SIXTH SUPPLEMENTAL INDENTURE
This Sixth Supplemental Indenture, dated as of May 10, 2004 (this "Supplemental Indenture" or "Guarantee"), among Cape Fear Mobile Imaging, LLC, a North Carolina limited liability company (the "Guarantor"), MedQuest, Inc. (together with its successors and assigns, the "Company"), MQ Associates, Inc. ("Holdings"), the subsidiaries of the Company party to the Indenture (as hereinafter defined) (the "Subsidiary Guarantors") and Wachovia Bank, National Association, as Trustee under the Indenture referred to below.
WITNESSETH:
WHEREAS, the Company, Holdings, the Subsidiary Guarantors and the Trustee have heretofore executed and delivered an Indenture, dated as of August 15, 2002 (as amended, supplemented, waived or otherwise modified, the "Indenture"), providing for the issuance of an aggregate principal amount of $180,000,000 of 117/8% Senior Subordinated Notes due 2012 of the Company (the "Securities")
WHEREAS,Section 3.12of the Indenture provides that unless such Subsidiary has previously issued a Notes Guarantee which is then in full force and effect, the Company is required to cause each Subsidiary that issues a Guarantee in respect of obligations under a Credit Facility to execute and deliver to the Trustee a supplemental indenture pursuant to which such Restricted Subsidiary will unconditionally Guarantee, on a joint and several basis with the other Guarantors, the full and prompt payment of, premium, if any, and interest on the Securities; and
WHEREAS, pursuant toSection 9.1 of the Indenture, the Trustee and the Company are authorized to execute and deliver this Supplemental Indenture to amend the Indenture, without the consent of any Securityholder;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guarantor, the Company, Holdings, the other Subsidiary Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Securities as follows:
1.1 Defined Terms.
As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein defined, except that the term "Holders" in this Guarantee shall refer to the term "Securityholders" as defined in the Indenture and the Trustee acting on behalf or for the benefit of such Holders. The words "herein," "hereof" and "hereby" and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE II
AGREEMENT TO BE BOUND; GUARANTEE
2.1 Agreement to be Bound.
The Guarantor hereby becomes a party to the Indenture as a Subsidiary Guarantor and as such will have all of the rights and be subject to all of the obligations and agreements of a Subsidiary Guarantor under the Indenture. The Guarantor agrees to be bound by all of the provisions of the Indenture applicable to a Subsidiary Guarantor and to perform all of the obligations and agreements of a Subsidiary Guarantor under the Indenture.
2.2 Guarantee.
The Guarantor as of the Guarantor Effective Date (as hereinafter defined) hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly and severally with each other Subsidiary Guarantor, to each Holder of the Securities and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption, or otherwise, of the Obligations pursuant toArticle XI of the Indenture.
3.1 Notices.
All notices and other communications to the Guarantor shall be given as provided in the Indenture to the Guarantor, at its address set forth below, with a copy to the Company as provided in the Indenture for notices to the Company.
3.2 Parties.
Nothing expressed or mentioned herein is intended or shall be construed to give any Person, firm or corporation, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of this Supplemental Indenture or the Indenture or any provision herein or therein contained.
3.3 Governing Law.
This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
3.4 Severability Clause.
In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
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3.5 Ratification of Indenture; Supplemental Indentures Part of Indenture.
Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture.
3.6 Counterparts.
The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.
3.7 Headings.
The headings of the Articles and the sections in this Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
3.8 Additional Definitions.
