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Exhibit 4.5
EXECUTION COPY
INSIGHT HEALTH SERVICES CORP.
$100,000,000
95/8% SENIOR SUBORDINATED NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
June 12, 1998
NationsBanc Montgomery Securities LLC
NationsBank Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255-0001
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Sutro & Co. Incorporated
11150 Santa Monica Blvd.
Los Angeles, CA 90025
Ladies and Gentlemen:
InSight Health Services Corp., a Delaware corporation (the
"Company"), proposes to issue and sell (the "Initial Placement") to NationsBanc
Montgomery Securities, Inc., Morgan Stanley & Co. Incorporated and Sutro & Co.
Incorporated (the "Initial Purchasers" and, individually, each an "Initial
Purchaser") upon terms set forth in a purchase agreement dated June 9, 1998 (the
"Purchase Agreement") among the Company, the Initial Purchasers and the
Subsidiary Guarantors named therein, its 95/8% Senior Subordinated Notes due
2008 (the "Notes"). The Notes are to be fully and unconditionally guaranteed
jointly and severally on an unsecured, senior subordinated basis by all existing
and future United States subsidiaries of the Company (other than Permitted Joint
Ventures) (each such existing guarantor, a "Subsidiary Guarantor" and
collectively, the "Subsidiary Guarantors"). As an inducement to the Initial
Purchasers to enter into the Purchase Agreement and purchase the Notes and in
satisfaction of a condition to your obligations under the Purchase Agreement,
the Company and the Subsidiary Guarantors agree with you for the benefit of the
holders from time to time of the Notes (including the Initial Purchasers) (each
of the foregoing a "Holder" and together the "Holders"), as follows:
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1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
"Affiliate" of any specified person means any other person
that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified person. For purposes of this
definition, control of a person means the power, direct or indirect, to
direct or cause the direction of the management and policies of such
person whether by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Closing Date" has the meaning set forth in the Purchase
Agreement.
"Commission" means the Securities and Exchange Commission.
"Company" has the meaning set forth in the preamble hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Notes" means debt securities issued by the Company
and guaranteed by the Subsidiary Guarantors, identical in all material
respects to the Notes (except that (i) interest thereon shall accrue
from the last date on which interest was paid on the Notes or, if no
such interest has been paid, from June 12, 1998 and (ii) the liquidated
damages provisions and the transfer restrictions pertaining to the
Notes will be modified or eliminated, as appropriate, in the Exchange
Notes), to be issued under the Indenture.
"Exchange Offer" means the proposed offer to the Holders to
issue and deliver to such Holders, in exchange for the Notes, a like
principal amount of Exchange Notes.
"Exchange Offer Registration Period" means the longer of (A)
the period until the consummation of the Exchange Offer and (B) two
years after effectiveness of the Exchange Offer Registration Statement,
exclusive of any period during which any stop order shall be in effect
suspending the effectiveness of the Exchange Offer Registration
Statement; provided, however, that in the event that all resales of
Exchange Notes (including, subject to the time periods set forth
herein, any resales by Exchanging Dealers) covered by such Exchange
Offer Registration Statement have been made, the Exchange Offer
Registration Statement need not remain continuously effective for the
period set forth in clause (B) above.
"Exchange Offer Registration Statement" means a registration
statement of the Company on an appropriate form under the Securities
Act with respect to the Exchange
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Offer, all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Exchanging Dealer" means any Holder (which may include the
Initial Purchasers) that is a broker-dealer, electing to exchange Notes
acquired for its own account as a result of market-making activities or
other trading activities for Exchange Notes.
"Final Memorandum" has the meaning set forth in the Purchase
Agreement.
"Holder" has the meaning set forth in the preamble hereto.
"Indenture" means the indenture relating to the Notes and the
Exchange Notes, dated as of June 1, 1998, among the Company and all
existing and future subsidiaries of the Company (other than Permitted
Joint Ventures), as Subsidiary Guarantors, and State Street Bank and
Trust Company, N.A., as trustee, as the same may be amended,
supplemented, waived or otherwise modified from time to time in
accordance with the terms thereof.
"Initial Placement" has the meaning set forth in the preamble
hereto.
"Initial Purchasers" has the meaning set forth in the Purchase
Agreement.
"Losses" has the meaning set forth in Section 6(d) hereto.
"Majority Holders" means the Holders of a majority of the
aggregate principal amount of Notes registered under a Registration
Statement.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer an
underwritten offering under a Shelf Registration Statement.
"Notes" has the meaning set forth in the preamble hereto.
"Permitted Joint Ventures" has the meaning set forth in the
Indenture.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective Registration Statement in reliance upon Rule 430A under the
Securities Act), as amended or supplemented by
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any prospectus supplement, with respect to the terms of the offering of
any portion of the Notes or the Exchange Notes covered by such
Registration Statement, and all amendments and supplements to the
Prospectus, including post-effective amendments.
