Exhibit 4.9
EXECUTION VERSION
COLLATERAL AGENCY AGREEMENT
DATED AS OF SEPTEMBER 22, 2005
AMONG
INSIGHT HEALTH SERVICES CORP.,
INSIGHT HEALTH SERVICES HOLDINGS CORP.
AND
THE SUBSIDIARY GUARANTORS LISTED
ON THE SIGNATURE PAGES HEREOF
U.S. BANK NATIONAL ASSOCIATION
AS INDENTURE TRUSTEE
AND
U.S. BANK NATIONAL ASSOCIATION,
AS COLLATERAL AGENT
TABLE OF CONTENTS*
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.................................................. 1
Section 1.02. Rules of Interpretation...................................... 4
ARTICLE II
OBLIGATIONS AND POWERS OF THE COLLATERAL AGENT
Section 2.01. Appointment of the Collateral Agent.......................... 4
Section 2.02. Actions under Collateral Documents........................... 4
Section 2.03. Instructions of Directing Noteholders........................ 5
Section 2.04. Certain Actions under the Collateral Documents............... 5
Section 2.05. Other Actions by the Collateral Agent........................ 6
Section 2.06. Nature of Duties............................................. 6
Section 2.07. No Obligations Imposed....................................... 6
Section 2.08. Inspection................................................... 7
ARTICLE III
ACTIONS BY NOTEHOLDERS; VOTING
Section 3.01. Directing Noteholders Defined................................ 7
Section 3.02. Exceptional Decisions........................................ 7
Section 3.03. Certificates of the Trustee.................................. 8
Section 3.04. Calculations Binding......................................... 8
ARTICLE IV
EXERCISE OF REMEDIES; APPLICATION OF COLLATERAL PROCEEDS
Section 4.01. General Limitation on Exercise of Remedies................... 8
Section 4.02. Notices of Events of Default................................. 8
Section 4.03. Notices of Acceleration...................................... 8
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* The Table of Contents is not a part of the Collateral Agency Agreement.
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Section 4.04. Remedies..................................................... 8
Section 4.05. No Inconsistent Actions...................................... 8
Section 4.06. Application of Proceeds...................................... 8
Section 4.07. Credit Bid Rights............................................ 9
ARTICLE V
CERTAIN OBLIGATIONS ENFORCEABLE BY THE LOAN PARTIES
Section 5.01. Release of Liens............................................. 10
Section 5.02. Delivery of Copies to the Trustee............................ 10
Section 5.03. Collateral Agent Not required to Make Filings or
Recordations.............................................. 10
Section 5.04. No Actions to Address Exceptions............................. 11
ARTICLE VI
THE COLLATERAL AGENT
Section 6.01. No Implied Duty.............................................. 11
Section 6.02. Appointment of Co-Agents and Sub-Agents...................... 11
Section 6.03. Other Agreements............................................. 11
Section 6.04. Solicitation of Instructions................................. 11
Section 6.05. Limitation of Liability...................................... 11
Section 6.06. Documents in Satisfactory Form............................... 12
Section 6.07. Entitled to Rely............................................. 12
Section 6.08. Events of Default............................................ 12
Section 6.09. Actions by Collateral Agent.................................. 12
Section 6.10. Security or Indemnity in Favor of the Collateral Agent....... 12
Section 6.11. Resignation or Removal of the Collateral Agent............... 13
Section 6.12. Appointment of Successor Collateral Agent.................... 13
Section 6.13. Succession................................................... 13
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ARTICLE VII
MISCELLANEOUS
Section 7.01. Amendment.................................................... 13
Section 7.02. Further Assurances........................................... 14
Section 7.03. Successors and Assigns....................................... 14
Section 7.04. Delay and Waiver............................................. 15
Section 7.05. Notices...................................................... 15
Section 7.06. Entire Agreement............................................. 16
Section 7.07. Compensation and Expenses.................................... 16
Section 7.08. Indemnity.................................................... 17
Section 7.09. Obligations Secured.......................................... 18
Section 7.10. Severability................................................. 18
Section 7.11. Governing Law; Submission to Jurisdiction.................... 18
Section 7.12. Waiver of Right to Trial by Jury............................. 19
Section 7.13. Section Titles............................................... 19
Section 7.14. Counterparts; Effectiveness.................................. 19
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SCHEDULES:
Schedule 2.02 - Issue Date Collateral Documents
EXHIBITS:
Exhibit A - Form of Security Agreement
Exhibit B - Form of Pledge Agreement
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This Collateral Agency Agreement (this "AGREEMENT") is entered into as
of September 22, 2005 among INSIGHT HEALTH SERVICES HOLDINGS CORP., a Delaware
corporation ("HOLDINGS"), INSIGHT HEALTH SERVICES CORP. ("INSIGHT"), the other
Guarantors party hereto, U.S. BANK NATIONAL ASSOCIATION, as Trustee for the
Noteholders under the Indenture (as defined below) (together with its successor
or successors in such capacity, the "TRUSTEE"), and U.S. BANK NATIONAL
ASSOCIATION, as Collateral Agent (together with its successor or successors in
such capacity, the "COLLATERAL AGENT").
InSight intends to issue Senior Secured Floating Rate Notes due 2011
(together with any Additional Notes (as defined in the Indenture) and any
Exchange Notes (as defined in the Indenture), and as amended, restated,
supplemented or modified from time to time, the "SENIOR SECURED NOTES") pursuant
to an Indenture dated as of the date hereof (as amended, restated, supplemented
or modified from time to time and including any agreement extending the maturity
of, refinancing or otherwise restructuring all or any portion of the obligations
of InSight under such Indenture or any successor agreement, the "INDENTURE")
among InSight and U.S. Bank National Association, as Trustee (together with its
successor or successors in such capacity, the "TRUSTEE"). The obligations of
InSight under and in respect of the Senior Secured Notes will be guaranteed by
Holdings, each of the parties listed on the signature pages hereto as
"Subsidiary Guarantors" and all other direct and indirect wholly-owned domestic
subsidiaries of Holdings (collectively, the "SUBSIDIARY GUARANTORS") and
together with Holdings, "GUARANTORS"). Holdings, InSight, and the Subsidiary
Guarantors are herein referred to individually as a "LOAN PARTY" and,
collectively, as the "LOAN PARTIES."
The Indenture requires the Loan Parties to secure their obligations
under the Senior Secured Notes through the grant of a first lien security
interest in the Collateral (subject to Permitted Liens). The Indenture further
requires that such security interests in the Collateral be granted pursuant to
security documents to a collateral agent acting for the benefit of the holders
from time to time of the Senior Secured Notes.
The Loan Parties and the Collateral Agent will enter into a Security
Agreement, a Pledge Agreement and certain other Collateral Documents referred to
therein securing the Senior Secured Notes and all related obligations. This
Agreement sets forth the terms on which the Collateral Agent has undertaken to
accept, hold and enforce such security interests and all related rights,
interests and powers as agent for, and for the benefit exclusively of, the
present and future holders of the Senior Secured Notes.
