Exhibit 10.26


 


EXECUTION COPY


 


FOURTH AMENDMENT TO CREDIT AGREEMENT


 


THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”),
dated as of February 22, 2005, is by and among INSIGHT HEALTH SERVICES
CORP., a Delaware corporation (the “Borrower”), the Guarantors parties
hereto, the Lenders parties hereto, BANK OF AMERICA, N.A., as Administrative
Agent for the Lenders (in such capacity, the “Administrative Agent”),
WACHOVIA BANK, NATIONAL ASSOCIATION (formerly known as First Union National
Bank), as Syndication Agent (in such capacity, the “Syndication Agent”)
and THE CIT GROUP/BUSINESS CREDIT, INC., as Documentation Agent (in such
capacity, the “Documentation Agent”).


 


W I T N E S S E T H


 


WHEREAS, the Borrower, the Parent, the Subsidiary
Guarantors, the Lenders, the Administrative Agent, the Syndication Agent and
the Documentation Agent are parties to that certain Credit Agreement dated as
of October 17, 2001 (as amended by that certain First Amendment to
Credit Agreement, Waiver and Consent dated as of January 24, 2003,
that certain Second Amendment to Credit Agreement, Waiver and Consent dated as
of July 11, 2003, and that certain Third Amendment to Credit Agreement,
Waiver and Consent dated as of February 26, 2004, the “Existing Credit
Agreement”);


 


WHEREAS, the Borrower has requested that certain
provisions of the Existing Credit Agreement be amended; and


 


WHEREAS, the parties have
agreed to amend the Existing Credit Agreement as set forth herein.


 


NOW, THEREFORE, in consideration of the agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:


 


PART 1

DEFINITIONS


 


SUBPART 1.1       Certain
Definitions.  Unless otherwise
defined herein or the context otherwise requires, the following terms used in
this Amendment, including its preamble and recitals, have the following
meanings:


 


“Amended Credit Agreement” means the Existing
Credit Agreement as amended hereby.


 





















 


“Fourth Amendment Effective Date” is defined
in the first paragraph of Part 3 hereof.


 


SUBPART 1.2       Other
Definitions.  Unless otherwise
defined herein or the context otherwise requires, terms used in this Amendment,
including its preamble and recitals, have the meanings provided in the Amended
Credit Agreement.


 


PART 2

AMENDMENTS TO EXISTING CREDIT AGREEMENT


 


Effective on (and subject to the occurrence of) the
Fourth Amendment Effective Date, the Existing Credit Agreement is hereby
amended in accordance with this Part 2.


 


SUBPART 2.1       Amendments
to Section 1.1. Section 1.1 of the Existing Credit Agreement is
hereby amended in the following respects:


 


(a)           The
definition of “Restricted Subsidiary” appearing in Section 1.1 of
the Existing Credit Agreement is hereby amended in its entirety to read as
follows:


 


“Restricted Subsidiary” means any direct or
indirect Subsidiary of the Borrower which is not an Unrestricted Joint Venture.


 


(b)           The
definition of “Subsidiary” appearing in Section 1.1 of the Existing
Credit Agreement is hereby amended in its entirety to read as follows:


 


“Subsidiary” means, as to any Person at any
time, (a) any corporation (including any Joint Venture) more than 50% of whose
Capital Stock of any class or classes having by the terms ordinary voting power
to elect a majority of the directors of such corporation (irrespective of
whether or not at such time, any class or classes of such corporation shall
have or might have voting power by reason of the happening of any contingency)
is at such time owned by such Person directly or indirectly through
Subsidiaries, and (b) any partnership, association, joint venture or other
entity (including any Joint Venture) of which such Person directly or
indirectly through Subsidiaries owns at such time more than 50% of the Capital
Stock.


 


(c)           The
following new definition is added to Section 1.1 of the Existing Credit
Agreement in proper alphabetical order:


 


“TRIA” means Toms River Imaging Associates,
L.P., a New Jersey general partnership.


 


(d)           The definition of “Unrestricted Joint Venture” appearing
in Section 1.1 of the Existing Credit Agreement is hereby amended
in its entirety to read as follows:


 


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“Unrestricted Joint Venture” means
(i) each Person which is a Joint Venture as of the Closing Date and is
designated on Schedule 1.1B as an “Unrestricted Joint Venture”,
(ii) any Joint Venture acquired or created by the Credit Parties after the
Closing Date and which is not a direct or indirect Subsidiary of the Borrower,
(iii) any Joint Venture acquired or created by the Credit Parties after
the Closing Date and which is a direct or indirect Subsidiary of the Borrower
designated by the Credit Parties in writing to the Administrative Agent
concurrently with the acquisition or creation of such Joint Venture as an
“Unrestricted Joint Venture” for purposes of this Credit Agreement,
(iv) any Joint Venture with respect to which the Borrower shall not have,
directly or indirectly, control (whether through ownership of Voting Stock of
such Joint Venture, by contract or otherwise) over the making of dividends and
other payments or distributions on account of all of the Capital Stock of such
Joint Venture, and (v) from and after February 22, 2005, TRIA.  Any Unrestricted Joint Venture which is a
direct or indirect Subsidiary of the Borrower (other than any Joint Venture
described in clause (iv) of the immediately preceding sentence) may be
designated a Restricted Subsidiary so long as at the time of and immediately
after giving effect to such designation, no Default or Event of Default shall
exist hereunder; provided, however, that any Unrestricted Joint
Venture which has been designated a Restricted Subsidiary shall not at any time
thereafter be designated an Unrestricted Joint Venture.


