RECITALS --------
EXHIBIT 10.17
AMENDMENT NO. 3 TO CREDIT AGREEMENT
This AMENDMENT NO. 3 TO CREDIT AGREEMENT (this "AMENDMENT"),
dated as of August 23, 2007, 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 Limited Waiver and Amendment No. 1 to Credit Agreement
dated April 5, 2007 and that certain Amendment No. 2 to Credit Agreement dated
May 30, 2007 and as further amended, supplemented, restated or otherwise
modified from time to time, the "CREDIT AGREEMENT"); and
WHEREAS, the Borrowers, Agent and Requisite Lenders have agreed to the
amendments 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:
AMENDMENTS TO CREDIT AGREEMENT.
-------------------------------
AMENDMENT TO CREDIT AGREEMENT. The Credit Agreement
is hereby amended by replacing each occurrence of the words "Primedex Health
Systems" with the word "RadNet" therein.
AMENDMENT TO SECTION 1.1(A). SECTION 1.1(A) of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"TERM LOAN B. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of
the Credit Parties contained herein, the Term Lenders made a term loan
to the Borrower on the Closing Date, in the aggregate principal amount
of $225,000,000, the outstanding aggregate principal balance of which
is $223,875,000 immediately prior to the Amendment No. 3 Closing Date.
Subject to the terms and conditions of this Agreement and in reliance
upon the representations and warranties of the Credit Parties contained
herein, each Term Lender, severally and not jointly, agrees to lend to
the Borrower, in one draw, on the Amendment No. 3 Closing Date an
amount such that, after giving effect to such loan, the amount of each
1
Term Loan B (as defined below) held by each Term Lender shall be as set
forth opposite such Lender's name in ANNEX B under the heading Term
Loan B Commitment. Amounts borrowed under this SUBSECTION (A) are
collectively referred to as the "TERM LOAN B." Borrower shall repay
Term Loan B through periodic payments on the dates and in the amounts
indicated below ("SCHEDULED INSTALLMENTS").
Scheduled
Date Installment
---- -----------
Beginning with September 30, 2007, each March 31, $625,000
June 30, September 30 and December 31 occurring
prior to September 30, 2012
November 15, 2012 $236,375,000
The final installment shall in all events equal the entire
remaining principal balance of the Term Loan B. Notwithstanding the
foregoing, the outstanding principal balance of the Term Loan B shall
be due and payable in full on the Commitment Termination 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 B 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 B" and, collectively, the
"TERM NOTES B"), and, except as provided in SECTION 1.7, Borrower shall
execute and deliver each Term Note B to the applicable Lender. Each
Term Note B shall represent the obligation of Borrower to pay the
amount of the applicable Lender's Term Loan B Commitment, together with
interest thereon."
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. 3 Closing Date
(collectively, the "GE CAPITAL FEE LETTER"), at the times specified for
payment therein."
AMENDMENT TO SECTION 1.5(D). SECTION 1.5(D) of the
Credit Agreement is hereby amended to be titled "PREPAYMENTS FROM ISSUANCE OF
SECURITIES; SEGREGATED ACCOUNT" and is amended to include the following sentence
at the end thereof:
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"On the one hundred twentieth day following the Amendment No.
3 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 has not been used to pay the purchase
price of the Strategic Initiatives."
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. 3 Closing Date,
Borrower has deposited into deposit account number 112-813519 at City
National Bank $10,200,000 ("Segregated Account") which (i) funds will
be used solely to (A) pay for Strategic Initiatives approved in writing
by the Administrative 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)."
AMENDMENT TO SECTION 4.9. SECTION 4.9 of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
"4.9 CASH MANAGEMENT SYSTEMS. Borrower shall, and shall cause each
other Credit Party to, (i) enter into Control Agreements with respect to each
deposit account maintained by Borrower or any Subsidiary of Borrower (other than
(a) any payroll account or other disbursement account which is a zero balance
account and (b) any account (a "GOVERNMENTAL ACCOUNT") into which amounts are
paid by a governmental entity pursuant to one or more Health Care Laws) as of or
after the Closing Date and (ii) cause all amounts on deposit in or credited to
each Governmental Account to be transferred, every Business Day, to an account
subject to a Control Agreement. Each such deposit account control agreement
shall be in form and substance reasonably satisfactory to Agent."
AMENDMENT TO SECTION 5.1(F). SECTION 5.1(F) of the
Credit Agreement is hereby amended by replacing the amount "$15,000,000" which
appears therein with "$20,000,000".