"Purchase Agreement" has the meaning set forth in the preamble
hereto.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Notes
or the Exchange Notes (including the Subsidiary Guarantees thereon)
pursuant to the provisions of this Agreement, amendments and
supplements to such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein,
all exhibits thereto, and all material incorporated by reference
therein.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company pursuant to the provisions of Section 3
hereof, which covers some or all of the Notes or Exchange Notes, as
applicable (including the Subsidiary Guarantees thereon), on an
appropriate form under Rule 415 under the Securities Act, or any
similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference
therein.
"Subsidiary Guarantees" has the meaning set forth in the
Purchase Agreement.
"Subsidiary Guarantors" has the meaning set forth in the
preamble hereto.
"Trustee" means the trustee with respect to the Notes or
Exchange Notes, as applicable, under the Indenture.
"underwriter" means any underwriter of Notes in connection
with an offering thereof under a Shelf Registration Statement.
2. Exchange Offer; Resales of Exchange Notes by Exchanging
Dealers; Private Exchange.
(a) The Company and the Subsidiary Guarantors shall prepare
and, on or
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prior to the 60th calendar day following the Closing Date, shall file with the
Commission the Exchange Offer Registration Statement with respect to the
Exchange Offer. The Company and the Subsidiary Guarantors shall use their best
efforts (i) to cause the Exchange Offer Registration Statement to be declared
effective under the Securities Act on or prior to the 150th calendar day
following the Closing Date and remain effective until the closing of the
Exchange Offer and (ii) to consummate the Exchange Offer on or prior to the
180th calendar day following the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company and the Subsidiary Guarantors shall promptly commence the
Exchange Offer, it being the objective of such Exchange Offer to enable each
Holder electing to exchange Notes for Exchange Notes (assuming that such Holder
(x) is not an "affiliate" of the Company within the meaning of the Securities
Act, (y) is not a broker-dealer that acquired the Notes in a transaction other
than as a part of its market-making or other trading activities and (z) if such
Holder is not a broker-dealer, acquires the Exchange Notes in the ordinary
course of such Holder's business, is not participating in the distribution of
the Exchange Notes and has no arrangements or understandings with any person to
participate in the distribution of the Exchange Notes) to resell such Exchange
Notes from and after their receipt without any limitations or restrictions under
the Securities Act and without material restrictions under the securities laws
of a substantial proportion of the several states of the United States.
(c) In connection with the Exchange Offer, the Company shall
mail to each Holder a copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal and
related documents, stating, in addition to such other disclosures as are
required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Agreement and that all Notes validly tendered will be accepted for
exchange;
(ii) the dates of acceptance for exchange;
(iii) that any Note not tendered will remain outstanding and
continue to accrue interest, but will not retain any rights under this
Agreement;
(iv) that Holders electing to have a Note exchanged pursuant
to the Exchange Offer will be required to surrender such Note, together
with the enclosed letters of transmittal, to the institution and at the
address (located in the Borough of Manhattan, The City of New York)
specified in the notice prior to the close of business on the last day
of acceptance for exchange; and
(v) that Holders will be entitled to withdraw their election,
not later than the close of business on the last day of acceptance for
exchange, by sending to the institution and at the address (located in
the Borough of Manhattan, The City of New
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York) specified in the notice a telegram, telex, facsimile transmission
or letter setting forth the name of such Holder, the principal amount
of Notes delivered for exchange and a statement that such Holder is
withdrawing its election to have such Notes exchanged; and shall keep
the Exchange Offer open for acceptance for not less than 30 days and
not more than 45 days (or longer if required by applicable law) after
the date notice thereof is mailed to the Holders; utilize the services
of a depositary for the Exchange Offer with an address in the Borough
of Manhattan, The City of New York; and comply in all respects with all
applicable laws relating to the Exchange Offer.
(d) As soon as practicable after the close of the Exchange
Offer, the Company shall:
(i) accept for exchange all Notes duly tendered and not
validly withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Notes so
accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
to each Holder Exchange Notes equal in principal amount to the Notes of
such Holder so accepted for exchange.