 


SUBPART 2.2       Amendment to Section 7.1.
Section 7.1 of the Existing Credit Agreement is hereby amended to include
a new subsection Section 7.1(l):


 


(l)            Acknowledgment
Regarding TRIA.  The parties hereto
hereby agree and acknowledge that (i) with respect to the fiscal year of the
Borrower ending June 30, 2005, the financial statements of the
Consolidated Parties for such fiscal year required to be delivered to the
Administrative Agent under Section 7.1(a) of the Credit Agreement shall
include TRIA as a Consolidated Party with respect to the three month portion of
such fiscal year ended September 30, 2004, (ii) any comparative financial
information for prior fiscal periods required to be included with financial
statements of the Consolidated Parties delivered to the Administrative Agent
under Section 7.1(a) or (b) of the Credit Agreement shall include TRIA as
a Consolidated Party to the extent such comparative financial information
relates to any fiscal period of the Borrower which (A) ended on or prior to
September 30, 2004 or (B) includes the three months ended
September 30, 2004 and (iii) for purposes of calculating the financial
covenants set forth in Section 7.9 of the Credit Agreement for each fiscal
quarter of the Borrower ending on and after December 31, 2004, TRIA shall
not be included as a Consolidated Party.


 


PART 3

CONDITIONS TO EFFECTIVENESS


 


This Amendment shall be and become effective as of
the date hereof (the “Fourth Amendment Effective Date”) when all of the
conditions set forth in this Part 3 shall have


 


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been satisfied, and thereafter
this Amendment shall be known, and may be referred to, as the “Fourth
Amendment.”


 


SUBPART 3.1       Counterparts
of Amendment. The Administrative Agent shall have received counterparts (or
other evidence of execution, including telephonic message, satisfactory to the
Administrative Agent) of this Amendment, which collectively shall have been
duly executed on behalf of each of the Borrower, the Guarantors and the
Required Lenders.


 


SUBPART 3.2       Other
Fees and Out of Pocket Costs.  The
Borrower shall have paid any and all reasonable out-of-pocket costs (to the
extent invoiced) incurred by the Administrative Agent (including the reasonable
fees and expenses of the Administrative Agent’s legal counsel), and all other
fees and other amounts payable to the Administrative Agent, in each case in
connection with the arrangement, negotiation, preparation, execution and
delivery of this Amendment.


 


PART 4

MISCELLANEOUS


 


SUBPART 4.1       Representations
and Warranties.  The Credit Parties
hereby represent and warrant to the Administrative Agent and the Lenders that
(a) after giving effect to this Amendment, (i) no Default or Event of Default
exists under the Amended Credit Agreement or any of the other Credit Documents
and (ii) the representations and warranties set forth in Section 6
of the Existing Credit Agreement are, subject to the limitations set forth
therein, true and correct in all material respects as of the date hereof
(except for those which expressly relate to an earlier date) and (b) the
transactions contemplated in this Amendment are not prohibited by the
Subordinated Note Indenture (as in effect immediately prior to the Fourth
Amendment Effective Date).


 


SUBPART 4.2       Reaffirmation of Credit Party Obligations.  Each Credit Party hereby ratifies the Amended
Credit Agreement and acknowledges and reaffirms (i) that it is bound by all
terms of the Amended Credit Agreement and (ii) that it is responsible for the
observance and full performance of the Credit Party Obligations.  Without limiting the generality of the
proceeding sentence, (i) each of the Guarantors restates that it jointly
and severally guarantees the prompt payment when due of all Credit Party Obligations,
in accordance with, and pursuant to the terms of, Section 4 of the
Existing Credit Agreement and (ii) each of the Credit Parties agrees that
all references in the Collateral Documents to the term “Credit Party
Obligations” shall be deemed to include all of the obligations of the Credit
Parties to the Lenders and the Administrative Agent, whenever arising, under
the Amended Credit Agreement, the Collateral Documents or any of the other
Credit Documents (including, but not limited to, any interest accruing after
the occurrence of a Bankruptcy Event with respect to any Credit Party,
regardless of whether such interest is an allowed claim under the Bankruptcy
Code).


 


SUBPART 4.3       Cross-References.  References in this Amendment to any Part or
Subpart are, unless otherwise specified, to such Part or Subpart of this
Amendment.


 


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SUBPART 4.4       Instrument Pursuant to Existing Credit Agreement.  This Amendment is a Credit Document executed
pursuant to the Existing Credit Agreement and shall (unless otherwise expressly
indicated therein) be construed, administered and applied in accordance with
the terms and provisions of the Existing Credit Agreement.


 


SUBPART 4.5       References
in Other Credit Documents.  At such
time as this Amendment shall become effective pursuant to the terms of Part
3 all references in the Existing Credit Agreement and the other Credit
Documents to the “Credit Agreement” shall be deemed to refer to the Credit
Agreement as amended by this Amendment.


 


SUBPART 4.6       Counterparts.  This Amendment may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.


 


SUBPART 4.7       Governing
Law.  THIS AMENDMENT SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEW YORK.


 


SUBPART 4.8       Successors
and Assigns.  This Amendment shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.


 


SUBPART4.9        Costs,
Expenses.  The Borrower agrees to pay
on demand all reasonable costs and expenses of the Administrative Agent in
connection with the preparation, execution, delivery and administration of this
Amendment (including, without limitation, the fees and expenses of counsel to
the Administrative Agent) in accordance with the terms of Section 11.5
of the Existing Credit Agreement.


 


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