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
$12,000,000 (or an amount not to exceed $12,500,000 with respect to the
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Borg Acquisition) and the sum of such amounts payable in connection
with all Permitted Acquisitions shall not exceed $50,000,000, and the
portion thereof allocable to goodwill and intangible assets for all
such Permitted Acquisitions during the term hereof shall not exceed
$30,000,000."
AMENDMENT TO SECTION 5.7. SECTION 5.7 of the Credit
Agreement is hereby amended by
inserting the following new clause (d):
"(d) the Identified Sale-Leaseback."
AMENDMENT TO SECTION 5.17. SECTION 5.17 of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
"5.17 SALE-LEASEBACKS.
Other than the Identified Sale-Leaseback, the Credit Parties shall not
and shall not cause or permit any of their Subsidiaries to engage in any
sale-leaseback, synthetic lease or similar transaction involving any of its
assets."
AMENDMENT TO SECTION 5.20. SECTION 5.20 of the Credit
Agreement is hereby amended by replacing the amount "$25,500,000" which appears
therein with "$35,000,000".
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"):
MAXIMUM CAPITAL
EXPENDITURES
PERIOD PER PERIOD
------ ---------------
Fiscal Year 2007 $42,000,000
Fiscal Year 2008 $42,000,000
Fiscal Year 2009 $45,000,000
Fiscal Year 2010 and each Fiscal Year $45,000,000
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
4
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."
AMENDMENT TO SECTION 6.2(D). SECTION 6.2(D) of the
Credit Agreement is hereby amended by replacing the word "Month" which appears
therein with the word "Quarter".
AMENDMENT TO SECTION 6.2(E). SECTION 6.2(E) of the
Credit Agreement is hereby amended by replacing the reference to "SECTIONS
6.2(A)(III) AND (B)" with "SECTIONS 6.2(A)(I) AND (B)" therein, replacing the
word "Month" which appears therein with the word "Quarter" and by deleting the
phrase "and the portion of the current Fiscal Quarter then elapsed" therein.
AMENDMENTS TO ANNEX A. ANNEX A of the Credit
Agreement is hereby amended by inserting the following defined terms in their
appropriate alphabetical order:
"AMENDMENT NO. 3 CLOSING DATE MEANS AUGUST 23, 2007."
"GOVERNMENTAL ACCOUNT HAS THE MEANING ASCRIBED TO IT IN SECTION 4.9."
"IDENTIFIED SALE-LEASEBACK MEANS THE SALE-LEASEBACK OF ASSETS IDENTIFIED TO
AGENT IN AN AMOUNT NOT TO EXCEED $13,000,000 ON TERMS AND PURSUANT TO
DOCUMENTATION ACCEPTABLE TO AGENT."
"SEGREGATED ACCOUNT HAS THE MEANING ASCRIBED TO IT IN SECTION 3.25."
"STRATEGIC INITIATIVES MEANS ANY ACQUISITIONS, INVESTMENTS, OR OTHER
INITIATIVES TAKEN BY BORROWER AND APPROVED IN ADVANCE IN WRITING BY THE AGENT."
AMENDMENTS TO ANNEX A. ANNEX A of the Credit
Agreement is hereby amended by amending and restating the following definitions
to each read in its entirety as follows:
"COMMITMENTS means (a) as to any Lender, the aggregate of such
Lender's Revolving Loan Commitment and Term Loan B Commitment as set
forth on ANNEX B to the Agreement (as supplemented by SUPPLEMENTAL
ANNEX B to the Agreement) or in the most recent Assignment Agreement
executed by such Lender and (b) as to all Lenders, the aggregate of all
Lenders' Revolving Loan Commitments and Term Loan B Commitments, which
aggregate commitment shall be THREE HUNDRED FIVE MILLION DOLLARS
($305,000,000) on the Amendment No. 3 Closing Date, as such Commitments
may be reduced, amortized or adjusted from time to time in accordance
with this Agreement."
"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
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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 (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."
"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 (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)."
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.
AMENDMENT TO ANNEX F. SECTION 6.1(C) (Minimum Fixed
Charge Coverage Ratio) to ANNEX F is hereby replaced with the revised Section
6.1(c) attached as ANNEX F to this Amendment.
AMENDMENT TO EXHIBIT 6.2(D). EXHIBIT 6.2(D)
(Borrowing Base Certificate) is hereby replaced with the revised EXHIBIT 6.2(D)
attached as EXHIBIT 6.2(D) to this Amendment.
