cal
Name: Xxxx X. Cal
Title: Associate Director
ColumbusNova CLO Ltd. 2007-I
as Lender
By: /s/ Xxxx. L. Cal
Name: Xxxx X. Cal
Title: Associate Director
ColumbusNova CLO IV Ltd. 2007-II
as Lender
By: /s/ Xxxx. L. Cal
Name: Xxxx X. Cal
Title: Associate Director
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
NAVIGATOR CDO 2005, LTD., as a Lender
By: GE Asset Management Inc., as Collateral Manager
By: /s/Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Authorized Signatory
NAVIGATOR CDO 2006, LTD., as a Lender
By: GE Asset Management Inc., as Collateral Manager
By: /s/Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Authorized Signatory
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
SANDELMAN FINANCE 2006-2, LTD.,
as a Lender
By: Sandelman Partners, LP
as Collateral Manager
By: /s/ Authorized signatory
Title: Authorized signatory
SANDELMAN FINANCE 2006-1, LTD.,
as a Lender
By: Sandelman Partners, LP
as Collateral Manager
By: /s/ Authorized signatory
Title: Authorized signatory
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
ROYAL BANK OF CANADA, as a Lender
By: /s/ Xxxxxx XxxXxxxxx
Name: Xxxxxx XxxXxxxxx
Title: Authorized Signatory
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
Pangaea CLO 2007-1 LTD, as a Lender
By: /s/Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Senior Managing Director
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
Grand Central Asset Trust, BDC, Series, as aLender
By: /s/Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Attorney-in-fact
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
Denali Capital LLC, managing member of DC
Funding Partners LLC, portfolio manager for
DENALI CAPITAL CLO IV, LTD, or an affiliate
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Chief Credit Officer
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
Denali Capital LLC, managing member of DC
Funding Partners LLC, portfolio manager for
DENALI CAPITAL CLO V, LTD, or an affiliate
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Chief Credit Officer
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
Denali Capital LLC, managing member of DC
Funding Partners LLC, portfolio manager for
DENALI CAPITAL CLO VI, LTD, or an affiliate
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Chief Credit Officer
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
Denali Capital LLC, managing member of DC
Funding Partners LLC, portfolio manager for
DENALI CAPITAL CLO VII, LTD, or an affiliate
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Chief Credit Officer
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
Denali Capital LLC, managing member of DC
Funding Partners LLC, portfolio manager for
DENALI CAPITAL CREDIT OPPORTUNITY
FUND FINANCING, LTD., or an affiliate
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Chief Credit Officer
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
Denali Capital LLC, managing member of DC
Funding Partners LLC, portfolio manager for
DENALI CAPITAL CLO VIII, LTD, or an affiliate
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Chief Credit Officer
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
SENIOR DEBT PORTFOLIO, as a Lender
By: Boston Management and Research as
Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
|
|
|
XXXXX XXXXX SENIOR INCOME TRUST, as a Lender
By: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
|
|
XXXXX XXXXX INSTITUTIONAL SENIOR
LOAN FUND, as a Lender
By: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
|
|
|
XXXXX XXXXX CDO VII PLC, as a Lender
By: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
|
|
|
XXXXX XXXXX CDO VIII Ltd., as a Lender
By: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
|
|
|
XXXXX XXXXX CDO X PLC, as a Lender
By: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
XXXXXXX & CO., as a Lender
By: Boston Management and Research as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
|
|
XXXXX XXXXX, as a Lender
LIMITED DURATION INCOME FUND
By: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
|
|
XXXXX XXXXX SENIOR FLOATING-RATE TRUST, as a Lender
By: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
|
|
XXXXX XXXXX FLOATING-RATE INCOME TRUST, as a Lender
By: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
|
|
XXXXX XXXXX VARIABLE LEVERAGE FUND Ltd., as a Lender
By: Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
MC Funding Ltd., as a Lender
By: Monroe Capital Management, LLC
As Collateral Manager
By: /s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
|
|
ORIX FINANCE CORP., as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxx
Name: Xxxxxxxxxxx X. Xxxxx
Title: Authorized Representative
|
|
Satellite Senior Income Fund II, LLC, as a Lender
By: Satellite Asset Management, LP. Its Investment Manager
By: /s/Matt Des Champs
Name: Matt Des Champs
Title: CFO & Principal
|
|
TELOS CLO 2006-1, LTD
TELOS CLO 2007-2, LTD
By: Tricadia Loan Management, LLC, as Lenders
By: /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Principal
|
|
COLTS 2005-2, LTD., as a Lender
by: Structured Asset Investors, LLC
as Collateral Manager
By: /s/ Xxxxxx XxXxxx
Name: Xxxxxx XxXxxx
Title: Vice President
COLTS 2007-1, LTD., as a Lender
by: Structured Asset Investors, LLC as Collateral Manager
By: /s/ Xxxxxx De Mint
Name: Xxxxxx XxXxxx
Title: Vice President
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
|
Grand Central Asset Trust, DES Series, as a Lender
By: /s/Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Attorney-in-fact
|
|
STATION PLACE I, LTD. as a Lender
By: CYRUS CAPITAL PARTNERS, L.P., as Collateral Manager
By: /s/ Authorized Signatory
Title: Authorized Signatory
|
|
Clear Lake CLO, Ltd. , as a Lender
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
|
|
Diamond Lake CLO, Ltd. , as a Lender
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
|
|
St. Xxxxx River CLO, Ltd. , as a Lender
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
|
|
Summit Lake CLO, Ltd. , as a Lender
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
|
|
Victoria Falls CLO, Ltd. , as a Lender
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
|
Signature Page to Amendment No. 5 to Credit Agreement and Limited Waiver to Credit Agreement
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
--------
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
2
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."
3
(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
4
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)."
5
(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."
6
(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."
7
(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."
8
(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."
9
(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)."
10
(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
11
(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.
12
(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.