Accordingly, in consideration of the mutual agreements set forth
herein, the Trustee and the Collateral Agent hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Capitalized terms defined in the
introductory paragraphs hereof have the respective meanings provided for
therein. Unless otherwise defined herein, capitalized terms shall have the
meaning set forth in the Indenture. In addition, as used in this Agreement, the
following terms have the following meanings:
"ACCOUNT CONTROL AGREEMENT" has the meaning set forth in the Security
Agreement.
"AFFILIATE" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"AGREEMENT" means this Collateral Agency Agreement, as amended,
modified or supplemented from time to time.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day
which banking institutions in New York, New York or San Francisco,
California or at a place of payment are authorized by law, regulation or
executive order to remain closed.
"COLLATERAL" means all of the property which is subject or is
purported to be subject to the Liens granted by the Collateral Documents.
"COLLATERAL AGENT" means U.S. Bank National Association, as collateral
agent, and its successor or successors in such capacity.
"COLLATERAL DOCUMENTS" means, collectively, this Agreement, the
Security Agreement, the Pledge Agreement, the Account Control Agreements,
each Perfection Certificate (as defined in the Security Agreement) and all
other pledges, agreements, financing statements, filings or other documents
that grant or evidence the Lien in the Collateral in favor of the
Collateral Agent for the benefit of the Finance Parties, as they may be
amended from time to time.
"CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of such
Person, whether through the ability to exercise voting power, by contract
or otherwise. "CONTROLLING" and "CONTROLLED" have meanings correlative
thereto.
"DEBTOR RELIEF LAWS" means Title 11, United States Bankruptcy Code of
1978, as amended, or any similar United States federal or state law or
foreign law relating to bankruptcy, insolvency, receivership, winding up,
liquidation, reorganization or relief of debtors or any amendment to,
succession to or change in any such law.
"DIRECTING NOTEHOLDERS" means at any time Noteholders holding more
than 50% of the then aggregate outstanding principal amount of the Senior
Secured Notes (including, without limitation, Noteholders providing
consents obtained in connection with a tender offer or exchange offer for,
or purchase of, Senior Secured Notes).
"EVENT OF DEFAULT" means an "EVENT OF DEFAULT" as defined in the
Indenture.
"EXCEPTIONAL DECISIONS" has the meaning set forth in Section 3.02.
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"FINANCE PARTY" means any of the Collateral Agent, the Trustee, any
Noteholder, and any Indemnitee (as defined in the Security Agreement) and
"FINANCE PARTIES" means two or more of them collectively.
"INSOLVENCY PROCEEDING" means (i) any voluntary or involuntary case or
proceeding under any Debtor Relief Law with respect to any Loan Party, (ii)
any other voluntary or involuntary insolvency, reorganization or bankruptcy
case or proceeding, or any receivership, liquidation, reorganization or
other similar case or proceeding, with respect to any Loan Party or with
respect to any of their respective assets, (iii) any liquidation,
dissolution, reorganization or winding up of any Loan Party, whether
voluntary or involuntary and whether or not involving insolvency or
bankruptcy and (iv) any assignment for the benefit of Noteholders or any
other marshaling of assets and liabilities of any Loan Party.
"NOTE DOCUMENTS" means the Indenture, the Senior Secured Notes and the
Registration Rights Agreement related thereto and the Collateral Documents,
in each case including all exhibits and schedules thereto, and all other
agreements, documents and instruments relating to the Senior Secured Notes,
in each case as the same may be amended, modified or supplemented from time
to time in accordance with the provisions thereof.
"NOTEHOLDERS" means the holders from time to time of the Senior
Secured Notes.
"OFFICER'S CERTIFICATE" has the meaning set forth in Section 5.01.
"PLEDGE AGREEMENT" means the Pledge Agreement, substantially in the
form of Exhibit B hereto, dated as of the date hereof among the Loan
Parties and the Collateral Agent, as the same may be amended, modified or
supplemented from time to time.
"PROCEEDS" has the meaning specified for such term in the Uniform
Commercial Code as in effect from time to time in the State of New York.
"RESPONSIBLE OFFICER" means the chief executive officer, president,
chief financial officer, treasurer or assistant treasurer or secretary or
assistant secretary of a Loan Party. Any document delivered hereunder that
is signed by a Responsible Officer of a Loan Party shall be conclusively
presumed to have been authorized by all necessary corporate, partnership
and/or other action on the part of such Loan Party and such Responsible
Officer shall be conclusively presumed to have acted on behalf of such Loan
Party.
"SECURITY AGREEMENT" means the Security Agreement, substantially in
the form of Exhibit A hereto, dated as of the date hereof among the Loan
Parties and the Collateral Agent, as the same may be amended, modified or
supplemented from time to time.
"SUBSIDIARY" has the meaning set forth in the Indenture.
"TRUST INDENTURE ACT" means Trust Indenture Act of 1939, as amended,
and rules and regulations promulgated thereunder and interpretations
thereof.
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"UNIFORM COMMERCIAL CODE" or "UCC" has the meaning specified in the
Security Agreement.
Section 1.02. Rules of Interpretation. Terms defined in the
introductory paragraphs hereof and the definitions in Section 1.01 shall apply
equally to both the singular and plural forms of the terms defined. Wherever the
context may require, any pronouns shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". All references
herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless otherwise stated herein or the context shall otherwise require. Unless
otherwise expressly provided herein, the word "day" means a calendar day.
ARTICLE II
OBLIGATIONS AND POWERS OF THE COLLATERAL AGENT
Section 2.01. Appointment of the Collateral Agent. The Collateral
Agent is hereby appointed by the Trustee as collateral agent hereunder, and the
Collateral Agent hereby agrees to act as Collateral Agent pursuant to the terms
of this Agreement. The Trustee on behalf of itself and on behalf of the
Noteholders directs the Collateral Agent to enter into the Collateral Documents
listed on Schedule 2.02.
Section 2.02. Actions under Collateral Documents. The Collateral Agent
hereby irrevocably undertakes and agrees, on the terms and conditions set forth
in this Agreement, to act as agent for the benefit exclusively of the present
and future Noteholders and any other holders from time to time of the Note
Obligations and in such capacity to accept, hold, administer and enforce all
collateral security at any time delivered to it by any Loan Party as security
for the Note Obligations and all rights, interests and powers at any time
granted or enforceable in respect of such collateral security under the
Collateral Documents listed on Schedule 2.02 and, subject to Section 7.01(b),
all other Collateral Documents, or applicable law. Without limiting the
generality of the foregoing, the Collateral Agent agrees that it will, as agent
for the benefit exclusively of the present and future Noteholders and the other
holders from time to time of the Note Obligations, but subject to the terms and
conditions hereof:
(i) enter into the Collateral Documents, receive, hold, administer and
enforce the security interests granted to it thereunder, perform its
obligations thereunder and protect, exercise and enforce the interests,
rights, powers and remedies granted or available to it thereunder or
pursuant thereto or in connection therewith;
(ii) take all lawful and commercially reasonable actions that it may
deem necessary or advisable to protect or preserve its interest in the
Collateral;
(iii) maintain control over the Collateral Accounts, if any,
established by any of the Loan Parties, pursuant to the Account Control
Agreements related thereto;
(iv) deliver and receive notices pursuant to the Collateral Documents;
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(v) sell, assign, collect, assemble, foreclose on, institute legal
proceedings with respect to, or otherwise exercise or enforce the rights
and remedies of a secured party (including an insurance beneficiary or a
loss payee) with respect to the Collateral and its other interests, rights,
powers and remedies;
(vi) remit to the Trustee, as required by Section 4.07 all cash
proceeds received by the Collateral Agent from the collection, foreclosure
or enforcement of its interest in the Collateral or any of its other
interests, rights, powers or remedies;
(vii) subject to Section 3.02 and Section 7.01(b), amend the
Collateral Documents as from time to time authorized and directed by the
Directing Noteholders, and amend the Collateral Documents as required by
Section 3.02(d); and
(viii) release any Lien granted to it by any Collateral Document upon
any Collateral if and as required by Section 2.04 and Section 5.01.