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, 5.2, 5.6, and 5.9 to the Credit
Agreement is hereby replaced with the applicable SCHEDULE attached hereto.
REPRESENTATIONS AND WARRANTIES OF CREDIT PARTIES. The Credit
Parties represent and warrant that:
the execution, delivery and performance by each Credit
Party of this Amendment have been duly authorized by all necessary
corporate action required on its part and this Amendment is a legal,
valid and binding obligation of such Credit Party enforceable against
such Credit Party in accordance with its terms except as the enforcement
thereof may be subject to (i) the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and (ii) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law); and
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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.
CONDITIONS TO EFFECTIVENESS. This Amendment shall be effective
upon satisfaction of the following conditions precedent:
This Amendment shall have been executed and delivered by the Agent, Requisite
Lenders and the Credit Parties;
The execution and delivery or satisfaction of each of the agreements, documents
or other instruments or conditions set forth in the closing checklist attached
hereto as EXHIBIT A (the "CLOSING CHECKLIST"), in form, substance and manner
satisfactory to the Agent;
The execution and delivery of the Amendment No. 3 to the Second Lien Credit
Agreement, in form, substance and manner satisfactory to the Agent; and
(d) The Agent shall have received a nonrefundable
amendment fee equal to $281,275 which shall be fully
earned and payable on the date hereof.
REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT.
The Credit Agreement and the other Loan Documents shall
remain in full force and effect, as amended hereby, and are hereby
ratified and confirmed.
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.
GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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.
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.
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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.
* * *
8
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
RADNET, INC.
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
9
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
10
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
11
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
12
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
13
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
GENERAL ELECTRIC CAPITAL CORPORATION
as Agent and a Lender
By: /s/ Xxxxxx Xxxxx
------------------------------------
Duly Authorized Signatory
14
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
15
ACA CLO 2006-2, Limited, as a Lender
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Directory
ACA CLO 2007-1, Limited, as a Lender
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Directory
Greyrock CDO Limited
By Aladdin Capital Management LLC, as
Manager
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Directory
Landmark II CDO Limited
By Aladdin Capital Management, LLC, as
Manager
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Designated Signatory
16
Landmark IX CDO Limited
By Aladdin Capital Management, LLC, as
Manager
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Designated Signatory
Landmark VI CDO Limited
By Aladdin Capital Management, LLC, as
Manager
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Designated Signatory
Landmark VII CDO Limited
By Aladdin Capital Management, LLC, as
Manager
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Designated Signatory
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
17
Brencourt BD, LLC., as Lender
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: CFO
Man Mac Schreckhorn 14B Ltd., as Lender
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: CFO
CIFC Funding 2005-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
PREMIER FUNDING, LTD., as a Lender
By: Citigroup Global Markets Realty
Corp., as Collateral Administrator
By: /s/ authorized signatory
------------------------------------
Name: Authorized Signatory
18
ColumbusNova CLO Ltd. 2006-II as Lender
By: /s/ Xxxx X. Cal
------------------------------------
Name: Xxxx X. Cal
Title: Associate Director
ColumbusNova CLO Ltd. 2007-I as Lender
By: /s/ Xxxx X. Cal
------------------------------------
Name: Xxxx X. Cal
Title: Associate Director
ColumbusNova CLO Ltd. 2007-II as Lender
By: /s/ Xxxx X. Cal
------------------------------------
Name: Xxxx X. Cal
Title: Associate Director
[XXXXX FUNDING], as a Lender
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Authorized Signatory
CypressTree CLAIF Funding LLC, as a
Lender
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X.Xxxxx
Title: Assistant Vice President
19
Evergreen CBNA Loan Funding LLC, as
a Lender
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Attorney-in-fact
INVESTORS BANK & TRUST COMPANY AS SUB-
CUSTODIAN AGENT OF CYPRESSTREE
INTERNATIONAL LOAN HOLDING COMPANY
LIMITED
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
Grand Central Asset Trust, BDC, Series,
as a Lender
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Attorney-in-fact
20
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
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
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
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
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
21
SENIOR DEBT PORTFOLIO, as a Lender
By: Boston Management and Research as
Investor 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 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 X PLC, as a Lender
By: Xxxxx Xxxxx Management as Investment
Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
22
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
VT FLOATING-RATE INCOME FUND
By: Xxxxx Xxxxx Management 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
23
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
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
24
TELOS CLO 2006-1, LTD, as a Lender
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Principal
TELOS CLO 2007-2, LTD, as a Lender
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/ Xxxxx XxXxxxxx
------------------------------------
Name: Xxxxx XxXxxxxx
Title: Managing Director
COLTS 2001-1, LTD., as a Lender
by: Structured Asset Investors, LLC
as Collateral Manager
By: /s/ Xxxxx XxXxxxxx
------------------------------------
Name: Xxxxx XxXxxxxx
Title: Managing Director
Grand Central Asset Trust, DES Series,
as a Lender
By: /s/ Xxx Xxxx
------------------------------------
Name: Xxx Xxxx
Title: Attorney-in-fact
25
ANNEX B TO AMENDMENT NO. 3 TO CREDIT AGREEMENT
SUPPLEMENTAL ANNEX B
PRO RATA SHARES AND COMMITMENT AMOUNTS
The existing Commitments of each Lender set forth below shall be increased by the amount set forth below:
Lender: General Electric Capital Corporation
Term Loan B Commitment: $25,000,000
Lender: Royal Bank of Canada
Revolving Loan Commitment: $10,000,000
ANNEX F TO AMENDMENT NO. 3 TO CREDIT AGREEMENT
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.