* * *
13
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the date first written above.
|
RADNET MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
XXXXXXX RADIOLOGY MEDICAL GROUP III
By: ProNet Imaging Medical Group, Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
By: Xxxxxxx Radiology Medical Group, Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
PRONET IMAGING MEDICAL GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
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Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
XXXXXXX RADIOLOGY MEDICAL GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
RADNET SUB, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
SO CAL MR SITE MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
RADNET MANAGEMENT I, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
RADNET MANAGEMENT II, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
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Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
RADNET MANAGED IMAGING SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
DIAGNOSTIC IMAGING SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: Chief Financial Officer
RADIOLOGIX, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
ADVANCED IMAGING PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
IDE IMAGING PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
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Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
MID ROCKLAND IMAGING PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
PACIFIC IMAGING PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
QUESTAR IMAGING, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
TREASURE COAST IMAGING PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
COMMUNITY IMAGING PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
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Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
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RADIOLOGY AND NUCLEAR MEDICINE IMAGING PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
VALLEY IMAGING PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
QUESTAR DULUTH, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
QUESTAR LOS ALAMITOS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
QUESTAR VICTORVILLE, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
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Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
ROCY MOUNTAIN OPENSCAN MRI, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
FRI, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
FRI II, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
ROLLING OAKS IMAGING CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
ROLLING OAKS RADIOLOGY, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
DELAWARE IMAGING PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx, M.D.
Title: President
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
GENERAL ELECTRIC CAPITAL
CORPORATION
as Agent and a Lender
By: /s/ Xxxxxx X. Xxxxx
Duly Authorized Signatory
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
Brencourt BD, LLC., as Lender
By: /s/Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: CFO
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
Man Mac Schreckhorn 14B Ltd., as Lender
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: CFO
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
CIFC Funding 2006-I, Ltd
as Lender
By: /s/Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: General Counsel
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
PREMIER FUNDING, LTD., as a Lender
By: Citigroup Global Markets Realty Corp.,
as Collateral Administrator By: /s/ authorized signatory
Name: Authorized Signatory
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
XXXXX XXXXX SENIOR INCOME TRUST, as a
Lender By: Xxxxx Xxxxx Management as Investment
Advisor By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
XXXXX XXXXX CDO VII PLC, as a Lender
By: Xxxxx Xxxxx Management as Investment
Advisor By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
XXXXX XXXXX CDO VIII Ltd., as a Lender
By: Xxxxx Xxxxx Management as Investment
Advisor By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
XXXXX XXXXX CDO X PLC, as a Lender
By: Xxxxx Xxxxx Management as Investment
Advisor By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
XXXXX XXXXX FLOATING-RATE INCOME
TRUST, as a Lender By: Xxxxx Xxxxx Management as Investment
Advisor By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
XXXXX XXXXX CREDIT OPPORTUNITIES
FUND, as a Lender By: Xxxxx Xxxxx Management as Investment
Advisor By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
Crystal Capital Fund, Ltd., as a Lender
As duly authorized:
Crystal Capital Fund Management, L.P.
By: Crystal Capital Fund GP, LLC, its General
Partner By: /s/Xxxxxx X. Migiliero
Name: Xxxxxx X. Migiliero
Title: Executive Managing Director
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
Crystal Capital Offshore Warehouse Ltd.
As duly authorized
Crystal Capital Fund Management, L.P., as
designated manager By: Crystal Capital Fund GP, LLC, its General
Partner, as a Lender By: /s/ Xxxxxx X. Migiliero
Name: Xxxxxx X. Migiliero
Title: Executive Managing Director
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
XXXXX CATALYST PARTNERS, LLC, as a
Lender By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
TELOS CLO 2007-2, LTD, as a Lender
By: /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Principal
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
S.A.C. Domestic Investments, as a Lender
By: S.A.C. Capital Advisors, LLC, its General
Partner By: /s/Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
S.A.C. Offshore Capital Funding, Ltd., as Lender
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Director
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
Grand Central Asset Trust, DES Series, as a Lender
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Attorney-in-fact
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
Canadian Imperial Bank of Commerce, as a Lender
By: /s/ Xxxx X’Xxxx
Name: Xxxx X’Xxxx
Title: Authorized Signatory
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
TRS VENOR LLC
By: Deutsche Bank AG Cayman Islands Branch,
its sole Member
By: DB Services New Jersey, Inc.
By: /s/Xxxxxxxx Xxxxxxxx
Name: Xxxxxxxx Xxxxxxxx
Title: Assistant Vice President
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
Stichting Pensioenfonds Hoogovens, as a Lender
By: DDJ Capital Management, LLC, on behalf of
Stichting Pensioenfonds Hoogovens, in its capacity as Manager By: /s/ Xxxxx X. Xxxxxxxxxx, Xx.
Name: Xxxxx X. Xxxxxxxxxx, Xx.
Title: Authorized Signatory
By: /s/Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
Stichting Bewaarder Interpolis Pensioenen
Global High Yield Pool, as a Lender By: Syntrus Achmea Asset Management, as asset
manager By: DDJ Capital Management, LLC, as subadvisor
By: /s/ Xxxxx X. Xxxxxxxxxx, Xx.
Name: Xxxxx X. Xxxxxxxxxx, Xx.
Title: Authorized Signatory
By: /s/Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
GMAM Investment Funds Trust II, for the
account of the Promark Alternative High YieldB
ond Fund, as a Lender
By: DDJ Capital Management, LLC, on behalf of
GMAM Investment Funds Trust II, for the
account of the Promark Alternative High
Yield Bond Fund, in its capacity as
investment manager
By: /s/ Xxxxx X. Xxxxxxxxxx, Xx.
Name: Xxxxx X. Xxxxxxxxxx, Xx.
Title: Authorized Signatory
By: /s/Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
GMAM Investment Funds Trust, as a Lender
By: DDJ Capital Management, LLC, on behalf of
GMAM Investment Funds Trust, in its
capacity as investment manager
By: /s/ Xxxxx X. Xxxxxxxxxx, Xx.
Name: Xxxxx X. Xxxxxxxxxx, Xx.
Title: Authorized Signatory
By: /s/Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
|
DDJ/Ontario OS Investment Sub I, Ltd (f/k/a
DDJ/Ontario OS Investment Sub 2006 Ltd., as a
Lender
By: DDJ Capital Management, LLC, in its
capacity as investment manager
By: /s/ Xxxxx X. Xxxxxxxxxx, Xx.
Name: Xxxxx X. Xxxxxxxxxx, Xx.
Title: Authorized Signatory
By: /s/Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
DDJ Total Return Loan Fund, L.P., as a Lender
By: GP Total Return, LP, its General Partner
GP Total Return, LLC, its General Partner
DDJ Capital Management, LLC, Manager
By: /s/ Xxxxx X. Xxxxxxxxxx, Xx.
Name: Xxxxx X. Xxxxxxxxxx, Xx.