(e) The Initial Purchasers, the Company and the Subsidiary
Guarantors acknowledge that, pursuant to interpretations by the staff of the
Commission of Section 5 of the Securities Act, and in the absence of an
applicable exemption therefrom, each Exchanging Dealer is required to deliver a
Prospectus in connection with a sale of any Exchange Notes received by such
Exchanging Dealer pursuant to the Exchange Offer in exchange for Notes acquired
for its own account as a result of market-making activities or other trading
activities. Accordingly, the Company and the Subsidiary Guarantors shall:
(i) include the information set forth in Annex A hereto on the
cover of the Exchange Offer Registration Statement, in Annex B hereto
in the forepart of the Exchange Offer Registration Statement in a
section setting forth details of the Exchange Offer, in Annex C hereto
in the underwriting or plan of distribution section of the Prospectus
forming a part of the Exchange Offer Registration Statement, and in
Annex D hereto in the letter of transmittal delivered pursuant to the
Exchange Offer; and
(ii) use its best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Securities Act
during the Exchange Offer Registration Period for delivery of the
prospectus included therein by Exchanging Dealers in connection with
sales of Exchange Notes received pursuant to the Exchange Offer, as
contemplated by Section 4(h) below; provided, however, that the Company
shall not be required to maintain the effectiveness of the Exchange
Offer Registration Statement for
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more than 60 days following the consummation of the Exchange Offer
unless the Company has been notified in writing on or prior to the 60th
day following the consummation of the Exchange Offer by one or more
Exchanging Dealers that such Holder has received Exchange Notes as to
which it will be required to deliver a prospectus upon resale.
(f) In the event that the Initial Purchasers determine that
they are not eligible to participate in the Exchange Offer with respect to the
exchange of Notes constituting any portion of an unsold allotment, upon the
effectiveness of the Shelf Registration Statement as contemplated by Section 3
hereof and at the request of the Initial Purchasers, the Company shall issue and
deliver to the Initial Purchasers, or to the party purchasing Exchange Notes
registered under the Shelf Registration Statement from the Initial Purchasers,
in exchange for such Notes, a like principal amount of Exchange Notes. The
Company shall use its best efforts to cause the CUSIP Service Bureau to issue
the same CUSIP number for such Exchange Notes as for Exchange Notes issued
pursuant to the Exchange Offer.
(g) The Company and the Subsidiary Guarantors shall use their
best efforts to complete the Exchange Offer as provided above and shall comply
with the applicable requirements of the Securities Act, the Exchange Act and
other applicable laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than that (i) the
Exchange Offer does not violate applicable law or any applicable interpretation
of the staff of the Commission, (ii) no action or proceeding shall have been
instituted or threatened in any court or by any governmental agency which might
materially impair the ability of the Company to proceed with the Exchange Offer,
and no material adverse development shall have occurred in any existing action
or proceeding with respect to the Company and (iii) all governmental approvals
shall have been obtained, which approvals the Company deems necessary for the
consummation of the Exchange Offer. The Company shall inform the Initial
Purchasers of the names and addresses of the Holders to whom the Exchange Offer
is made, and the Initial Purchasers shall have the right, subject to
applicable law, to contact such Holders and otherwise facilitate the tender of
Notes in the Exchange Offer.
3. Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted to effect
the Exchange Offer as contemplated by Section 2 hereof, or (ii) for any reason
other than those specified in clause (i) above, the Exchange Offer is not
consummated within 180 days of the Closing Date unless the Exchange Offer has
commenced, in which case, the Exchange Offer is not consummated within 30 days
after the date on which the Exchange Offer was commenced, or (iii) any Initial
Purchaser so requests with respect to Notes held by it within 120 days following
consummation of the Exchange Offer, or (iv) any Holder (other than the Initial
Purchasers) is not eligible to participate in the Exchange Offer or has
participated in the Exchange Offer and has received Exchange Notes that are not
freely tradeable (for reasons other than outlined in Section 2(d) and so
notifies the
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Company within 60 days of becoming aware of such restrictions or
(v) in the case where the Initial Purchasers participate in the Exchange Offer
or acquire Exchange Notes pursuant to Section 2(f) hereof, the Initial
Purchasers do not receive freely tradeable Exchange Notes in exchange for Notes
constituting any portion of an unsold allotment (it being understood that, for
purposes of this Section 3, (x) the requirement that the Initial Purchaser
deliver a Prospectus containing the information required by Items 507 and/or 508
of Regulation S-K under the Securities Act in connection with sales of Exchange
Notes acquired in exchange for such Notes shall result in such Exchange Notes
being not "freely tradeable" and (y) the requirement that an Exchanging Dealer
deliver a Prospectus in connection with sales of Exchange Notes acquired in the
Exchange Offer in exchange for Notes acquired as a result of market-making
activities or other trading activities shall not result in such Exchange Notes
being not "freely tradeable"), the following provisions shall apply:
(a) The Company and the Subsidiary Guarantors shall, as
promptly as practicable, file with the Commission a Shelf Registration
Statement relating to the offer and sale of the Notes or the Exchange
Notes, as applicable, by the Holders from time to time in accordance
with the methods of distribution elected by such Holders and set forth
in such Shelf Registration Statement and Rule 415 under the Securities
Act, provided that, with respect to Exchange Notes received by the
Initial Purchasers in exchange for Notes constituting any portion of an
unsold allotment, the Company and the Subsidiary Guarantors may, if
permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration Statement
containing the information required by Regulation S-K Items 507 and/or
508, as applicable, in satisfaction of its obligations under this
paragraph (a) with respect thereto, and any such Exchange Offer
Registration Statement, as so amended, shall be referred to herein as,
and governed by the provisions herein applicable to, a Shelf
Registration Statement.