EXHIBIT 6.2(d) TO AMENDMENT NO. 3 TO CREDIT AGREEMENT
EXHIBIT 6.2(d)
BORROWING BASE CERTIFICATE
RADNET MANAGEMENT, INC.
Date: ___________________9
This Certificate is given by Radnet Management, Inc. ("Borrower") pursuant to subsection 6.2(d) 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)
|
Attached hereto as Schedule I is a calculation of the [proposed] Borrowing Base for Borrower as of the above date;
|
|
(b)
|
Attached hereto as Schedule II is a calculation of EBITDA for Holdings and its Subsidiaries as of the above date;
|
|
(c)
|
Based on such schedule, the [proposed] Borrowing Base as of the above date is:
|
IN WITNESS WHEREOF, Borrower has caused this Certificate to be executed by its ______________ this ____ day of __________________
RADNET MANAGEMENT, INC.
By: ____________________________
Its: ____________________________
SCHEDULE I
EXHIBIT 6.2(d)
CALCULATION OF BORROWING BASE
|
(a)
|
Applicable Senior Multiple Multiplied by:
|
$ _________
|
|
|
(b)
|
EBITDA (calculated in Schedule II to this Exhibit 6.2(d)) for twelve-month period ending on [insert date of most recent monthly financial statements required to be delivered pursuant to Section 6.1(a) of Credit Agreement] the "Defined Period")
|
$ _________
|
|
|
(c)
|
Product of (a) and (b)
|
$ _________
|
|
|
Less:
|
|||
|
(d)
|
Outstanding principal balance of all Senior Debt of Holdings and its Subsidiaries as of [insert date of Borrowing Base Certificate] other than Revolving Loans
|
$ _________
|
|
|
(e)
|
((c) minus (d)) (if not a positive number, such amount shall be deemed to be zero)
|
|
$ _________ |
|
(f)
|
Applicable Total Multiple
|
$ _________
|
|
|
Multiplied by:
|
|||
|
(g)
|
EBITDA (calculated in Section 6.1(b) of this Annex) for twelve-month period ending on [insert date of most recent monthly financial statements required to be delivered pursuant to Section 6.1(a) of Credit Agreement] the "Defined Period")
|
$ _________
|
|
|
(h)
|
Product of (f) and (g)
|
$ _________
|
|
| Less: | |||
| (i) | Outstanding principal balance of total Funded Debt of Holdings and its Subsidiaries as of [insert date of Borrowing Base Certificate] other than Revolving Loans |
$ _________
|
|
| (j) | ((h) minus (i)) (if not positive number, such amount shall be deemed to be zero) |
$ _________
|
|
| (k) | Borrowing Base as of [insert date of Borrowing Base Certificate] (lesser of (e) and (j)) | $ _________ | |
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
|
$____________
|
|
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
|
_____________
|
|
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
|
_____________
|
|
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
|
_____________
|
|
Plus: Pro Forma Cost Savings2
|
_____________
|
|
EBITDA3
|
$ _____________ |
____________________
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.
2. With respect to each trailing twelve month period ending on the Fiscal Quarter as specified on Exhibit A attached hereto, Pro Forma Cost Savings shall be deemed to be the amount set forth opposite such Fiscal Quarter on Exhibit A.
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).
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
|
|
Jiine, 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
|
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
|