Title: Authorized Signatory
By: /s/Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
|
Signature Page to Amendment No. 5 to Second Lien Credit Agreement and Limited Waiver to Second Lien Credit Agrement
ANNEX F
COMPLIANCE AND EXCESS CASH FLOW CERTIFICATE
RADNET MANAGEMENT, INC.
Dated as of: [Insert Date of Most Recent Financial Statements]
This Certificate is given by Radnet Management, Inc. (“Borrower”) pursuant to Section 6.2(o) of that certain Credit Agreement dated as of ____________, ______ among Borrower, the other Credit Parties party thereto, the Lenders from time to time party thereto and General Electric Capital Corporation, as agent for the Lenders (as such agreement may have been amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement.
The undersigned is duly authorized to execute and deliver this Certificate on behalf of Borrower. By executing this Certificate such officer hereby certifies to Agent and Lenders that:
(a) the financial statements delivered with this Certificate in accordance with Section 6.2(a) and/or 4.7(a) of the Credit Agreement fairly present in all material respects the results of operations and financial condition of Holdings and its Subsidiaries as of the dates of such financial statements;
(b) I have reviewed the terms of the Credit Agreement and have made, or caused to be made under my supervision, a review in reasonable detail of the transactions and conditions of the Credit Parties during the accounting period covered by such financial statements;
(c) such review has not disclosed the existence during or at the end of such accounting period, and I have no knowledge of the existence as of the date hereof, of any condition or event that constitutes a Default or an Event of Default, except as set forth on Schedule 1 hereto, which includes a description of the nature and period of existence of such Default or an Event of Default and what action Borrower has taken, is taking and proposes to take with respect thereto;
(d) except as set forth on Schedule 1 hereto, Borrower is in compliance with the covenants contained in Sections 5.1, 5.3, 5.4, 5.5, 5.6(v), 5.7 and 5.8 and Section 6 of the Credit Agreement, as demonstrated on Schedule 1 hereto [NOTE TO BORROWER: THE PORTION OF SCHEDULE 1 PERTAINING TO FINANCIAL COVENANTS IS ONLY REQUIRED TO BE COMPLETED AS OF THE END OF EACH FISCAL QUARTER];
(e) Excess Cash Flow, as demonstrated by the calculation on Schedule 2 hereto, for the Fiscal Year ending ______________ equals $______________ . [NOTE TO BORROWER: THIS CLAUSE IS ONLY REQUIRED TO BE COMPLETED IN CONNECTION WITH THE DELIVERY OF AUDITED FINANCIAL STATEMENTS PURSUANT TO SECTION 6.2(B) OF THE CREDIT AGREEMENT];
-1-
(f) except as set forth on Schedule 3 hereto, subsequent to the date of the most recent Certificate submitted by Borrower pursuant to Section 6.2(o) of the Credit Agreement, no Credit Party has (i) changed its name as it appears in official filings in the jurisdiction of its organization, (ii) changed its chief executive office, principal place of business, corporate offices, warehouses or locations at which Collateral is held or stored, or the location of its records concerning Collateral, (iii) changed the type of entity that it is, (iv) changed (or has had changed) its organization identification number, if any, issued by its jurisdiction of organization, (v) changed its jurisdiction of organization, (vi) changed the end of its Fiscal Year, or (vii) formed any new Subsidiary or entered into any partnership or joint venture with any other Person; and
(g) except as set forth on Schedule 4 hereto, subsequent to the date of the most recent Certificate submitted by Borrower pursuant to Section 6.2(o) of the Credit Agreement, there has been no event which would alter any of the disclosures set forth on Schedule 3.1(b) of the Credit Agreement.
IN WITNESS WHEREOF, Borrower has caused this Certificate to be executed by its _______________ this _______ day of ________________.
|
RADNET MANAGEMENT, INC.
|
|||
|
Date
|
By
|
||
| Its | |||
-2-
SCHEDULE 1
Annex F
ALL AMOUNTS IN ANNEX F ARE WITHOUT DUPLICATION AND, UNLESS OTHERWISE INDICATED, ARE CALCULATED FOR HOLDINGS AND ITS SUBSIDIARIES ON A CONSOLIDATED BASIS
INDEBTEDNESS
(Section 5.1)
| Intercompany Indebtedness among Borrower and its Subsidiaries: | |||||
|
Actual in the aggregate
|
$ | ||||
|
Permitted in the aggregate
|
$ | ||||
|
In Compliance
|
Yes/No
|
||||
| Indebtedness secured by purchase money Liens or incurred with respect to Capital Leases: | |||||
|
Actual in the aggregate
|
$ | ||||
|
Permitted in the aggregate
|
$ | ||||
|
In Compliance
|
Yes/No
|
||||
| Unsecured subordinated Indebtedness: | |||||
|
Actual in the aggregate
|
$ | ||||
|
Permitted in the aggregate
|
$ | ||||
|
In Compliance
|
Yes/No
|
||||
-3-
INVESTMENTS
(Section 5.3)
|
Loans and advances to employees for moving, traveling and other similar expenses in the ordinary course of business:
|
|||||
|
Actual in the aggregate
|
$ | ||||
|
Permitted in the aggregate
|
$ | ||||
|
In Compliance
|
Yes/No
|
||||
|
Capital contributions to wholly-owned domestic Subsidiaries:
|
|||||
|
Actual in the aggregate
|
$ | ||||
|
Permitted in the aggregate
|
$ | ||||
|
In Compliance
|
Yes/No
|
||||
-4-
CONTINGENT OBLIGATIONS
(Section 5.4)
|
Contingent Obligations incurred in the ordinary course of business with respect to surety and appeal bonds, performance and return-of-money bonds and other similar obligations:
|
|||||
|
Actual in the aggregate
|
$ | ||||
|
Permitted in the aggregate
|
$ | ||||
|
In Compliance
|
Yes/No
|
||||
|
Other Contingent Obligations not otherwise permitted in Sections 5.4(a) through (h):
|
|||||
|
Actual in the aggregate
|
$ | ||||
|
Permitted in the aggregate
|
$ | ||||
|
In Compliance
|
Yes/No
|
||||
-5-
RESTRICTED JUNIOR PAYMENTS
(Section 5.5)
|
Actual (current Fiscal Year)
|
$ | |||
|
Current (current Fiscal Year)
|
$ | |||
|
In Compliance
|
Yes/No
|
|||
|
Actual (term of Credit Agreement)
|
$ | |||
|
Permitted (term of Credit Agreement)
|
$ | |||
|
In Compliance
|
Yes/No
|
|||
-6-
PERMITTED ACQUISITIONS
(Section 5.6(v))
Describe any Permitted Acquisitions made during the period:
|
|
|