(b) The Company and the Subsidiary Guarantors shall use their
best efforts to cause the Shelf Registration Statement to be declared
effective under the Securities Act as promptly as possible on or prior
to 45 days after filing such Shelf Registration Statement pursuant to
this Section 3 and to keep such Shelf Registration Statement
continuously effective in order to permit the Prospectus contained
therein to be usable by Holders for a period of two years from the date
the Shelf Registration Statement is declared effective by the
Commission or such shorter period that will terminate when all the
Notes or Exchange Notes, as applicable, covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement (in any such case, such period being called the
"Shelf Registration Period"). The Company shall be deemed not to have
used its best efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily takes any
action that would result in Holders of Notes covered thereby not being
able to offer and sell such Notes during that period, unless (i) such
action is required by applicable law, (ii) the Company complies with
this Agreement or (iii) such action is taken by the Company in good
faith and for valid business reasons (not including avoidance of the
Company's obligations
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hereunder), including the acquisition or divestiture of assets, so long
as the Company promptly thereafter complies with the requirements of
Section 4(l) hereof, if applicable.
(c) No Holder may include any of its Notes in any Shelf
Registration Statement pursuant to this Agreement unless and until such
holder furnishes to the Company in writing, within 20 business days
after receipt of a request therefor, such information as required by
the rules and practices of the Commission for use in connection with
any Shelf Registration Statement or Prospectus or preliminary
prospectus included therein. No Holder shall be entitled to Liquidated
Damages pursuant to Section 5(b) hereof unless and until such Holder
shall have provided all such required information. Each Holder as to
which any Shelf Registration Statement is being effected will be
required to agree to furnish promptly to the Company all information
required to be disclosed in order to make information previously
furnished to the Company by such Holder not materially misleading.
4. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company and the Subsidiary Guarantors shall prior to
the filing of any Registration Statement, any Prospectus, any amendment
to a Registration Statement or amendment or supplement to a Prospectus
or any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after initial filing of a
Registration Statement, provide copies of such document to the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Holders and their counsel) and make such representatives
of the Company and the Subsidiary Guarantors as shall be reasonably
requested by the Initial Purchasers or their counsel (and, in the case
of a Shelf Registration Statement, the Majority Holders or their
counsel) available for discussion of such document, and shall not at
any time file or make any amendment to the Registration Statement, any
Prospectus or any amendment of or supplement to a Registration
Statement or a Prospectus or any document which is to be incorporated
by reference into a Registration Statement or a Prospectus, of which
the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel) shall not have
previously been advised and furnished a copy or to which the Initial
Purchaser or its counsel (and, in the case of a Shelf Registration
Statement, the Holders or their counsel) shall reasonably object,
except for any amendment or supplement or document (a copy of which has
been previously furnished to the Initial Purchasers and their counsel
(and, in the case of a Shelf Registration Statement, the Majority
Holders and their counsel)) which counsel to the Company and the
Subsidiary Guarantors shall advise the Company and the Subsidiary
Guarantors is required in order to comply with applicable law; each of
the Initial Purchasers agrees that, if it receives timely notice and
drafts under this clause (a), it will not take actions or make
objections pursuant to this clause (a) such
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that the Company and the Subsidiary Guarantors are unable to comply
with their obligations under Section 2.
(b) The Company and the Subsidiary Guarantors shall:
(i) use their best efforts to prepare any
Registration Statement and any amendment thereto and any
Prospectus contained therein and any amendment or supplement
thereto to comply in all material respects with the Securities
Act and the rules and regulations thereunder;
(ii) use their best efforts to prepare any
Registration Statement and any amendment thereto such that it
does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading; and
(iii) use their best efforts to prepare any
Prospectus forming part of any Registration Statement,
including any amendment or supplement to such Prospectus, such
that it does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances
under which they were made, not misleading.
(c) (1) The Company shall advise the Initial Purchasers and,
in the case of a Shelf Registration Statement, the Holders of Notes
covered thereby, and, if requested by the Initial Purchasers or any
such Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective; and
(ii) of any request by the Commission for amendments
or supplements to the Registration Statement or the Prospectus
included therein or for additional information.
(2) During the Shelf Registration Period or the Exchange Offer
Registration Period, as applicable, the Company shall advise the
Initial Purchasers and, in the case of a Shelf Registration Statement,
the Holders of Notes covered thereby, and, in the case of an Exchange
Offer Registration Statement, any Exchanging Dealer that has provided
in writing to the Company a telephone or facsimile number and address
for notices, and, if requested by the Initial Purchasers or any such
Holder or Exchanging Dealer, confirm such advice in writing:
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(i) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
(ii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Notes included therein for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(iii) of the happening of any event that requires the
making of any changes in the Registration Statement or the
Prospectus so that, as of such date, the Registration
Statement or the Prospectus does not include an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they
were made) not misleading (which advice shall be accompanied
by an instruction to suspend the use of the Prospectus until
the requisite changes have been made).