The Collateral Agent is irrevocably authorized and empowered to enter
into and perform its obligations under, and to protect, perfect, exercise and
enforce its interest, rights, powers and remedies, in each case under and
pursuant to the Collateral Documents and applicable law and to act as set forth
in this Article II or as requested in any lawful directions given to it from
time to time in respect of any matter by the Directing Noteholders.
The Loan Parties acknowledge and consent to the undertakings of the
Collateral Agent set forth in this Article II, and agree to each of the other
provisions of this Agreement applicable to them.
Section 2.03. Instructions of Directing Noteholders. Subject to the
terms and conditions of this Agreement, the Collateral Agent shall follow the
instructions of the Directing Noteholders from time to time conveyed to it by
the Trustee, subject to and consistent with the Collateral Agent's rights and
obligations expressed in the Collateral Documents and in accordance with
applicable law. No direction given to the Collateral Agent (whether given by the
Directing Noteholders through the Trustee, by the Trustee, or otherwise by any
Person) which imposes, or purports to impose, upon the Collateral Agent any
obligation not set forth in this Agreement or any other Collateral Document
shall be binding upon the Collateral Agent unless the Collateral Agent elects,
at its sole option, to accept direction (i) pursuant to the instructions of the
Directing Noteholders or (ii) from the Trustee. No instruction of the Directing
Noteholders shall be effective to impose any obligation or liability upon the
Trustee, unless it is a signatory party thereto.
Section 2.04. Certain Actions under the Collateral Documents. Without
limiting the provisions of Section 2.02, the Collateral Agent is hereby
authorized and directed, and agrees for the benefit of the Loan Parties, without
notice to or consent from any Noteholder: (i) to release (upon receipt of a
written certification of a responsible officer of InSight that the Trustee has
received all documents, if any, required by the Trust Indenture Act and the
Indenture) one or more Loan Parties from their obligations under, and the Liens
of, the Collateral Documents, and to release the Collateral or any portion
thereof, as required by Section 7.11 of the Security Agreement, Section 8.11 of
the Pledge Agreement or any other pertinent provision of any Note
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Document; (ii) to receive or execute perfection certificates, control agreements
and other Loan Party deliverables as contemplated by the Collateral Documents;
(iii) to release funds deposited in the Collateral Accounts established and
maintained under the Security Agreement as required by Section 2.06 of the
Security Agreement; (iv) to make available to each Loan Party any Instrument or
Certificated Security pledged by such Loan Party for the purposes set forth in,
and as required by, Section 4.01 of the Pledge Agreement; and (v) to deliver
such instruments as may be required from time to time to enable each Loan Party
to exercise the voting and other rights which it is entitled to exercise under
Section 5.01(a)(i) of the Pledge Agreement.
Section 2.05. Other Actions by the Collateral Agent. The Collateral
Agent shall provide the Trustee with a copy of all notices received from the
Loan Parties under the Collateral Documents. The Collateral Agent shall timely
file Uniform Commercial Code continuation statements to continue the perfection
of the security interests under the Collateral Documents. During any period when
the Collateral Agent is exercising remedies against any Loan Party or the
Collateral, the Collateral Agent shall furnish the Trustee with reports of its
activities in connection therewith upon the occurrence of significant events and
upon the request of the Trustee.
Section 2.06. Nature of Duties. Except to the extent otherwise
provided in Section 2.05, the duties of the Collateral Agent hereunder and under
the Collateral Documents shall be ministerial and administrative in nature. The
Collateral Agent shall not have by reason of this Agreement or the Collateral
Documents a fiduciary or trust relationship with respect to the Trustee, any
Noteholder or any other holder from time to time of Note Obligations, and
nothing in this Agreement, expressed or implied, is intended to or shall be so
construed as to imply such obligations or impose, upon the Collateral Agent, any
obligations whatsoever arising under this Agreement, the Indenture or any
Collateral Document, except as expressly set forth herein or in the Collateral
Documents. For the limited purpose of holding and distributing or applying
Proceeds of Collateral and Cash Equivalents, the Collateral Agent shall hold
such Proceeds and Cash Equivalents in trust for the benefit of the Trustee in
accordance with its rights provided for herein.
Section 2.07. No Obligations Imposed. None of the Trustee, any
Noteholder or any other holder of Note Obligations shall have: (i) except in
connection with the instructions of the Directing Noteholders to which it is a
signatory party, any responsibility or duty whatsoever in respect of the
Collateral or the Collateral Documents or any other interest, right, power or
remedy granted to or enforceable by the Collateral Agent, it being understood
and agreed by the Collateral Agent and by each Loan Party that, except in
connection with the instructions of the Directing Noteholders to which it is a
signatory party, only the Collateral Agent shall be bound by, or liable for
breach of, the obligations of the Collateral Agent set forth in or arising under
the Collateral Documents, including all obligations imposed by law upon a
secured party relating the protection, maintenance, release or enforcement of
any security interest in any Collateral or any other interest, right, power or
remedy of the Collateral Agent; or (ii) except in connection with the
instructions of the Directing Noteholders to which it is a signatory party, any
liability whatsoever for any act or omission of the Collateral Agent, whether or
not constituting a breach of its undertaking and obligations under this
Agreement or otherwise constituting wrongful conduct.
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Section 2.08. Inspection. The Collateral Agent will permit the Trustee
or any Noteholder at any time or from time to time, during normal business
hours, to inspect and copy any and all Collateral Documents and other documents,
notices, certificates, instructions or communications received by the Collateral
Agent in its capacity as such.
ARTICLE III
ACTIONS BY NOTEHOLDERS; VOTING
Section 3.01. Directing Noteholders Defined. Except with respect to
Exceptional Decisions as defined in Section 3.02, all instructions to the
Collateral Agent (including, without limitation, delivery of a notice of
foreclosure, foreclosure and appointment of a receiver) shall be given by the
Directing Noteholders to the Collateral Agent through the Trustee.