|
||
|
|
|
|
||
|
|
|
|
||
|
|
|
|
||
| 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 or Target) |
$
|
|
||
|
In Compliance
|
Yes/No
|
|||
|
Aggregate sum of all amounts payable in connection with all Permitted Acquisitions
|
$
|
|
||
|
Permitted amounts payable in connection with all Permitted Acquisitions
|
$
|
|||
|
In Compliance
|
Yes/No
|
|||
-7-
DISPOSAL OF ASSETS
(Section 5.7)
Describe any Asset Dispositions made during the period (list each transaction by market value of assets sold):
|
|
|
|
||
|
|
|
|
||
|
|
|
|
||
|
|
|
|
||
|
Permitted Asset Dispositions in a single transaction or series of related transactions (asset market value)
|
$
|
|
||
|
In Compliance
|
Yes/No
|
|||
|
Aggregate market value of Asset Dispositions in Fiscal Year
|
$
|
|
||
|
Permitted aggregate market value of Asset Dispositions in Fiscal Year
|
$
|
|
||
|
In Compliance
|
Yes/No
|
|||
-8-
TRANSACTIONS WITH AFFILIATES
(Section 5.8)
|
Directors fees paid in current Fiscal Year:
|
|||||
|
Actual in the aggregate
|
$ | ||||
|
Permitted in the aggregate
|
$ | ||||
|
In Compliance
|
Yes/No
|
||||
-9-
CAPITAL EXPENDITURE LIMIT
(Section 6.1(a))
|
Capital Expenditures are defined as follows:
|
|||||
| All expenditures (by the expenditure of cash or (without duplication) the incurrence of Indebtedness) during the measuring period for any fixed asset or improvements or for replacements, substitutions or additions thereto that have a useful life of more than one year and that are required to be capitalized under GAAP | $ | ||||
|
Plus: deposits made during the measuring period in connection with fixed assets; less deposits of a prior period included above
|
$ | ||||
|
Less: Net Proceeds of Asset Dispositions which Borrower is permitted to reinvest under Section 1.5(c) of the Credit Agreement and are included in the expenditures above.
|
|||||
|
Capital Expenditures
|
$ | ||||
|
Permitted Capital Expenditures
|
$ | ||||
| In Compliance |
Yes/No
|
||||
-10-
MINIMUM FIXED CHARGE COVERAGE RATIO
(Section 6.1(c))
| EBITDA (calculated in Section 6.1(b) of this Annex) | $ | ||||
|
Less: any provision for income taxes (whether paid or payable in cash)
|
|||||
|
Capital Expenditures (calculated in Section 6.1(a) of this Annex), other than the portion thereof funded by third party financing
|
|||||
|
Operating Cash Flow
|
$ | ||||
| Fixed Charge Coverage Ratio is defined as follows: | |||||
|
Interest expense (whether cash or non-cash) deducted in the determination of Consolidated Net Income, including interest expense with respect to any Funded Debt and interest expense that has been capitalized
|
$ | ||||
|
Less: Amortization of capitalized fees and expenses incurred with respect to the Related Transactions included in interest expense above
|
|||||
|
Amortization of any original discount attributable to any Funded Debt or warrants included in interest expense above
|
|||||
|
Interest paid in kind and included in interest expense above
|
|||||
|
Imputed interest or other non-cash interest related to swap or other interest rate agreements
|
|||||
| Interest Expense* | $ | ||||
|
Plus: Scheduled payments of principal with respect to all Indebtedness**
|
|||||
| Fixed Charges | $ | ||||
|
Fixed Charge Coverage Ratio (Operating Cash Flow from above, divided by Fixed Charges)
|
|||||
* During the period from the Closing Date through the Fiscal Quarter ended September 30, 2008, cash Interest Expense shall be calculated for the period commencing on the Closing Date and ending on the date most recently ended for which a Compliance Certificate is delivered to Agent divided by the number of days in such period and multiplied by 360 days. Thereafter, cash Interest Expense shall be calculated for the twelve (12) month period ending on the date most recently ended for which a Compliance Certificate is delivered to Agent.
** For calculations as of September 30, 2007, scheduled payments of principal with respect to all Indebtedness will be deemed to be the actual amount of such payments for the fiscal quarter ended September 30, 2007 multiplied by 4.0. For calculations as of December 31, 2007, scheduled payments of principal with respect to all Indebtedness will be deemed to be the actual amount of such payments for the fiscal quarters ended September 30, 2007 and December 31, 2007 multiplied by 2.0. For calculations of as March 31, 2008, scheduled payments of principal with respect to all Indebtedness will be deemed to be the actual amounts of such payments for the fiscal quarters ended September 30, 2007, December 31, 2007 and March 31, 2008 multiplied by 1.33 or one and one-third.
-11-
MAXIMUM LEVERAGE RATIO
(Section 6.1(e))
|
Leverage Ratio is defined as follows:
|
|||||
|
(1) Funded Debt as of the date of determination, including Letter of Credit Obligations (other than the Revolving Loans)
|
$ | ||||
|
(2) Average Daily Balance of the Revolving Loans during the applicable measuring period
|
|||||
|
Adjusted Funded Debt ((1) plus (2))
|
|||||
|
Leverage Ratio (Adjusted Funded Debt divided by EBITDA*)
|
|||||
| Required Leverage Ratio | |||||
| In Compliance |
Yes/No
|
||||
-12-
MAXIMUM SENIOR LEVERAGE RATIO
(Section 6.1(f))
|
Senior Leverage Ratio is defined as follows:
|
|||||
|
(1) Funded Debt as of the date of determination, including Letter of Credit Obligations (other than the Revolving Loans)
|
$ | ||||
|
(2) Average Daily Balance of the Revolving Loans during the applicable measuring period
|
|||||
|
Adjusted Funded Debt ((1) plus (2))
|
|||||
|
Less: Indebtedness outstanding under the Second Lien Credit Agreement as of the date of determination
|
|||||
|
Less: Other Subordinated Debt as of the date of determination
|
|||||
|
Senior Debt
|
|||||
|
Senior Leverage Ratio (Senior Debt divided by EBITDA)
|
|||||
|
Required Senior Leverage Ratio
|
|||||
| In Compliance |
Yes/No
|
||||
-13-
CONDITIONS OR EVENTS WHICH CONSTITUTE A DEFAULT OR
EVENT OF DEFAULT
[If any condition or event exists that constitutes a Default or Event of Default, specify nature and period of existence and what action Borrower has taken, is taking or proposes to take with respect thereto; if no condition or event exists, state “None.”]