As used in this Supplemental Indenture, "Guarantor Effective Date" shall mean April 30, 2004.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
CAPE FEAR MOBILE IMAGING, LLC, as a Guarantor | ||||
By: | /s/ JOHN K. LUKE Name: John K. Luke Title: Manager | |||
WACHOVIA BANK NATIONAL ASSOCIATION, as Trustee | ||||
By: | /s/ PAUL HENDERSON Name: Paul Henderson Title: Trust Officer | |||
MEDQUEST, INC. | ||||
By: | /s/ JOHN K. LUKE Name: John K. Luke Title: President | |||
MQ ASSOCIATES, INC. | ||||
By: | /s/ JOHN K. LUKE Name: John K. Luke Title: President | |||
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| IMAGING SERVICES OF ALABAMA, INC. ANDERSON DIAGNOSTIC IMAGING, INC. ASHEVILLE OPEN MRI, INC. BIOIMAGING AT CHARLOTTE, INC. BIOIMAGING AT HARDING, INC. BIOIMAGING OF COOL SPRINGS, INC. CABARRUS DIAGNOSTIC IMAGING, INC. CAPE FEAR DIAGNOSTIC IMAGING, INC. CAROLINA IMAGING, INC. OF FAYETTEVILLE CHAPEL HILL DIAGNOSTIC IMAGING, INC. CHATTANOOGA DIAGNOSTIC IMAGING, INC. DOTHAN DIAGNOSTIC IMAGING, INC. FLORIDA DIAGNOSTIC IMAGING CENTER, INC. OPEN MRI OF GEORGIA, INC. OPEN MRI & IMAGING OF GEORGIA, INC. GROVE DIAGNOSTIC IMAGING CENTER, INC. KANSAS DIAGNOSTIC IMAGING, INC. NORTHEAST COLUMBIA DIAGNOSTIC IMAGING, INC. WISCONSIN DIAGNOSTIC IMAGING, INC. VIENNA DIAGNOSTIC IMAGING, INC. WILLIAM S. WITT, INC. | MRI & IMAGING OF WISCONSIN, INC. LEXINGTON OPEN MRI, INC. MECKLENBURG DIAGNOSTIC IMAGING, INC. MEDQUEST ASSOCIATES, INC. MISSOURI IMAGING, INC. MOBILE OPEN MRI, INC. OCCUPATIONAL SOLUTIONS, INC. PALMETTO IMAGING, INC. PHOENIX DIAGNOSTIC IMAGING, INC. PIEDMONT IMAGING, INC. (FORSYTH) PIEDMONT IMAGING, INC. (SPARTANBURG) OPEN MRI & IMAGING OF RICHMOND, INC. SOUTH CAROLINA DIAGNOSTIC IMAGING, INC. SUN VIEW HOLDINGS, INC. TEXAS IMAGING SERVICES OF EL PASO, INC. TRIAD IMAGING, INC. TYSON'S CORNER DIAGNOSTIC IMAGING, INC. VIRGINIA DIAGNOSTIC IMAGING, INC. CAROLINAS DIAGNOSTIC IMAGING, INC. ILLINOIS DIAGNOSTIC IMAGING, INC. | |
| On behalf of each of the entities listed above: | On behalf of each of the entities listed above: |
By: | /s/ JOHN K. LUKE Name: John K. Luke Title: President | By: | /s/ JOHN K. LUKE Name: John K. Luke Title: President |
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| OPEN MRI & IMAGING OF ALBANY, LLC OPEN MRI & IMAGING OF ATHENS, LLC ATHENS MRI, LLC OPEN MRI OF ATLANTA, LLC BUCKHEAD DIAGNOSTIC IMAGING, LLC OPEN MRI OF CENTRAL GEORGIA, LLC IMAGING CENTER OF CENTRAL GEORGIA, LLC OPEN MRI & IMAGING OF CONYERS, LLC CUMMING DIAGNOSTIC IMAGING, LLC OPEN MRI & IMAGING OF DEKALB, LLC DULUTH DIAGNOSTIC IMAGING, LLC DULUTH CT CENTER, LLC DIAGNOSTIC IMAGING OF ATLANTA, LLC OPEN MRI & IMAGING OF NORTH FULTON, LLC OPEN MRI & IMAGING OF N.E. GEORGIA, LLC DIAGNOSTIC IMAGING OF GEORGIA, LLC MIDTOWN DIAGNOSTIC IMAGING, LLC OPEN MRI & IMAGING OF DOUGLASVILLE, LLC HAPEVILLE DIAGNOSTIC IMAGING, LLC OPEN MRI & IMAGING OF MACON, LLC OPEN MRI AND IMAGING OF SNELLVILLE, LLC WEST PACES DIAGNOSTIC IMAGING, LLC TOWN & COUNTRY OPEN MRI, LLC BRUNSWICK DIAGNOSTIC IMAGING, LLC | WOODSTOCK DIAGNOSTIC IMAGING, LLC DIAGNOSTIC IMAGING OF HIRAM, LLC DIAGNOSTIC IMAGING OF MARIETTA, LLC MONTGOMERY OPEN MRI, LLC BIRMINGHAM DIAGNOSTIC IMAGING, LLC COASTAL IMAGING, LLC DURHAM DIAGNOSTIC IMAGING, LLC JACKSONVILLE DIAGNOSTIC IMAGING, LLC CAPE IMAGING, L.L.C. BRIDGETON MRI AND IMAGING CENTER, LLC KIRKWOOD MRI AND IMAGING CENTER, LLC ST. PETERS MRI & IMAGING CENTER, LLC OPEN MRI & IMAGING OF RICHMOND, LLC RICHMOND WEST END DIAGNOSTIC IMAGING, LLC CAROLINA MEDICAL IMAGING, LLC OPEN MRI OF SIMPSONVILLE, LLC SIMPSONVILLE OPEN MRI, LLC EAST COOPER DIAGNOSTIC IMAGING, LLC FARMFIELD DIAGNOSTIC IMAGING, LLC FORT MILL DIAGNOSTIC IMAGING, LLC TRICOM DIAGNOSTIC IMAGING, LLC WEST ASHLEY DIAGNOSTIC IMAGING, LLC CLAYTON OPEN MRI, LLC MEDICAL SCHEDULING OF MISSOURI, LLC | |
On behalf of each of the entities listed above: | On behalf of each of the entities listed above: |
By: | /s/ JOHN K. LUKE Name: John K. Luke Title: Manager | By: | /s/ JOHN K. LUKE Name: John K. Luke Title: Manager | |||
OPEN MRI & IMAGING OF FLORENCE, LLC OPEN MRI OF MYRTLE BEACH, LLC Palmetto Imaging, Inc., as sole member of each of the entities listed above | ||||||
By: | /s/ JOHN K. LUKE Name: John K. Luke Title: President | |||||
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