Section 3.02. Exceptional Decisions. Certain circumstances set forth
in Section 3.02(b) and (c) shall call for "EXCEPTIONAL DECISIONS", as such term
is used herein, and instruction to the Collateral Agent in connection with such
circumstances shall be effected as provided below:
(a) Amendment of Collateral Documents. The Collateral Agent shall not
agree to any amendment of the Collateral Documents except upon instructions
given by the Directing Noteholders in accordance with Section 3.01;
provided that no agreement of any Noteholder shall be required for (A) any
amendment, modification or supplement to the Collateral Documents (1) to
cure any ambiguity, typographical error, defect or inconsistency if such
amendment, modification or supplement does not adversely affect the rights
of the Noteholders or (2) pursuant to Section 9.01 of the Indenture or (B)
such amendments to financing statements or other Collateral Documents as
stated in the opinion provided in Section 2.02(iii); and provided, further,
that any amendment to the provisions of the Collateral Documents that
releases any Collateral shall be governed by Section 3.02(c).
(b) Amendment of this Agreement. The Collateral Agent shall not agree
to any amendment of this Agreement except upon instructions given by the
Directing Noteholders in accordance with Section 3.01; provided that no
agreement of any Noteholder shall be required for any amendment,
modification or supplement to this Agreement (x) to cure any ambiguity,
typographical error, defect or inconsistency if such amendment,
modification or supplement does not adversely affect the rights of the
Noteholders or (y) pursuant to Section 9.01 of the Indenture; and provided,
further, that any amendment to the definition of "DIRECTING NOTEHOLDERS"
and any amendment to Sections 3.01, 3.02, 4.06, 4.07 and 7.01 will require
notice to the Collateral Agent by the Trustee of the concurrence of all of
the Noteholders.
(c) Release of All or Substantially All Collateral. The Collateral
Agent shall not release all or substantially all Collateral from the lien
and security interests created by the Collateral Documents except as
expressly provided therein (including, without limitation, Section 7.11 of
the Security Agreement and Section 8.11 of the Pledge Agreement) or in
Article V hereof or except upon notice to the Collateral Agent by the
Trustee of the concurrence of all of the Noteholders.
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(d) Amendments to Other Collateral Documents. Subject to Section
7.01(b), The Collateral Agent agrees for the benefit of the Loan Parties
that it shall execute any amendment, modification or supplement to any
Collateral Document approved in accordance with Article IX of the
Indenture.
Section 3.03. Certificates of the Trustee. Concurrently with any
calculation of Directing Noteholders, the Trustee shall certify to the
Collateral Agent the votes cast by the Noteholders.
Section 3.04. Calculations Binding. All calculations regarding
satisfaction of compliance with the definition of the Directing Noteholders
shall be made by the Collateral Agent upon receipt of and in exclusive reliance
upon the certificates described in Section 3.03, and shall be binding upon the
Noteholders.
ARTICLE IV
EXERCISE OF REMEDIES; APPLICATION OF COLLATERAL PROCEEDS
Section 4.01. General Limitation on Exercise of Remedies. The Trustee
shall not be entitled to exercise any remedies directly under the Collateral
Documents, but only by providing instructions to the Collateral Agent in
accordance with this Agreement.
Section 4.02. Notices of Events of Default. The Trustee shall notify
the Collateral Agent if an Event of Default has occurred under (and as defined
in) the Indenture of which it has actual knowledge and of the forbearance,
waiver or other termination, if any, of such Event of Default.
Section 4.03. Notices of Acceleration. If any Note Obligations are
accelerated, the Trustee shall notify the Collateral Agent of such acceleration,
certifying: (i) that such acceleration has occurred and (ii) the principal,
interest, fees and other amounts owed by the Loan Parties (such certification
being herein referred to as a "NOTICE OF ACCELERATION").
Section 4.04. Remedies. Upon receipt by the Collateral Agent of a
Notice of Acceleration from the Trustee or upon receipt by the Collateral Agent
of notice of the commencement by or against one or more Loan Parties of an
Insolvency Proceeding and subject to the provisions of this Agreement, including
Section 6.10, the Collateral Agent shall retain legal counsel acceptable to the
Trustee and shall exercise such remedies under the Collateral Documents as it
shall be instructed by the Directing Noteholders.
Section 4.05. No Inconsistent Actions. The Trustee agrees to take no
action in an Insolvency Proceeding with respect to any Loan Party or the
Collateral which is inconsistent with the terms of this Agreement.
Section 4.06. Application of Proceeds. In the event of the realization
of Proceeds of any collection or disposition of Collateral pursuant to the
exercise of remedies under the Collateral Documents, the Collateral Agent shall
distribute such Proceeds to the specified Persons in the following order of
priority:
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FIRST, to the payment of advances made and liabilities incurred by the
Collateral Agent in order to protect the Liens granted by the Collateral
Documents or the Collateral, with interest thereon at the rate that would
then be applicable to the Senior Secured Notes, and the payment of all
reasonable costs and expenses incurred by the Collateral Agent or Trustee
in connection with the preservation, collection, foreclosure or enforcement
of the Liens granted by the Collateral Documents or any interest, right,
power or remedy of the Collateral Agent or in connection with the
collection or enforcement of any of the Loan Obligations in any Insolvency
Proceeding, including all reasonable fees and disbursements of attorneys,
accountants, consultants, appraisers and other professionals engaged by the
Collateral Agent or the Trustee and reasonable compensation of the
Collateral Agent or the Trustee for services rendered in connection
therewith;
SECOND, to the payment of accrued and unpaid interest on the Senior
Secured Notes;
THIRD, to the payment of any due and unpaid premium, if any, in
respect of the prepayment or payment of the Senior Secured Notes;
FOURTH, to the payment of the due and unpaid principal of the Senior
Secured Notes;
FIFTH, to any remaining unpaid amounts of the Note Obligations; and
SIXTH, to other Persons as their interests may appear or as instructed
by a court of competent jurisdiction.
No party hereto shall be entitled to a distribution on any lower
priority pursuant to clauses FIRST through SIXTH above unless and until all
higher priorities have been paid in full.
Section 4.07. Credit Bid Rights.
(a) If, during the continuance of an Event of Default, the Collateral
Agent forecloses any of its Liens upon any Collateral, whether by public sale or
private sale or judicial foreclosure or otherwise, and if directed by the
Directing Noteholders to exercise its credit bid rights as provided in this
Section 4.07, the Collateral Agent, acting for and on behalf of the holders of
Note Obligations, shall be entitled (to the fullest extent it may lawfully do
so) to use and apply then due and payable Note Obligations as a credit on
account of the purchase price payable by the Collateral Agent for any Collateral
sold to the Collateral Agent at the corresponding foreclosure sale for all
purposes related to bidding and making settlement or payment of the purchase
price at such foreclosure sale.
(b) If, in connection with or, during the continuance of an Event of
Default, in anticipation of any foreclosure of any of the Collateral Agent's
Liens upon any Collateral, Senior Secured Notes representing at least a majority
in outstanding principal amount of Senior Secured Notes then outstanding are
transferred to and registered in the name of a single transferee for purposes of
facilitating or executing a bid for such Collateral at the corresponding
foreclosure sale, such transferee shall be entitled (to the fullest extent it
may lawfully do so) to use and apply
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all then due and payable Note Obligations outstanding to such transferee as a
credit on account of the purchase price payable by such transferee for any
Collateral sold to such transferee at such foreclosure sale, for all purposes
related to bidding and making settlement or payment of the purchase price at
such foreclosure sale, but only if all Noteholders consent thereto or if each
Noteholder has been offered the opportunity to transfer to such transferee any
or all of the Senior Secured Notes outstanding held by such Noteholder on terms
equivalent to the most favorable terms offered by such transferee to any
Noteholder for or in connection with any transfer of Senior Secured Notes to
such transferee.