-14-
SCHEDULE 2
Annex F
EXCESS CASH FLOW
(Section 1.5)
(Section 6.1(f))
|
Excess Cash Flow is calculated for Holdings and its Subsidiaries, and is defined as follows:
|
|||||
|
EBITDA (calculated in Schedule II to Exhibit 6.2(d))
|
$ | ||||
| Plus: | decreases in Working Capital during the Fiscal Year* | ||||
|
extraordinary gains which are cash items not included in the calculation of EBITDA
|
|||||
| Less: | Capital Expenditures (calculated in Section 6.1(a) of this Annex) (excluding the financed portion thereof and excluding any Capital Expenditures in such Fiscal Year to the extent in excess of the Capex Limit) | ||||
|
Amortization of capitalized fees and expenses incurred with respect to the Related Transactions included in interest expense above
|
|||||
|
Interest paid in kind and included in interest expense above
|
|||||
|
Imputed interest or other non-cash interest related to swap or other interest rate agreements
|
|||||
|
scheduled principal payments paid or payable in respect of Funded Debt
|
|||||
|
income taxes paid in cash
|
|||||
|
increases in Working Capital during the Fiscal Year*
|
|||||
|
losses which are cash items not included in the calculation of EBITDA
|
|||||
|
aggregate amounts of all voluntary prepayments of Term Loan B
|
|||||
|
amounts paid in cash for Permitted Acquisitions
|
|||||
|
Subtotal
|
$ | ||||
|
Required Prepayment Percentage
|
75%
|
||||
|
Excess Cash Flow
|
$ | ||||
* Working Capital means Current Assets minus Current Liabilities.
-15-
SCHEDULE 3
Annex F
ORGANIZATION/LOCATION CHANGES
[If any Credit Party has (i) changed its name as it appears in official filings in the state of its organization, (ii) changed its chief executive office, principal place of business, corporate offices, warehouses or locations at which Collateral is held or stored, or the location of its records concerning Collateral, (iii) changed the type of entity that it is, (iv) changed (or has had changed) its organization identification number, if any, issued by its jurisdiction or organization, (v) changed its jurisdiction of organization, (vi) changed the end of its Fiscal Year, or (vii) formed any new Subsidiary or entered into any partnership or joint venture with any Person, such change shall be specified below; if no such change has been made, state “None.”]
-16-
SCHEDULE 4
Annex F
CAPITALIZATION CHANGES
[If with respect to any Credit Party there has been a change in authorized Stock, issued and outstanding Stock or the identity of the holders of any Stock, or if with respect to any Credit Party there has been a change pertaining to preemptive rights or any other outstanding rights, options, warrants, conversion rights or similar agreements or understandings for the purchase or acquisition of any Stock, such change shall be set forth below; if no such change has occurred, state “None.”]
-17-
SCHEDULE II
EXHIBIT 6.2(d)
EBITDA
Consolidated Net Income is defined as follows:
|
Net income during the measuring period on a consolidated basis excluding:
|
$ | ||||
|
the income (or deficit) of any Person accrued prior to the date it became a Subsidiary of, or was merged or consolidated into, Holdings or any of Holdings’ Subsidiaries
|
|||||
|
the income (or deficit) of any Person (other than a Subsidiary) in which Holdings has an ownership interest, except to the extent any such income has actually been received by Borrower or any of its Subsidiaries in the form of cash dividends or distributions
|
|||||
|
the undistributed earnings of any Subsidiary of Holdings to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any contractual obligation or requirement of law applicable to such Subsidiary
|
|||||
|
any restoration to income of any contingency reserve, except to the extent that provision for such reserve was made out of income accrued during such period
|
|||||
|
any net gain attributable to the write-up of any asset
|
|||||
|
any loss attributable to the write-down of any asset (other than Accounts and Inventory)
|
|||||
|
any net gain from the collection of the proceeds of life insurance policies
|
|||||
|
any net gain arising from the acquisition of any securities, or the extinguishment of any Indebtedness, of Holdings or any of its Subsidiaries
|
|||||
|
any deferred credit representing the excess of equity in any Subsidiary of Holdings at the date of acquisition of such Subsidiary over the cost to Holdings of the investment in such Subsidiary
|
|||||
|
Consolidated Net Income
|
$ | ||||
-18-
|
EBITDA is defined as follows:
|
$ | ||||
|
Consolidated Net Income (from above)
|
$ | ||||
|
Less: (in each case to the extent included in the calculation of Consolidated Net Income, but without duplication):
|
|||||
|
income tax credits
|
|||||
|
interest income
|
|||||
|
gain from extraordinary items
|
|||||
|
any gain arising from the sale, exchange or other disposition of assets (including Equipment) out of the ordinary course of business, other than Accounts and Inventory
|
|||||
|
any other non-cash gains
|
|||||
|
expenditures related to the Related Transactions and not reflected on the Pro Forma or the footnotes thereto
|
|||||
|
non-recurring gains
|
|||||
|
the aggregate “center level profit or loss” (determined in accordance with GAAP) for all imaging centers which are, as of the last day of the applicable period, New Imaging Centers
|
|||||
| Plus: |
(in each case to the extent deducted in the calculation of Consolidated Net Income, but without duplication):
|
||||
|
any provision for income taxes
|
|||||
|
Interest expense (whether cash or non-cash) deducted in the determination of Consolidated Net Income, including interest expense with respect to any Funded Debt and interest expense that has been capitalized
|
|||||
|
depreciation and amortization
|
|||||
-19-
|
amortized debt discount (but in the case of amortization and expenses of Related Transactions, only to the extent included in the Pro Forma)
|
|||||
|
any deduction as the result of any grant to any members of the management of Holdings or any of its Subsidiaries of any Stock
|
|||||
|
loss from extraordinary items
|
|||||
|
any loss arising from the sale, exchange or other disposition of assets (including Equipment) out of the ordinary course of business, other than Accounts and Inventory
|
|||||
|
any other non-cash losses (other than non-cash losses relating to write-offs, write-downs or reserves with respect to Accounts and Inventory)
|
|||||
|
expenses of the Related Transactions, provided that such expenses were included in the Pro Forma, or disclosed in any notes thereto
|
|||||
|
employee severance expenses and retention bonuses in an aggregate amount not to exceed $2,600,000 paid on or prior to December 31, 2007 which expenses arose as a result of the transactions contemplated by the Radiologix Merger Agreement for all periods ending on or after the Closing Date
|
|||||
|
Other agreed to adjustments1
|
|||||
|
New Imaging Center EBITDA for all imaging centers which are, as of the last day of the applicable period, New Imaging Centers
|
|||||
1 Other agreed adjustments to include EBITDA related to operating leases to the extent such leases have been converted to capital leases as of the end of the applicable measuring period.