(d) The Company and the Subsidiary Guarantors shall use their
best efforts to obtain the withdrawal of any order suspending the
effectiveness of any Registration Statement at the earliest possible
time.
(e) The Company shall furnish to each Holder of Notes covered
by any Shelf Registration Statement, without charge, at least one copy
of such Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the
Holder so requests in writing, all exhibits thereto.
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Notes covered by any Shelf Registration
Statement, without charge, as many copies of the Prospectus (including
each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may
reasonably request; and the Company consents to the use of the
Prospectus or any amendment or supplement thereto by each of the
selling Holders of Notes in connection with the offering and sale of
the Notes covered by the Prospectus or any amendment or supplement
thereto.
(g) The Company shall furnish to each Exchanging Dealer that
so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, any documents
incorporated by reference therein and, if the Exchanging Dealer so
requests in writing, all exhibits thereto.
(h) The Company shall, during the Exchange Offer Registration
Period,
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promptly deliver to each Exchanging Dealer, without charge, as many
copies of the Prospectus included in such Exchange Offer Registration
Statement and any amendment or supplement thereto as such Exchanging
Dealer may reasonably request for delivery by such Exchanging Dealer in
connection with a sale of Exchange Notes received by it pursuant to the
Exchange Offer; and the Company consents to the use of the Prospectus
or any amendment or supplement thereto by any such Exchanging Dealer,
as provided in Section 2(e) above.
(i) Each Holder of Notes and each Exchange Dealer agrees by
its acquisition of such Notes or Exchange Notes to be sold by such
Exchange Dealer, as the case may be, that, upon actual receipt of
any notice from the Company of the happening of any event of the
kind described in paragraphs (c)(2)(i), (c)(2)(ii), or (c)(2)(iii)
of this Section 4, such Holder will forthwith discontinue
disposition of such Notes covered by such Registration Statement or
Prospectus or Exchange Notes to be sold by such Holder or Exchange
Dealer, as the case may be, until such Holder's or Exchange Dealer's
receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 4(l) hereof, or until it is advised in
writing by the Company that the use of the applicable Prospectus may
be resumed, and has received copies of any amendments or supplements
thereto. In the event that the Company shall give any such notice,
the Exchange Offer Registration Period shall be extended by the
number of days during such periods from and including the date of
the giving of such notice to and including the date when each seller
of Exchange Notes covered by such Registration Statement or Exchange
Notes to be sold by such Exchange Dealer, as the case may be, shall
have received (x) the copies of the supplemented or amended
Prospectus contemplated by Section 4(l) hereof or (y) the advice in
writing.
(j) Prior to the Exchange Offer or any other offering of Notes
pursuant to any Registration Statement, the Company and the Subsidiary
Guarantors shall register or qualify or cooperate with the Holders of
Notes included therein and their respective counsel in connection with
the registration or qualification of such Notes for offer and sale
under the securities or blue sky laws of such states as any such
Holders reasonably request in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such
states of the Notes covered by such Registration Statement; provided,
however, that the Company and the Subsidiary Guarantors will not be
required to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not then so qualified, to
file any general consent to service of process or to take any action
that would subject it to general service of process in any such
jurisdiction where it is not then so subject or to subject itself to
taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject.
(k) The Company shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing Notes
to be sold pursuant to any Registration Statement free of any
restrictive legends and in denominations of $1,000
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or an integral multiple thereof and registered in such names as Holders
may request prior to sales of Notes pursuant to such Registration
Statement.
(l) Upon the occurrence of any event contemplated by
paragraph (c)(2)(iii) of this Section 4, the Company and the
Subsidiary Guarantors shall promptly prepare and file a
post-effective amendment to any Registration Statement or an
amendment or supplement to the related Prospectus or any other
required document so that, as thereafter delivered to purchasers of
the Notes included therein, the Prospectus will not include an
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and, in the
case of a Shelf Registration Statement, notify the Holders to
suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event. Notwithstanding the foregoing, the
Company shall not be required to amend or supplement a Shelf
Registration Statement, any related Prospectus or any document
incorporated therein by reference, for a period not to exceed an
aggregate of 30 days in any calendar year, if (i) an event occurs
and is continuing as a result of which the Shelf Registration would,
in the Company's good faith judgment, contain an untrue statement of
a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading and (ii) the Company
determines in its good faith judgment that the disclosure of such
event at such time would have a material adverse effect on the
business, operations, or prospects of the Company or the disclosure
otherwise related to a pending material business transaction that
has not yet been publicly disclosed.