(c) Each of the Loan Parties hereby grants, confirms and agrees to
cooperate with and permit the exercise and enforcement of the rights set forth
in this Section 4.07.
ARTICLE V
CERTAIN OBLIGATIONS ENFORCEABLE BY THE LOAN PARTIES
Section 5.01. Release of Liens.
(a) The Collateral Agent agrees for the benefit of the Loan Parties
that if the Collateral Agent at any time receives a written certification signed
by a Responsible Officer (an "OFFICER'S CERTIFICATE") stating that the
Collateral Agent is permitted or required (x) by the Indenture, (y) by Section
7.11 of the Security Agreement or Section 8.11 of the Pledge Agreement or (z)
pursuant to the instructions of the Directing Noteholders, to release any
property of any Loan Party described in such Officer's Certificate from any Lien
granted by a Collateral Document specified in such Officer's Certificate,
accompanied by the proposed document or instrument releasing such Lien as to
such property, then, subject to Article VI, the Collateral Agent will (upon
receipt of a written certification of a Responsible Officer of InSight that the
Trustee has received all documents, if any, required by the Trust Indenture Act
and the Indenture) within three Business Days thereafter, release such Lien upon
such property by executing (and if necessary acknowledging in recordable form)
such proposed document or instrument reasonably requested by the Loan Parties
and delivering it to the applicable Loan Party requesting the same. Any such
document shall be without recourse to or warranty by the Collateral Agent or the
other Finance Parties.
(b) Any Collateral that is released automatically pursuant to Section
7.11 of the Security Agreement, Section 8.11 of the Pledge Agreement or any
other Collateral Document shall be deemed to be automatically released under
this Agreement without any action on the part of the Collateral Agent.
Section 5.02. Delivery of Copies to the Trustee. The applicable Loan
Party shall deliver to the Trustee requesting the same a copy of each Officer's
Certificate delivered to the Collateral Agent pursuant to Section 5.01, together
with copies of all documents delivered to the Collateral Agent with such
Officer's Certificate. The Trustee shall not be obligated to take notice thereof
or to act thereon.
Section 5.03. Collateral Agent Not required to Make Filings or
Recordations. The Collateral Agent is not required to file, register or record
any instrument releasing or subordinating its security interest in any
Collateral.
10
Section 5.04. No Actions to Address Exceptions. Each Noteholder
acknowledges that actions will not be taken to address the exceptions noted in
Section 3.04 of the Security Agreement and that the Collateral Agent may not
have a perfected security interest with respect to the matters specified
therein.
ARTICLE VI
THE COLLATERAL AGENT
Section 6.01. No Implied Duty. The Collateral Agent shall not have any
duties or responsibilities except those expressly assumed by it in this
Agreement and the other Collateral Documents and shall not be required to take
any action which is contrary to applicable law or any provision of this
Agreement or the other Collateral Documents. Where the Collateral Agent is
permitted but not required to take any action pursuant to any Collateral
Document, the Collateral Agent may take any such action but shall have no
obligation to take any such action without the direction of the Directing
Noteholders and the Collateral Agent shall not be liable to any party for not
taking such action if the Directing Noteholders have not directed the Collateral
Agent to take such action. The Collateral Agent makes no representation as to
the existence, validity, value, genuineness, perfection, priority or the
collectibility of any security or other document or other instrument held by or
delivered to the Collateral Agent. The Collateral Agent shall not be called upon
to advise any party as to the wisdom in taking or refraining to take any action
with respect to the Collateral.
Section 6.02. Appointment of Co-Agents and Sub-Agents. The Collateral
Agent may employ agents and appoint sub-agents or co-collateral agents as it
determines appropriate in the performance of its duties hereunder. The
Collateral Agent will exercise reasonable care in selecting any such agent,
sub-agent or co-collateral agent but shall not otherwise be responsible or
liable for any act or omission of any such agent, sub-agent or co-collateral
agent.
Section 6.03. Other Agreements. The Collateral Agent has accepted and
is bound by the Collateral Documents delivered to it as of the date of this
Agreement and listed on Schedule 2.02 and, subject to Section 7.01(b) and this
Article VI, shall accept and be bound by all Collateral Documents delivered to
it at any time after the date of this Agreement. The Collateral Agent shall not
otherwise be bound by, or obligated to take cognizance of the provisions of, any
agreement to which it is not a party, including the Indenture. The Collateral
Agent shall not be responsible for compliance with the terms of any Note
Document by any Loan Party and shall have no duty to monitor any such
compliance.
Section 6.04. Solicitation of Instructions. The Collateral Agent may
at any time solicit confirmatory instructions, including from the Directing
Noteholders or an order of a court of competent jurisdiction, as to any action
which it may be requested or required to take, or which it may propose to take,
in the performance of any of its obligations under this Agreement.
Section 6.05. Limitation of Liability. The Collateral Agent shall not
be responsible or liable for any action taken or omitted to be taken by it
hereunder or under any Collateral Document, except for its own gross negligence
or willful misconduct.
11
Section 6.06. Documents in Satisfactory Form. The Collateral Agent
shall be entitled to require that all agreements, certificates, opinions,
instruments and other documents at any time submitted to it, including those
expressly provided for in this Agreement, be delivered to it in a form and upon
substantive provisions reasonably satisfactory to it.
Section 6.07. Entitled to Rely. The Collateral Agent may rely
conclusively upon any certificate, notice or other document (including any
electronic transmission) reasonably believed by it to be genuine and correct and
to have been signed or sent by or on behalf of the proper Person or Persons and
need not investigate any fact or matter stated in any such document. The
Collateral Agent may seek and rely upon any judicial order or judgment, upon any
advice, opinion or statement of legal counsel, independent consultants and other
experts selected by it in good faith and upon any certification, instruction,
notice or other writing delivered to it by any Loan Party in compliance with the
provisions of this Agreement or delivered to it by the Trustee as to the
Noteholders whose action or consent is required for an instruction of Directing
Noteholders, without being required to determine the authenticity thereof or the
correctness of any fact stated therein or the propriety or validity of service
thereof. The Collateral Agent may act in reliance upon any instrument comporting
with the provisions of this Agreement or any signature reasonably believed by it
to be genuine and may assume that any Person purporting to give notice or
receipt or advice or make any statement or execute any document in connection
with the provisions hereof has been duly authorized to do so. To the extent an
officers' certificate or an opinion of counsel is required or permitted under
this Agreement to be delivered to the Collateral Agent in respect of any matter,
the Collateral Agent may rely conclusively on such officers' certificate or
opinion of counsel as to such matter. The Collateral Agent may request an
opinion of counsel, a certificate of a Responsible Officer, or both, at any time
when it is required or requested to take any action (other than pursuant to
Sections 2.04, 3,02, 5.01, and 6.03 hereof or any similar provision of any
Collateral Document) hereunder or under any Collateral Document stating that
such action is permitted or authorized pursuant to the terms hereof and of the
Note Documents and that all conditions precedent to the taking of such action
have been complied with and the Collateral Agent may rely conclusively on such
officer's certificate or opinion of counsel with respect thereto.