-20-
| Plus: |
Pro Forma Cost Savings2 and other pro-forma cost savings relating to Permitted Acquisitions in an amount not to exceed $4,000,000 for any individual Permitted Acquisition or Strategic Initiatives (that do not constitute Permitted Acquisitions) in a cumulative amount not to exceed $6,000,000 after the Amendment No. 5 Closing Date, to the extent the addition to EBITDA of such cost savings is approved by the Agent
|
||||
| EBITDA3 | $ | ||||
|
pre-opening costs which consist of payroll, supplies and other direct expenses incurred in connection with opening new imaging centers which are expensed as incurred during the applicable period, all as based upon a calculation in good faith by the Borrower as set forth in a certificate from the Chief Financial Officer (or other similar officer) of the Borrower delivered to the Agent and in a cumulative amount not to exceed $2,500,000 for all new imaging centers.
|
3 EBITDA for entities acquired in a Permitted Acquisition or EBITDA relating to new joint ventures or management arrangements shall be included to the extent that such EBITDA has been approved by Agent in its reasonable discretion (it being agreed that to the extent not already included in EBITDA of Holdings and its Subsidiaries, EBITDA of Radiologix and its Subsidiaries for the Fiscal Months set forth on Exhibit B attached hereto shall be deemed to be the amount set forth opposite such Fiscal Month on Exhibit B). In addition, to the extent that each of Community Imaging and Advanced Imaging (the “Converting Entities”) converts from analog to digital mammography on or prior to March 31, 2008, the EBITDA of Holdings and its Subsidiaries for each of the Fiscal Quarters to end on or about March 31, 2008, December 31, 2007, September 30, 2007 and June 30, 2007 shall be deemed increased by $1,400,000; provided, however, that if the actual volume or reimbursement rates relating to digital mammographies performed by the Converting Entities for any Fiscal Quarter to end on or after June 30, 2008, is less than the prior year same period historical volume or reimbursement rates relating to digital mammographies performed by the Converting Entities, then the $1,400,000 amount set forth above may be adjusted by the Agent in its discretion.
-21-
EXHIBIT A
PRO FORMA COST SAVINGS
|
Fiscal Month
|
Adjustment
|
|
|
December, 2006
|
$10,975,410.00
|
|
|
January, 2007
|
$10,929,679.10
|
|
|
February, 2007
|
$10,838,217.40
|
|
|
Xxxxx, 0000
|
$10,701,024.80
|
|
|
April, 2007
|
$10,518,101.30
|
|
|
May, 2007
|
$10,280,300.70
|
|
|
June, 2007
|
$9,978,476.90
|
|
|
July, 2007
|
$9,603,483.80
|
|
|
August, 2007
|
$9,137,028.80
|
|
|
September, 2007
|
$8,569,966.00
|
|
|
October, 2007
|
$7,893,149.00
|
|
|
November, 2007
|
$7,097,431.80
|
|
|
December, 2007
|
$6,301,714.60
|
|
|
January, 2008
|
$5,432,828.00
|
|
|
February, 2008
|
$4,609,672.20
|
|
|
Xxxxx, 0000
|
$3,832,247.30
|
|
|
April, 2008
|
$3,100,553.30
|
|
|
May, 2008
|
$2,423,736.40
|
|
|
June, 2008
|
$1,810,942.70
|
|
|
July, 2008
|
$1,271,318.30
|
|
|
August, 2008
|
$823,155.80
|
|
|
September, 2008
|
$475,601.10
|
|
|
October, 2008
|
$237,800.60
|
|
|
November, 2008
|
$118,900.30
|
-22-
EXHIBIT B
EBITDA OF RADIOLOGIX AND ITS SUBSIDIARIES
|
Fiscal Month
|
EBITDA
|
|
September, 2005
|
$3,939,000.00
|
|
October, 2005
|
$3,796,000.00
|
|
November, 2005
|
$2,545,000.00
|
|
December, 2005
|
$4,386,000.00
|
|
January, 2006
|
$3,430,000.00
|
|
February, 2006
|
$3,048,000.00
|
|
Xxxxx, 0000
|
$5,435,000.00
|
|
April, 2006
|
$2,564,000.00
|
|
May, 2006
|
$3,449,000.00
|
|
June, 2006
|
$5,059,000.00
|
|
July, 2006
|
$3,028,000.00
|
|
August, 2006
|
$4,048,000.00
|
|
September, 2006
|
$4,449,000.00
|
-23-
SCHEDULE 3.1 (a)
JURISDICTIONS OF ORGANIZATION AND QUALIFICATION
|
Credit Party
|
Jurisdiction of Organization
|
Jurisdiction of Organization
|
|
California
|
||
|
Diagnostic Imaging Services, Inc.
|
Delaware
|
California
|
|
Radnet Management, Inc.
|
California
|
California
|
|
Xxxxxxx Radiology Medical Group, Inc.
|
California
|
California
|
|
Pronet Imaging Medical Group, Inc.
|
California
|
California
|
|
Radnet Sub, Inc.
|
California
|
California
|
|
SoCal MR Site Management, Inc.
|
California
|
California
|
|
Radnet Management I, Inc.
|
California
|
California
|
|
Radnet Management II, Inc.
|
California
|
California
|
|
Radnet Managed Imaging Services, Inc.
|
California
|
California
|
|
Xxxxxxx Radiology Medical Group, III FRI, Inc.
|
California
|
California
|
|
FRI II, Inc.
|
California
|
California
|
|
Rolling Oaks Radiology, Inc.
|
California
|
California
|
|
Rolling Oaks Imaging Corporation
|
California
|
California
|
|
Radiologix, Inc.
|
Delaware
|
Delaware, California, Florida, Kansas, Pennsylvania, Texas
|
|
Advanced Imaging Partners, Inc.
|
Delaware
|
Delaware, Maryland
|
|
Ide Imaging Partners, Inc.
