RECITALS --------
EXHIBIT 10.23
AMENDMENT NO. 3 TO SECOND LIEN CREDIT AGREEMENT
This AMENDMENT NO. 3 TO SECOND LIEN 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 Second Lien Credit Agreement dated as of November 15,
2006 (as amended by that certain Limited Waiver and Amendment No. 1 to Second
Lien Credit Agreement dated April 5, 2007 and that certain Amendment No. 2 to
Second Lien 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 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."
1
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
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 "$22,000,000" 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"):
2
MAXIMUM CAPITAL
EXPENDITURES
PERIOD PER PERIOD
------ ---------------
Fiscal Year 2007 $44,000,000
Fiscal Year 2008 $44,000,000
Fiscal Year 2009 $47,000,000
Fiscal Year 2010 and each Fiscal Year $47,000,000
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
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(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.
AMENDMENT TO ANNEX A. ANNEX A of the Credit Agreement
is hereby amended by inserting the following defined terms in their appropriate
alphabetical order:
"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."
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) (EBITDA)
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.
3
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
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 of the Amendment No. 3 to the First Lien
Credit Agreement, in form, substance and manner satisfactory to the
Agent; and
(c) The Agent shall have received a nonrefundable amendment
fee equal to $120,000 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.
4
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.
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" in the Loan Documents shall take into
account the provisions of this Amendment and be a reference to the "Credit
Agreement" as amended hereby.
* *
5
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.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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XXXXXXX RADIOLOGY MEDICAL GROUP III
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By: ProNet Imaging Medical Group, Inc., its general partner
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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By: Xxxxxxx Radiology Medical Group, Inc., its general partner
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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PRONET IMAGING MEDICAL GROUP, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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XXXXXXX RADIOLOGY MEDICAL GROUP, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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RADNET SUB, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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SO CAL MR SITE MANAGEMENT, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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RADNET MANAGEMENT I, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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RADNET MANAGEMENT II, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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RADNET MANAGED IMAGING SERVICES, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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DIAGNOSTIC IMAGING SERVICES, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: Chief Financial Officer
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RADIOLOGIX, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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ADVANCED IMAGING PARTNERS, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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IDE IMAGING PARTNERS, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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MID ROCKLAND IMAGING PARTNERS, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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PACIFIC IMAGING PARTNERS, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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QUESTAR IMAGING, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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TREASURE COAST IMAGING PARTNERS, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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COMMUNITY IMAGING PARTNERS, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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RADIOLOGY AND NUCLEAR MEDICINE IMAGING PARTNERS, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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VALLEY IMAGING PARTNERS, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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QUESTAR DULUTH, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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QUESTAR LOS ALAMITOS, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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QUESTAR VICTORVILLE, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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ROCY MOUNTAIN OPENSCAN MRI, LLC
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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FRI, INC.
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx, M.D.
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Title: President
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GENERAL ELECTRIC CAPITAL
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CORPORATION
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as Agent and a Lender
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By:
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/s/ Xxxxxx Xxxxx
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Duly Authorized Signatory
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Brencourt BD, LLC., as Lender
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By:
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/s/Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: CFO
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11
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Man Mac Schreckhorn 14B Ltd., as Lender
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By:
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/s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: CFO
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CIFC Funding 2006-I, Ltd
as Lender
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By:
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/s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
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Title: General Counsel
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PREMIER FUNDING, LTD., as a Lender
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By: Citigroup Global Markets Realty Corp., as
Collateral Administrator
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By:
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/s/ authorized signatory
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Name: Authorized Signatory
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[XXXXX FUNDING], as a Lender
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By:
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/s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: Authorized Signatory
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CypressTree CLAIF Funding LLC, as a Lender
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By:
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/s/ Xxxx X. Xxxxx
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Name: Xxxx X.Xxxxx
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Title: Assistant Vice President
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INVESTORS BANK & TRUST COMPANY AS SUB-CUSTODIAN AGENT OF CYPRESSTREE INTERNATIONAL LOAN HOLDING COMPANY LIMITED
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By:
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/s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
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Title: Managing Director
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By:
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/s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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Title: Managing Director
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XXXXX XXXXX SENIOR INCOME TRUST, as a Lender
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By: Xxxxx Xxxxx Management as Investment Advisor
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By:
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/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXX XXXXX CDO VII PLC, as a Lender
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By: Xxxxx Xxxxx Management as Investment Advisor
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By:
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/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXX XXXXX CDO VIII PLC, as a Lender
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By: Xxxxx Xxxxx Management as Investment Advisor
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By:
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/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXX XXXXX CDO X PLC, as a Lender
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By: Xxxxx Xxxxx Management as Investment Advisor
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By:
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/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXX XXXXX SENIOR FLOATING-RATE TRUST, as a Lender
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By: Xxxxx Xxxxx Management as Investment Advisor
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By:
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/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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| 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 | ||
14
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Crystal Capital Fund, Ltd., as a Lender
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As duly authorized:
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Crystal Capital Fund Management, L.P.