Section 6.08. Events of Default. The Collateral Agent shall not be
required to inquire as to the occurrence or absence of any Event of Default
under the Indenture or any other Note Document and shall not be affected by or
required to act upon any notice or knowledge as to the occurrence of any Event
of Default unless and until it receives a notice pursuant to Section 4.02.
Section 6.09. Actions by Collateral Agent. As to any matter not
expressly provided for by this Agreement, the Collateral Agent shall act or
refrain from acting as directed by the Directing Noteholders and shall be fully
protected in doing so.
Section 6.10. Security or Indemnity in Favor of the Collateral Agent.
The Collateral Agent shall not be required to advance or expend any funds or
otherwise incur any financial liability in the performance of its duties or the
exercise of its powers or rights hereunder unless it has been provided with
security or indemnity which it, in its discretion, deems sufficient against any
and all liability or expense which may be incurred by it by reason of taking or
continuing to take such action. The Loan Parties hereby jointly and severally
agree to provide
12
such security or indemnity to the Collateral Agent promptly upon request by the
Collateral Agent therefor.
Section 6.11. Resignation or Removal of the Collateral Agent. Subject
to the appointment of a successor Collateral Agent as provided in Section 6.12
and the acceptance of such appointment by the successor Collateral Agent, (i)
the Collateral Agent may resign at any time by giving not less than 45 days'
notice of resignation to the Trustee and InSight, and (ii) the Collateral Agent
may be removed at any time, with or without cause, pursuant to the instructions
of the Directing Noteholders.
Section 6.12. Appointment of Successor Collateral Agent. Upon any such
resignation or removal, a successor Collateral Agent may be appointed by the
Trustee or by the instructions of the Directing Noteholders with the consent of
InSight. If no successor Collateral Agent shall have been so appointed and shall
have accepted such appointment within 45 days after the predecessor Collateral
Agent gave notice of resignation or was removed, the retiring Collateral Agent
may appoint a successor Collateral Agent, or petition a court of competent
jurisdiction for appointment of a successor Collateral Agent, which shall be a
bank or trust company (i) authorized to exercise corporate trust powers, (ii)
acceptable to the Trustee, (iii) having a combined capital and surplus of at
least $50,000,000 and (iv) maintaining an office in New York, New York.
Section 6.13. Succession. When the Person so appointed as successor
Collateral Agent accepts such appointment:
(i) such Person shall succeed to and become vested with all the
rights, powers, privileges and duties of the predecessor Collateral Agent,
and the predecessor Collateral Agent shall be discharged from its duties
and obligations hereunder, and
(ii) the predecessor Collateral Agent, upon payment of all amounts
owed to it, shall promptly transfer all Collateral within its possession or
control to the possession or control of the successor Collateral Agent and
shall execute and deliver such notices, instructions and assignments as may
be necessary or desirable or reasonably requested by the successor
Collateral Agent to transfer to the successor Collateral Agent all Liens,
interests, rights, powers and remedies of the predecessor Collateral Agent
in respect of the Collateral or under the Collateral Documents. Thereafter
the predecessor Collateral Agent shall remain entitled to enforce the
immunities granted to it in this Article VI.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Amendment.
(a) This Agreement may be amended or supplemented from time to time by
the written agreement of the Loan Parties and the Collateral Agent, acting
pursuant to the instructions of the Directing Noteholders if so required
pursuant to Article III and in compliance with Section 3.02.
13
(b) Notwithstanding anything contained herein or in any Collateral
Document, any (x) Collateral Document entered into after the Issue Date that is
not in the form attached to any Collateral Document entered into on the Issue
Date or (y) amendment or supplement to any Collateral Document that, in each
case, imposes any obligation upon the Collateral Agent not contemplated by this
Agreement or the other Collateral Documents in effect on the Issue Date or
adversely affects the rights of the Collateral Agent in its individual capacity
will become effective only with the consent of the Collateral Agent in its
individual capacity. The Collateral Agent shall promptly receive copies of all
Collateral Documents executed after the Issue Date.
Section 7.02. Further Assurances.
(a) At any time or from time to time, each Loan Party will, at its
expense, promptly execute, acknowledge and deliver such further documents and do
such other acts and things as may be necessary or appropriate, and such other
instruments, acts or things as the Collateral Agent may reasonably request, in
order to assure and confirm that each Subsidiary required by the Indenture to
guarantee payment of the Note Obligations has duly guaranteed payment of all the
Note Obligations and that the Collateral Agent holds, for the exclusive benefit
of all present and future holders of Note Obligations, duly created, enforceable
and perfected first priority Liens (subject only to Permitted Liens (as defined
in the Security Agreement)) upon all interests in Collateral at any time owned
or acquired by the Loan Parties or any of such Subsidiary or as the Collateral
Agent or the Trustee otherwise may reasonably request in order to carry out and
give full effect to the intents and purposes of the Note Documents.
(b) Upon request of the Collateral Agent at any time and from time to
time, each of the Loan Parties will, and will cause each of its Subsidiaries to,
promptly execute, acknowledge and deliver such security documents, instruments,
certificates, notices and other documents and take such other actions as shall
be required or which the Collateral Agent may reasonably request to create,
perfect, protect, assure or enforce the Liens and benefits intended to be
conferred, as contemplated by the Indenture and the Collateral Documents, upon
the Collateral Agent for the exclusive benefit of the holders of the Note
Obligations. If any Loan Party or such Subsidiary fails to do so, the Collateral
Agent is hereby irrevocably authorized and empowered, with full power of
substitution, to execute, acknowledge and deliver such security documents,
instruments, certificates, notices and other documents and, subject to the
provisions of the Collateral Documents, take such other actions in the name,
place and stead of the Loan Parties or such Subsidiary, but the Collateral Agent
will have no obligation to do so and no liability for any action taken or
omitted by it in good faith in connection therewith.
Section 7.03. Successors and Assigns.
(a) This Agreement is legally binding upon and enforceable against the
Collateral Agent. Except as provided in Section 6.02 or in any Collateral
Document, the Person acting as Collateral Agent may not, in its individual
capacity, delegate any of its duties or assign any of its rights hereunder, and
any attempted delegation or assignment of any such duties or rights shall be
void. All obligations of the Collateral Agent hereunder shall inure to the
benefit of, and be enforceable by, the Trustee and each present and future
holder of Note Obligations, each of whom shall be entitled to enforce this
Agreement as a third party beneficiary hereof, and all of their respective
successors and assigns.
14
(b) This Agreement is further binding upon each of the Loan Parties
and their respective successors. No Loan Party may delegate any of its duties or
assign any of its rights hereunder, and any attempted delegation or assignment
of any such duties or rights shall be void.
(c) The obligations of the Collateral Agent set forth in Sections 5.01
and 5.02 of this Agreement shall also be enforceable by the Loan Parties
directly affected by any breach thereof and their respective successors and
assigns.