|
Delaware
|
Delaware, New York
|
|
Mid Rockland Imaging Partners, Inc.
|
Delaware
|
Delaware, New York
|
|
Pacific Imaging Partners, Inc.
|
California
|
California
|
|
Questar Imaging, Inc.
|
Florida
|
Florida, Colorado
|
|
Treasure Coast Imaging Partners, Inc.
|
Delaware
|
Delaware, Florida
|
|
Community Imaging Partners, Inc.
|
Delaware
|
Delaware, Maryland
|
|
Radiology and Nuclear Medicine Imaging Partners, Inc.
|
Delaware
|
Delaware, Kansas
|
|
Valley Imaging Partners, Inc.
|
California
|
California
|
|
Questar Duluth, Inc.
|
Florida
|
Florida, Minnesota
|
|
Questar Los Alamitos, Inc.
|
Florida
|
Florida, California
|
|
Questar Victorville, Inc.
|
Florida
|
Florida, California
|
|
Delaware Imaging Partners, Inc.
|
Delaware
|
Delaware
|
-24-
SCHEDULE 3.1 (b)
|
Name
|
Authorized
|
Issued
|
Holder
|
|
|
Common Stock
|
34,789,558
|
Publicly Held
|
||
|
("Holdings")
|
$.0001 par value
|
|||
|
200,000,000 shares
|
||||
|
Preferred Stock
|
||||
|
$.0001 par value
|
||||
|
30,000,000 shares
|
0
|
N/A
|
||
|
Radnet Management, Inc.
|
Common Stock
|
1,000
|
Holdings (100%)
|
|
|
("Radnet")
|
10,000 shares
|
|||
| Xxxxxxx Radiology Medical Group, Inc. | 100,000 |
10,000
|
Xx. Xxxxxx (90%)
|
|
|
Xx. Xxxxx (10%)
|
||||
|
Pronet Imaging Medical Group, Inc.
|
100,000
|
10,000
|
Xx. Xxxxxx (90%)
|
|
|
Xx. Xxxxx (10%)
|
||||
|
Diagnostic Imaging Services, Inc.
|
Common Stock
|
5,732
|
Radnet (100%)
|
|
|
$.0001 par value
|
||||
|
10,000 shares
|
||||
|
Radnet Sub, Inc.
|
100,000 shares
|
1,000
|
Radnet (100%)
|
|
|
SoCal MR Site Management, Inc.
|
Common Stock
|
10,000
|
Radnet (100%)
|
|
|
$.01 par value
|
||||
|
5,000,000 shares
|
||||
|
Radnet Management I, Inc.
|
1,000,000
|
10,000
|
Radnet (100%)
|
|
|
Radnet Management II, Inc.
|
1,000,000
|
10,000
|
Radnet (100%)
|
|
|
Radnet Managed Imaging Services, Inc. 100,000
|
100,000
|
1,000
|
Radnet (100%)
|
|
|
FIRI, Inc.
|
100,000
|
10,000
|
Radnet (100%)
|
|
|
FRI II, Inc.
|
100,000
|
10,000
|
Radnet (100%)
|
|
|
Rolling Oaks Imaging Corporation
|
10,000
|
9,000
|
Radnet (100%)
|
|
|
Rolling Oaks Radiology, Inc.
|
20,000
|
12,996
|
Radnet (100%)
|
-25-
SCHEDULE 3.1(b)
(continued)
|
Name
|
Authorized
|
Issued
|
Holder
|
|
Radiologix, Inc.
|
Common Stock
|
100
|
Radnet (100%)
|
|
$.0001 par value
|
|||
|
3,000 shares
|
|||
|
Advanced Imaging Partners, Inc.
|
Common Stock
|
100
|
Radiologix (100%)
|
|
$0.001 par value
|
|||
|
1,000 shares
|
|||
|
Ide Imaging Partners, Inc.
|
Common Stock
|
100
|
Radiologix (100%)
|
|
$0.001 par value
|
|||
|
1,000 shares
|
|||
|
Mid Rockland Imaging Partners, Inc.
|
Common Stock
|
100
|
Radiologix (100%)
|
|
$0.001 par value
|
|||
|
1,000 shares
|
|||
|
Pacific Imaging Partners, Inc.
|
Common Stock
|
100
|
Radiologix (100%)
|
|
No par value
|
|||
|
1,000 shares
|
|||
|
Questar Imaging, Inc.
|
Common Stock
|
3,000
|
Radiologix (100%)
|
|
$1.00 par value
|
|||
|
7,000 shares
|
|||
|
Treasure Coast Imaging Partners, Inc.
|
Common Stock
|
100
|
Radiologix (100%)
|
|
$0.001 par value
|
|||
|
1,000 shares
|
|||
|
Community Imaging Partners, Inc.
|
Common Stock
|
100
|
Radiologix (100%)
|
|
$0.001 par value
|
|||
|
1,000 shares
|
|||
|
Radiology and Nuclear Medicine
|
Common Stock
|
100
|
Radiologix (100%)
|
|
Imaging Partners, Inc.
|
$0,001 par value
|
||
|
1,000 shares
|
|||
|
Valley Imaging Partners, Inc.
|
Common Stock
|
100
|
Radiologix (100%)
|
|
No par value
|
|||
|
1,000 shares
|
-26-
SCHEDULE 3.1(b)
(continued)
|
Name
|
Authorized
|
Issued
|
Holder
|
|
Questar Duluth, Inc.
|
Common Stock
$1.00 par value
1,000 shares
|
100
|
Questar Imaging(100%)
|
|
Questar Los Alamitos, Inc.
|
Common Stock
$1.00 par value
1,000 shares
|
100
|
Questar Imaging (100%)
|
|
Questar Victorville, Inc.
|
Common Stock
$1.00 par value
1,000 shares
|
100
|
Questar Imaging (100%)
|
|
Rocky Mountain OpenScan MRI, LLC (inactive)
|
Membership interests
|
100
|
Questar Imaging(100%)
|
|
Delaware Imaging Partners, Inc.
|
100,000 shares
$.0001 par value
|
100
|
Radnet (100%)
|
There are no subscriptions, options, warrants or calls relating to any shares of Holdings or any Credit Parties' capital stock, including any right of conversion or exchange under any outstanding security or other instrument except as to Holdings; Options issued to employees to purchase common shares (202,750) and Warrants issued to employees and some business entities related to Holdings (3,753,667) for an aggregate of 3,956,417.