(m) Not later than the effective date of any such Registration
Statement hereunder, the Company shall provide a CUSIP number for the
Notes or Exchange Notes, as the case may be, registered under such
Registration Statement, and provide the Trustee with certificates for
such Notes or Exchange Notes, in a form eligible for deposit with The
Depository Trust Company.
(n) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make
generally available to its security holders as soon as practicable
after the effective date of the applicable Registration Statement an
earnings statement meeting the requirements of Rule 158 under the
Securities Act.
(o) The Company shall cause the Indenture to be qualified
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), in a timely manner.
(p) The Company may require each Holder of Notes to be sold
pursuant to any Shelf Registration Statement to furnish to the Company
such information regarding the Holder and the distribution of such
Notes as the Company may from time to time
14
reasonably require for inclusion in such Registration Statement.
(q) The Company shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf
Registration Statement, such information as the Managing Underwriters,
if any, and Majority Holders reasonably agree should be included
therein, and shall make all required filings of such Prospectus
supplement or post-effective amendment promptly upon notification of
the matters to be incorporated in such Prospectus supplement or
post-effective amendment.
(r) In the case of any Shelf Registration Statement, the
Company and the Subsidiary Guarantors shall enter into such
agreements (including underwriting agreements) and take all other
appropriate actions in order to expedite or to facilitate the
registration or the disposition of any Notes included therein, and
in connection therewith, if an underwriting agreement is entered
into, cause the same to contain indemnification provisions and
procedures no less favorable than those set forth in Section 6 (or
such other provisions and procedures acceptable to the Majority
Holders and the Managing Underwriters, if any) with respect to all
parties to be indemnified pursuant to Section 6.
(s) In the case of any Shelf Registration Statement, the
Company and the Subsidiary Guarantors shall:
(i) subject to having received reasonable
confidentiality assurance, make reasonably available for
inspection by the Holders of Notes to be registered
thereunder, any underwriter participating in any disposition
pursuant to such Shelf Registration Statement, and any
attorney, accountant or other agent retained by the Holders or
any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company
and any of its subsidiaries;
(ii) cause the Company's and the Subsidiary
Guarantors' officers, directors and employees to supply all
relevant information reasonably requested by the Holders or
any such underwriter, attorney, accountant or agent in
connection with any such Registration Statement as is
customary for similar due diligence examinations and make such
representatives of the Company and the Subsidiary Guarantors
as shall be reasonably requested by the Initial Purchasers or
Managing Underwriters, if any, available for discussion of any
such Registration Statement; provided, however, that all such
non-public information shall be kept confidential by the
Holders or any such underwriter, attorney, accountant or
agent, unless such disclosure is made in connection with a
court proceeding or required by law, (provided that the
Company must be given prior written notice of such disclosure)
or such information becomes available to the public generally
or through a third party without an accompanying obligation of
15
confidentiality other than as a result of a disclosure of such
information by any such Holder, underwriter, attorney,
accountant or agent;
(iii) make such representations and warranties to the
Holders of Notes registered thereunder and the underwriters,
if any, in form, substance and scope as are customarily made
by issuers to underwriters in similar underwritten offerings
as may be reasonably requested by them;
(iv) use its best efforts to obtain opinions of
counsel to the Company and the Subsidiary Guarantors and
updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling
Holder and the underwriters, if any, covering such matters
as are customarily covered in opinions requested in similar
underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
(v) use its best efforts to obtain "cold comfort"
letters and updates thereof from the independent certified
public accountants of the Company and the Subsidiary
Guarantors (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial
statements and financial data are, or are required to be,
included in the Registration Statement), addressed to the
underwriters, if any, and use reasonable efforts to have such
letter addressed to the selling Holders of Notes registered
thereunder (to the extent consistent with Statement on
Auditing Standards No. 72 of the American Institute of
Certified Public Accountants (AICPA) ("SAS 72")), in customary
form and covering matters of the type customarily covered in
"cold comfort" letters in connection with similar underwritten
offerings, or if the provision of such "cold comfort" letters
is not permitted by SAS No. 72 or if requested by the Initial
Purchasers or their counsel in lieu of a "cold comfort"
letter, an agreed-upon procedures letter under Statement on
Auditing Standards No. 35 of the AICPA, covering matters
requested by the Initial Purchasers or their counsel; and
(vi) deliver such documents and certificates as may
be reasonably requested by the Majority Holders and the
Managing Underwriters, if any, and customarily delivered in
similar offerings, including those to evidence compliance with
Section 4(k) and with any conditions contained in the
underwriting agreement or other agreement entered into by the
Company.
The foregoing actions set forth in clauses (iii), (iv), (v)
and (vi) of this Section 4(s) shall be performed at (A) the
effectiveness of such Shelf Registration Statement and each
post-effective amendment thereto and (B) each closing under any
underwriting or similar agreement as and to the extent required
thereunder.