Section 7.04. Delay and Waiver. No failure to exercise, no course of
dealing with respect to the exercise of, and no delay in exercising, any right,
power or remedy arising under this Agreement or any of the other Collateral
Documents shall impair any such right, power or remedy or operate as a waiver
thereof. No single or partial exercise of any such right, power or remedy shall
preclude any other or future exercise thereof or the exercise of any other
right, power or remedy. The remedies herein are cumulative and are not exclusive
of any remedies provided by law.
Section 7.05. Notices. Any communications, including notices and
instructions, between the parties hereto or notices provided herein to be given
may be given to the following addresses:
If to the Collateral Agent:
If to the Trustee:
If to any Loan Party:
Each notice hereunder shall be in writing and may be personally served
or sent by facsimile or United States mail or courier service and shall be
deemed to have been given when
15
delivered in person or by courier service and signed for against receipt
thereof, upon receipt of facsimile, or three Business Days after depositing it
in the United States mail with postage prepaid and properly addressed; provided,
no notice to the Collateral Agent or the Trustee shall be effective unless and
until received by its officer responsible for the administration of the
transaction contemplated hereby. Each party may change its address for notice
hereunder to any other location within the continental United States by giving
written notice thereof to the other parties as set forth in this Section 7.05.
Section 7.06. Entire Agreement. This Agreement states the complete
agreement of the parties relating to the undertaking of the Collateral Agent set
forth herein and supersedes all oral negotiations and prior writings in respect
of such undertaking.
Section 7.07. Compensation and Expenses. Each of the Loan Parties
jointly and severally agrees to pay, promptly within 30 days following demand:
(i) all reasonable out-of-pocket costs and expenses incurred in the
preparation, execution, delivery, filing, recordation, administration or
enforcement of this Agreement or any other Collateral Document or any
consent, amendment, waiver or other modification relating thereto;
(ii) all reasonable out-of-pocket fees, expenses and disbursements of
legal counsel and any auditors, accountants, consultants or appraisers or
other professional advisors and agents engaged by the Collateral Agent in
connection with the negotiation, preparation, closing, administration,
performance or enforcement of this Agreement and the other Collateral
Documents or any consent, amendment waiver or other modification relating
thereto and any other document or matter requested by one or more Loan
Parties;
(iii) all reasonable out-of-pocket costs and expenses of creating,
perfecting, or releasing the Collateral Agent's security interests in the
Collateral, including filing and recording fees, expenses and taxes, stamp
or documentary taxes, search fees, title insurance premiums;
(iv) all reasonable out-of-pocket costs of any opinion of counsel
required hereby to be delivered to the Collateral Agent or requested by the
Collateral Agent in connection herewith;
(v) all other reasonable out-of-pocket costs and expenses incurred by
the Collateral Agent in connection with the negotiation, preparation and
execution of the Collateral Documents and any consents, amendments, waivers
or other modifications thereto and the transactions contemplated thereby or
the exercise of its rights or performance of its obligations by the
Collateral Agent thereunder; and
(vi) all costs and expenses incurred by the Collateral Agent in
connection with the preservation, collection, foreclosure or enforcement of
the Liens granted by the Collateral Documents or any interest, right, power
or remedy of the Collateral Agent or in connection with the collection or
enforcement of any of the Note Obligations or the proof, protection,
administration or resolution of any claim based upon the Note Obligations
in any Insolvency Proceeding, including all fees and disbursements of
16
attorneys, accountants, auditors, consultants, appraisers and other
professionals engaged by the Collateral Agent or the Trustee.
The agreements in this Section 7.07 shall survive repayment of the
Senior Secured Notes.
Section 7.08. Indemnity.
(a) In addition to the payment of costs and expenses pursuant to
Section 7.07, whether or not the transactions contemplated hereby shall be
consummated, each of the Loan Parties jointly and severally agrees to defend
(subject to the Indemnitees' selection of counsel), indemnify, pay and hold
harmless, the Collateral Agent and the Trustee and each of their respective
Affiliates and each and all of the directors, officers, partners, trustees,
employees, attorneys and agents, and in each case their respective heirs,
representatives, successors and assigns (each of the foregoing, an "INDEMNITEE")
from and against any and all liabilities, obligations, losses, damages,
penalties, claims, demands, actions, suits, judgments, costs and expenses of any
kind, including, without limitation, the reasonable fees and disbursements of
counsel, which may be incurred by, imposed on or asserted against such
Indemnitee in connection with any investigation or administrative or judicial
proceeding (whether or not such Indemnitee shall be designated a party thereto)
brought or threatened relating to or arising out of this Agreement or in any
other way connected with the enforcement of any of the terms of, or the
preservation of any rights hereunder ("INDEMNIFIED LIABILITIES"); provided, no
Indemnitee shall be entitled to indemnification hereunder with respect to any
Indemnified Liability to the extent such Indemnified Liability is found by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
(b) All amounts due under Section 7.08(a) shall be payable not later
than 10 days after written demand therefor.
(c) To the extent that the undertakings to defend, indemnify, pay and
hold harmless set forth in Section 7.08(a) may be unenforceable in whole or in
part because they are violative of any law or public policy, each of the Loan
Parties shall contribute the maximum portion that it is permitted to pay and
satisfy under applicable law to the payment and satisfaction of all Indemnified
Liabilities incurred by Indemnitees or any of them.
(d) No Loan Party shall ever assert any claim against any Indemnitee,
on any theory of liability, for any lost profits or special, indirect or
consequential damages or (to the fullest extent lawful) any punitive damages
arising out of, in connection with, or as a result of, this Agreement or any
other Note Document or any agreement or instrument or transaction contemplated
hereby or relating in any respect to any Indemnified Liability, and each Loan
Party hereby forever waives, releases and agrees not to sue upon any claim for
any such lost profits or special, indirect, consequential or (to the fullest
extent lawful) punitive damages, whether or not accrued and whether or not known
or suspected to exist in its favor.
(e) No Finance Party shall ever assert any claim against the
Collateral Agent each of its Affiliates and each and all of the directors,
officers, partners, trustees, employees,
17
attorneys and agents, and in each case their respective heirs, representatives,
successors and assigns, on any theory of liability, for any lost profits or
special, indirect or consequential damages or (to the fullest extent lawful) any
punitive damages arising out of, in connection with, or as a result of, this
Agreement or any other Note Document or any agreement or instrument or
transaction contemplated hereby or relating in any respect to any Indemnified
Liability, and each Finance Party hereby forever waives, releases and agrees not
to sue upon any claim for any such lost profits or special, indirect,
consequential or (to the fullest extent lawful) punitive damages, whether or not
accrued and whether or not known or suspected to exist in its favor.
(f) The agreements in this Section 7.08 shall survive repayment of the
Senior Secured Notes and all other amounts payable hereunder.
Section 7.09. Obligations Secured. All obligations of the Loan Parties
set forth in or arising under this Agreement shall be Note Obligations and are
secured by all Liens granted by the Collateral Documents.
Section 7.10. Severability. If any provision of this Agreement is
invalid, illegal or unenforceable in any respect or in any jurisdiction, the
validity, legality and enforceability of such provision in all other respects
and of all remaining provisions, and of such provision in all other
jurisdictions, shall not in any way be affected or impaired thereby.