-27-
SCHEDULE 3.11
INVESTIGATIONS AND AUDITS
NONE
-28-
SCHEDULE 3.12
Employment Agreement with Xxxxxx X. Xxxxxx, MD
dated June 12, 1992 and amended January 30, 2004
Employment Agreement with Xxxxxx X. Xxxxx
dated May 1, 2001 and amended January 30, 2004
Retention Agreement with Xxxxxxx X. Xxxxxxxxx
Employment Agreement with Xxxx X. Xxxxxxx
dated July 30, 2004
-29-
SCHEDULE 3.14
REAL ESTATE
(see attached document)
-30-
SCHEDULE 3.16
ERISA
401(k) Non Contributory Plan
-31-
SCHEDULE 3.17
DEPOSIT AND DISBURSEMENT ACCOUNTS
City National Bank
000 X. Xxxxxxx Xx.
Xxxxxxx Xxxxx, XX 00000
000-000-0000
|
Account's
|
||
|
Radnet Management, Inc.
|
001-477951
|
Operations
|
|
Radnet Management, Inc.
|
001-477935
|
Money Market
|
|
Radnet Management, Inc.
|
001-493132
|
Payroll
|
|
Xxxxxxx Radiology Medical Group
|
101-437701
|
Payroll
|
|
Xxxxxxx Radiology Medical Group
|
112-561064
|
Government Non-
|
|
Xxxxxxx Radiology Medical Group
|
112-561072
|
Government -
|
|
Xxxxxxx Radiology Medical Group — NorCal
|
112-718281
|
Government Non-
|
|
Xxxxxxx Radiology Medical Group — NorCal
|
112-718303
|
Government
|
|
Xxxxxxx Radiology Medical Group — NorCal
|
112-773258
|
Government
|
|
Diagnostic Imaging Services, Inc.
|
001-245252
|
Payroll
|
|
001-010212
|
Operations
|
|
|
Rolling Oaks Imaging Center
|
052-080207
|
Operations
|
|
Radnet Management
|
101-182673
|
Refund Account
|
|
Radnet Management, Inc.
|
112-813519
|
Restricted Cash
|
See attached document for listing of Radiologix, Inc. accounts.
-32-
SCHEDULE 3.18
AGREEMENTS AND OTHER DOCUMENTS
Fuji Film Medical Imaging Film Agreement
dated as of May 1, 2007 by and between RadNet, Inc. and Fuji Film Medical Systems U.S.A., Inc.
Amended and Restated Management and Services Agreement
dated January 1, 2004 between Radnet Management and Xxxxxxx Radiology Medical Group III
Partnership Agreement dated July 1, 1997 between Xxxxxxx Radiology Medical Group, Inc. and Pronet Imaging Medical Group, Inc.
General Electric Service Agreement dated August 14, 2001 as last amended effective January 1, 2007 by and between GE Medical Systems and Radnet Management, Inc.
PetNet Radiopharmaceutical Purchase Agreement dated September 13, 2004 as last amended December 10, 2007 by and between PETNET Solutions and Radnet Management, Inc.
General Electric Healthcare Financial Services Ref #8537637
dated December 30, 2004 by and between General Electric Capital Corporation and Radnet Management, Inc.
General Electric Healthcare Financial Services Ref #8536064
dated November 8, 2004 by and between General Electric Capital Corporation and Radnet Management, Inc.
General Electric Healthcare Financial Services Ref #8535299
dated September 17, 2004 by and between General Electric Capital Corporation and Radnet Management, Inc.
Agreement and Plan of Merger with Radiologix, Inc. dated as of July 6, 2006 by and between Primedex Health Systems, Inc., PR Acquisition Corporation, Radnet Management, Inc. and Radiologix, Inc.
Contracting Services Agreement dated as of October 1, 2006 by and between Broadlane, Inc. and Radiologix, Inc.
Kodak Medical Imaging film agreement with Radnet Management, Inc. dated December 20, 2006
-33-
RADNET INSURANCE CARRIERS
2007/2008- Current Insurance Lines
|
UNE
|
CARRIER NAME
|
POUCY #
|
TERM
|
PREMIUM
|
POLICY UMITS
|
|||
|
General Liability
|
Hartford
|
72UUNUM8682
|
11/01/07-11/01/08
|
$ | 475,411.20 |
varies
|
||
|
Commercial Property
|
'
|
"
|
11/01/07-11/01/08
|
varies
|
||||
|
Commerical Crime.
|
"
|
"
|
11/01/07-11/01/08
|
250,000 | ||||
|
Commerical Automobile,
|
. |
"
|
11/01/07-11/01/08
|
1M | ||||
|
Excess Liability/umbrella
|
. |
72XHUUM8726
|
11101/07-11/01/08
|
$ | 24,400.00 | 10M | ||
|
Directors & Officers
|
AIG
|
6723807 |
06/01/07-06/01/08
|
$ | 144,921.00 | 10M | ||
|
Professional Liability
|
Fairway Physicians
|
FPC1420-00
|
10/01/07-10/01/08
|
$ | 2,050,790.00 | 1M/3M | ||
|
Work Comp
|
Travelers
|
TRHU8424613123
|
11101/07-11/01/08
|
$1,788,000 +
losses
|
1M | |||
|
Medical
|
Blue Shield - Self ins
|
970271,970264, 970265 |
01/01/08-12/30/08
|
3 8,227,000.00 |
Seff-fundedexpectedpremium
|
|||
|
Dental
|
Delta Dental
|
05662 & 2845
|
01/01/08-12/30/08
|
377,109.00 | ||||
|
Vision
|
Vision Service Plan
|
12092356 |
01/01/08-12/30/08
|
187,000.00 | ||||
|
Life
|
Reliance
|
100256-010-0001 |
01/01/08-12/30/08
|
$ | 386,000.00 |
1x annual salary to 150K
|
||
|
Long Term Disability
|
Reliance
|
100256-010-0001 |
01/01/08-12/31/08
|
$ | 383,000.00 | |||
-34-
SCHEDULE 5.1
INDEBTEDNESS
NONE
-35-
SCHEDULE 5.2
LIENS
NONE
-36-
SCHEDULE 5.6
EXCEPTION TO RESTRICTIONS ON FUNDAMENTAL CHANGES
NONE
-37-
SCHEDULE 5.9
BUSINESS DESCRIPTION
Credit Parties operate a group of regional networks currently comprised of one hundred forty-five (145) diagnostic imaging facilities.
-38-