16
(t) The Company and the Subsidiary Guarantors shall, in the
case of a Shelf Registration, use their best efforts to cause all Notes
to be listed on any securities exchange or any automated quotation
system on which similar securities issued by the Company are then
listed if requested by the Majority Holders, to the extent such Notes
satisfy applicable listing requirements.
(u) The Company and the Subsidiary Guarantors shall use their
best efforts to cause the Exchange Notes or Notes, as the case may be,
to be rated by two nationally recognized statistical rating
organizations (as such term is defined in Rule 436(g)(2) under the
Securities Act).
5. Registration Expenses; Remedies. (a) The Company and the
Subsidiary Guarantors shall bear all expenses incurred in connection with the
performance of their obligations under Sections 2, 3 and 4 hereof, including
without limitation: (i) all Commission, stock exchange or National Association
of Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any of the
Exchange Notes or Notes in no event to exceed $5,000), (iii) all expenses of any
persons in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements
and other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, if any, (v) all fees and disbursements
relating to the qualification of the Indenture under applicable securities laws,
(vi) the reasonable fees and disbursements of the Trustee and its counsel, (vii)
the fees and disbursements of counsel for the Company and the Subsidiary
Guarantors and, in the case of a Shelf Registration Statement, the reasonable
fees and disbursements of one counsel for the Holders (which counsel shall be
selected by the Majority Holders and which counsel may also be counsel for the
Initial Purchasers) and in the case of any Exchange Offer Registration
Statement, the reasonable fees and expenses of counsel to the Initial Purchasers
acting in connection therewith and (viii) the fees and disbursements of the
independent public accountants of the Company and the Subsidiary Guarantors,
including the expenses of any special audits or "cold comfort" letters required
by or incident to such performance and compliance, but excluding fees and
expenses of counsel to the underwriters (other than fees and expenses set forth
in clause (ii) above) or the Holders and underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of Notes by a
Holder.
(b) The Notes provide that if (a) the Exchange Offer
Registration Statement is not filed with the Commission on or prior to the 60th
calendar day following the Closing Date or (b) the Exchange Offer Registration
Statement is not declared effective on or prior to the 150th calendar day
following the Closing Date or the Exchange Offer is not consummated on or prior
to the 180th calendar day following the Closing Date or (c) a Shelf Registration
17
Statement is not declared effective when required, the Company shall pay
liquidated damages ("Liquidated Damages") to each Holder of Notes with respect
to the first 30-day period following the 60-day period referred to in clause (a)
above or the first 90-day period following the periods referred to in clauses
(b) or (c) above in an amount equal to $0.05 per week per $1,000 principal
amount of Notes held by such Holder. The amount of Liquidated Damages
shall increase by an additional $0.05 per week per $1,000 principal amount of
Notes at the beginning of each subsequent 30-day period in the case of clause
(a) above or 90-day period in the case of clauses (b) or (c) above, up to a
maximum amount of Liquidated Damages of $0.30 per week per $1,000 principal
amount of Notes. Upon the filing of the Exchange Offer Registration Statement,
the effectiveness of the Exchange Offer Registration Statement, the consummation
of the Exchange Offer or the effectiveness of a Shelf Registration Statement, as
the case may be, Liquidated Damages shall cease to accrue from the date of such
filing, consummation or effectiveness, as the case may be; provided, however,
that, if after the date such Liquidated Damages cease to accrue, a different
event specified in clause (a), (b) or (c) above occurs, Liquidated Damages may
again commence accruing pursuant to the foregoing provisions.
(c) Without limiting the remedies available to the Initial
Purchasers and the Holders, the Company and the Subsidiary Guarantors
acknowledge that any failure by the Company and the Subsidiary Guarantors to
comply with their respective obligations under Sections 2 and 3 hereof may
result in material irreparable injury to the Initial Purchasers or the Holders
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Company's and the Subsidiary Guarantors'
obligations under Sections 2 and 3 hereof.
6. Indemnification and Contribution. (a) In connection with
any Registration Statement, the Company and each Subsidiary Guarantor jointly
and severally agree to indemnify and hold harmless each Holder of Notes covered
thereby (including the Initial Purchasers and, with respect to any Prospectus
delivery as contemplated by Sections 2(e) and 4(h) hereof, each Exchanging
Dealer) the directors, officers, employees and agents of such Holder and each
person who controls such Holder within the meaning of either the Securities Act
or the Exchange Act, against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
such Registration Statement as originally filed or in any amendment thereof, or
in any preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
18
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage or liability (or action in respect
thereof); provided, however, that the Company and each Subsidiary Guarantor will
not be liable in any case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any such indemnified party
specifically for inclusion therein; provided further, however, that the Company
and each Subsidiary Guarantor will not be liable in any case with respect to any
untrue statement or omission or alleged untrue statement or omission made in any
preliminary Prospectus or Prospectus, or in any amendment thereof or supplement
thereto to the extent that any such loss, claim, damage or liability (or action
in respect thereof) resulted from the fact that any indemnified party sold Notes
or Exchange Notes to a person to whom there was not sent or given, at or prior
to the written confirmation of such sale, a copy of the Prospectus as then
amended or supplemented, if the Company had previously complied with the
provisions of Section 4(c)(2) and 4(f) or 4(h) hereof and if the untrue
statement contained in or omission from such preliminary Prospectus or
Prospectus was corrected in the Prospectus as then amended or supplemented. This
indemnity agreement will be in addition to any liability that the Company or any
Subsidiary Guarantor may otherwise have.