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By: Crystal Capital Fund GP, LLC, its General Partner
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By:
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/s/Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Executive Managing Director
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Crystal Capital Fund, L.P., , as a Lender
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By: Crystal Capital Fund GP, LLC, its General Partner
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By:
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/s/Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Executive Managing Director
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XXXXX CATALYST PARTNERS, LLC, as a Lender
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By:
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/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Managing Director
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TELOS CLO 2007-2, LTD, as a Lender
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By:
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/s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
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Title: Principal
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S.A.C. CAPITAL ASSOCIATES, LLC, as a Lender
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By: S.A.C. Capital Advisors, LLC, its General Partner
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By:
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/s/Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: Authorized Signatory
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15
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Grand Central Asset Trust, DES Series, as a Lender
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By:
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/s/ Xxx Xxxx
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Name: Xxx Xxxx
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Title: Attorney-in-fact
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Canadian Imperial Bank of Commerce, as a Lender
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By:
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/s/ Xxxx X’Xxxx
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Name: Xxxx X’Xxxx
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Title: Authorized Signatory
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16
ANNEX F TO AMENDMENT NO. 3 TO SECOND CREDIT AGREEMENT
MINIMUM FIXED CHARGE COVERAGE RATIO
(Section 6.1(c))
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EBITDA (calculated in Section 6.1(b) of this Annex)
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$ ___________ |
| $ Less: any provision for income taxes (whether paid or payable in cash) | ___________ |
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Capital Expenditures (calculated in Section 6.1(a) of this Annex), other than the portion thereof funded by third party financing
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___________ |
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Operating Cash Flow
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$ |
| =========== | |
| $ Fixed Charge Coverage Ratio is defined as follows: | |
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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
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Less: Amortization of capitalized fees and expenses incurred with respect to the Related Transactions included in interest expense above
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$ ___________ |
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Amortization of any original discount attributable to any Funded Debt or warrants included in interest expense above
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____________ |
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Interest paid in kind and included in interest expense above
|
____________ |
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Imputed interest or other non-cash interest related to swap or other interest rate agreements
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____________ |
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Interest Expense*
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$ ____________ |
| Plus: Scheduled payments of principal with respect to all Indebtedness** | ____________ |
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Fixed Charges
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$
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| ============ | |
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Fixed Charge Coverage Ratio (Operating Cash Flow from above, divided by Fixed Charges)
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* 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.
SCHEDULE II
EXHIBIT 6.2(d)
EBITDA
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Consolidated Net Income is defined as follows:
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Net income during the measuring period on a consolidated basis
excluding:
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_____________
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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
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_____________
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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
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_____________
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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
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_____________
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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
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_____________
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any net gain attributable to the write-up of any asset
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_____________
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any loss attributable to the write-down of any asset (other than Accounts and Inventory)
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_____________
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any net gain from the collection of the proceeds of life insurance policies
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_____________
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any net gain arising from the acquisition of any securities, or the extinguishment of any Indebtedness, of Holdings or any of its Subsidiaries
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_____________
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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
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_____________
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Consolidated Net Income
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$____________
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EBITDA is defined as follows:
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_____________
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Consolidated Net Income (from above)
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_____________
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Less: (in each case to the extent included in the calculation of Consolidated Net Income, but without duplication):
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_____________
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income tax credits
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_____________
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interest income
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_____________
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gain from extraordinary items
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_____________
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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
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_____________
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any other non-cash gains
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_____________
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expenditures related to the Related Transactions and not reflected on the Pro Forma or the footnotes thereto
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_____________
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non-recurring gains
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_____________
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Plus: (in each case to the extent deducted in the calculation of Consolidated Net Income, but without duplication):
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_____________
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any provision for income taxes
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_____________
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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
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_____________
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depreciation and amortization
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_____________
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amortized debt discount (but in the case of amortization and expenses of Related Transactions, only to the extent included in the Pro Forma)
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_____________
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any deduction as the result of any grant to any members of the management of Holdings or any of its Subsidiaries of any Stock
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_____________
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loss from extraordinary items
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_____________
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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
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_____________
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any other non-cash losses (other than non-cash losses relating to write-offs, write-downs or reserves with respect to Accounts and Inventory)
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_____________
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expenses of the Related Transactions, provided that such expenses were included in the Pro Forma, or disclosed in any notes thereto
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_____________
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employee severance expenses and retention bonuses in an aggregate amount not to exceed $2,600,000 paid on or prior to December 31, 2007 which expenses arose as a result of the transactions contemplated by the Radiologix Merger Agreement for all periods ending on or after the Closing Date
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_____________
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Other agreed to adjustments1
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_____________
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Plus: Pro Forma Cost Savings2
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_____________
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EBITDA3
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$ _____________ |
____________________
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
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Fiscal Month
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Adjustment
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December, 2006
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$10,975,410.00
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January, 2007
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$10,929,679.10
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February, 2007
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$10,838,217.40
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Xxxxx, 0000
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$10,701,024.80
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April, 2007
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$10,518,101.30
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May, 2007
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$10,280,300.70
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June, 2007
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$9,978,476.90
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July, 2007
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$9,603,483.80
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August, 2007
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$9,137,028.80
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September, 2007
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$8,569,966.00
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October, 2007
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$7,893,149.00
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November, 2007
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$7,097,431.80
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December, 2007
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$6,301,714.60
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January, 2008
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$5,432,828.00
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February, 2008
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$4,609,672.20
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Xxxxx, 0000
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$3,832,247.30
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April, 2008
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$3,100,553.30
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May, 2008
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$2,423,736.40
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Jiine, 2008
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$1,810,942.70
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July, 2008
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$1,271,318.30
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August, 2008
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$823,155.80
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September, 2008
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$475,601.10
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October, 2008
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$237,800.60
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November, 2008
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$118,900.30
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EXHIBIT B
EBITDA OF RADIOLOGIX AND ITS SUBSIDIARIES
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Fiscal Month
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EBITDA
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September, 2005
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$3,939,000.00
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October, 2005
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$3,796,000.00
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November, 2005
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$2,545,000.00
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December, 2005
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$4,386,000.00
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January, 2006
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$3,430,000.00
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February, 2006
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$3,048,000.00
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|
Xxxxx, 0000
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$5,435,000.00
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April, 2006
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$2,564,000.00
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May, 2006
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$3,449,000.00
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June, 2006
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$5,059,000.00
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July, 2006
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$3,028,000.00
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August, 2006
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$4,048,000.00
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September, 2006
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$4,449,000.00
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