Section 7.11. Governing Law; Submission to Jurisdiction.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION,
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
(b) Any legal action or proceeding with respect to this Agreement or
any other Collateral Document may be brought in the courts of the State of New
York in New York County, or of the United States for the Southern District of
New York, and, by execution and delivery of this Agreement, each Loan Party
hereby irrevocably accepts for itself and in respect of its property, generally
and unconditionally, the nonexclusive jurisdiction of such courts. Each Loan
Party irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such
proceeding brought in such court and any claim that any such proceeding brought
in any such court has been brought in an inconvenient forum.
(c) Each Loan Party hereby consents to process being served in any
such suit, action or proceeding by the mailing of a copy thereof by registered
or certified mail, postage prepaid, return receipt requested, to Holdings' or
such Loan Party's address referred to in Section 7.05, as the case may be. Each
Loan Party agrees that such service (i) shall be deemed in every respect
effective service of process upon it in any such suit, action or proceeding and
(ii) shall, to the fullest extent permitted by law, be taken and held to be
valid personal service upon and personal delivery to it. Nothing in this Section
7.11 shall affect the right of the Collateral Agent
18
or the Trustee to serve process in any manner permitted by law or limit the
right of any of them to bring proceedings against one or more Loan Parties in
the courts of any jurisdiction or jurisdictions.
Section 7.12. Waiver of Right to Trial by Jury. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY TERM LOAN DOCUMENT OR ANY
NOTE DOCUMENT IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY NOTE DOCUMENT OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section 7.13. Section Titles. The section titles contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of this Agreement, except when used to reference
such sections.
Section 7.14. Counterparts; Effectiveness. This Agreement may be
executed in one or more counterparts, each of which shall be an original and all
of which shall together constitute one and the same document. Signature pages
may be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are attached to the same document.
Delivery of an executed signature page of this Agreement by facsimile or other
electronic transmission shall be as effective as delivery of a manually executed
counterpart thereof. This Agreement shall become effective upon the execution of
a counterpart hereof by each of the parties hereto and receipt by each party of
written or telephonic notification of such execution and authorization of
delivery thereof.
[Signature Pages Follow]
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
INSIGHT HEALTH SERVICES CORP.
By: /s/ Mitch C. Hill
------------------------------------
Name: Mitch C. Hill
Title: Executive Vice President and
Chief Financial Officer
INSIGHT HEALTH SERVICES HOLDINGS CORP.
By: /s/ Mitch C. Hill
------------------------------------
Name: Mitch C. Hill
Title: Executive Vice President and
Chief Financial Officer
WILKES-BARRE IMAGING, L.L.C.
By: InSight Health Corp., as the sole
member and sole manager
By: /s/ Mitch C. Hill
------------------------------------
Name: Mitch C. Hill
Title: Executive Vice President and
Chief Financial Officer
MRI ASSOCIATES, L.P.
By: InSight Health Corp., as the general
partner
By: /s/ Mitch C. Hill
------------------------------------
Name: Mitch C. Hill
Title: Executive Vice President and
Chief Financial Officer
VALENCIA MRI, LLC
ORANGE COUNTY REGIONAL PET CENTER -
IRVINE, LLC
SAN FERNANDO VALLEY REGIONAL PET
CENTER, LLC
By: InSight Health Corp., as the sole
member
By: /s/ Mitch C. Hill
------------------------------------
Name: Mitch C. Hill
Title: Executive Vice President and
Chief Financial Officer
PARKWAY IMAGING CENTER, LLC
By: /s/ Marilyn U. MacNiven-Young
------------------------------------
Name: Marilyn U. MacNiven-Young
Title: Manager
S-2
INSIGHT HEALTH CORP.
OPEN MRI, INC.
MAXUM HEALTH CORP.
RADIOSURGERY CENTERS, INC.
MAXUM HEALTH SERVICES CORP.
DIAGNOSTIC SOLUTIONS CORP.
MAXUM HEALTH SERVICES OF NORTH TEXAS,
INC.
MAXUM HEALTH SERVICES OF DALLAS, INC.
NDDC, INC.
SIGNAL MEDICAL SERVICES, INC.
INSIGHT IMAGING SERVICES CORP.
COMPREHENSIVE MEDICAL IMAGING, INC.
COMPREHENSIVE MEDICAL IMAGING CENTERS,
INC.
COMPREHENSIVE MEDICAL IMAGING -
BILTMORE, INC.
COMPREHENSIVE OPEN MRI-EAST MESA, INC.
TME ARIZONA, INC.
COMPREHENSIVE MEDICAL IMAGING -FREMONT,
INC.
COMPREHENSIVE MEDICAL IMAGING-SAN
FRANCISCO, INC.
COMPREHENSIVE OPEN MRI-GARLAND, INC.
IMI OF ARLINGTON, INC.
COMPREHENSIVE MEDICAL IMAGING-
FAIRFAX, INC.
IMI OF KANSAS CITY, INC.
COMPREHENSIVE MEDICAL IMAGING -
BAKERSFIELD, INC.
By: /s/ Mitch C. Hill
------------------------------------
Name: Mitch C. Hill
Title: Executive Vice President and
Chief Financial Officer
S-3
MAXUM HEALTH SERVICES CORP.
By: /s/ Mitch C. Hill
------------------------------------
Name: Mitch C. Hill
Title: Executive Vice President and
Chief Financial Officer
By: /s/ Marilyn U. MacNiven-Young
------------------------------------
Name: Marilyn U. MacNiven-Young
Title: Executive Vice President,
General Counsel and Secretary
COMPREHENSIVE OPEN MRI-
CARMICHAEL/FOLSOM, LLC
SYNCOR DIAGNOSTICS SACRAMENTO, LLC
SYNCOR DIAGNOSTICS BAKERSFIELD, LLC
By: Comprehensive Medical Imaging, Inc.
and Comprehensive Medical Imaging
Centers, Inc., as the members
By: /s/ Mitch C. Hill
------------------------------------
Name: Mitch C. Hill
Title: Executive Vice President and
Chief Financial Officer
PHOENIX REGIONAL PET CENTER-THUNDERBIRD,
LLC
By: Comprehensive Medical Imaging
Centers, Inc., as the sole member
By: /s/ Mitch C. Hill
------------------------------------
Name: Mitch C. Hill
Title: Executive Vice President and
Chief Financial Officer
MESA MRI
MOUNTAIN VIEW MRI
LOS GATOS IMAGING CENTER
WOODBRIDGE MRI
JEFFERSON MRI-BALA
JEFFERSON MRI
By: Comprehensive Medical Imaging, Inc.
and Comprehensive Medical Imaging
Centers, Inc., as the members
By: /s/ Mitch C. Hill
------------------------------------
Name: Mitch C. Hill
Title: Executive Vice President and
Chief Financial Officer
S-4
U.S. BANK NATIONAL ASSOCIATION, as
Trustee
By: /s/ Jean Clarke
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Name: Jean Clarke
Title: Assistant Vice President
U.S. BANK NATIONAL ASSOCIATION, as
Collateral Agent
By: /s/ Jean Clarke
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Name: Jean Clarke
Title: Assistant Vice President
S-5
EXHIBIT A
FORM OF SECURITY AGREEMENT
EXHIBIT B
FORM OF PLEDGE AGREEMENT