The Company and each Subsidiary Guarantor also agree jointly
and severally to indemnify or contribute to Losses of, as provided in Section
6(d) hereof, any underwriters of Notes registered under a Shelf Registration
Statement, their employees, officers, directors and agents and each person who
controls such underwriters on the same basis as that of the indemnification of
the Initial Purchasers and the selling Holders provided in this Section 6(a) and
shall, if requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 4(q) hereof.
(b) Each Holder of Notes covered by a Registration Statement
(including each Initial Purchaser and, with respect to any Prospectus delivery
as contemplated by Sections 2(e) and 4(h) hereof, each Exchanging Dealer)
severally (with respect to each of the Holders (other than the Initial
Purchasers)) and jointly and severally (with respect to the Initial Purchasers)
agrees to indemnify and hold harmless (i) the Company and each Subsidiary
Guarantor, (ii) each of the directors of the Company and each Subsidiary
Guarantor, (iii) each of the officers of the Company and the Subsidiary
Guarantors who signs such Registration Statement and (iv) each Person who
controls the Company or any Subsidiary Guarantor within the meaning of either
the Securities Act or the Exchange Act to the same extent as the foregoing
indemnity from the Company and each Subsidiary Guarantor to each such Holder,
but only with respect to written information furnished to the Company by or on
behalf of such Holder specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to any
liability that any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of
19
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve the
indemnifying party from liability under paragraph (a) or (b) above unless and to
the extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses, and
(ii) will not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel (including local counsel) of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel (and local counsel) if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants in,
or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to the
indemnifying party and the indemnifying party shall not have appointed separate
counsel reasonably acceptable to the indemnified party to represent the
indemnified party, (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. It is understood that
the indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed
within a reasonable time after they are incurred and billed but in no event to
exceed forty-five days after such date, provided that reasonable supporting
documentation is furnished to the indemnified party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this
20
Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending the same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Initial Placement and the
Registration Statement that resulted in such Losses; provided, however, that in
no case shall any Initial Purchaser or any subsequent Holder of any Note or
Exchange Note be responsible, in the aggregate, for any amount in excess of the
purchase discount or commission applicable to such Note, or in the case of an
Exchange Note, applicable to the Note that was exchangeable into such Exchange
Note, as set forth on the cover page of the Final Memorandum, nor shall any
underwriter be responsible for any amount in excess of the underwriting discount
or commission applicable to the Notes purchased by such underwriter under the
Registration Statement that resulted in such Losses. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company and the Subsidiary Guarantors shall be deemed
to be equal to the sum of (x) the total net proceeds from the Initial Placement
(before deducting expenses) as set forth on the cover page of the Final
Memorandum and (y) the total amount of additional interest (such interest
accruing 180 days following the Closing Date) that the Company was not required
to pay as a result of registering the Notes covered by the Registration
Statement that resulted in such losses. Benefits received by the Initial
Purchasers shall be deemed to be equal to the total purchase discounts and
commissions as set forth on the cover page of the Final Memorandum, and benefits
received by any other Holders shall be deemed to be equal to the value of
receiving Notes or Exchange Notes, as applicable, registered under the
Securities Act. Benefits received by any underwriter shall be deemed to be equal
to the total underwriting discounts and commissions, as set forth on the cover
page of the Prospectus forming a part of the Registration Statement that
resulted in such Losses. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information provided
by the indemnifying party, on the one hand, or by the indemnified party, on the
other hand. The parties agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation that did not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 6,
each person who controls a Holder within the meaning of either the Securities
Act or the Exchange Act and each director, officer, employee and agent of such
Holder shall have the same rights to contribution as such
21
Holder, and each person who controls the Company or any Subsidiary
Guarantor within the meaning of either the Securities Act or the Exchange Act,
each officer of the Company or any Subsidiary Guarantor who shall have signed
the Registration Statement and each director of the Company and each Subsidiary
Guarantor shall have the same rights to contribution as the Company and each
Subsidiary Guarantor, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder
or the Company or any Subsidiary Guarantor or any of the officers, directors or
controlling persons referred to in Section 6 hereof, and will survive the sale
by a Holder of Notes covered by a Registration Statement.
7. Miscellaneous.
(a) No Inconsistent Agreement. The Company and the Subsidiary
Guarantors have not, as of the date hereof, entered into, nor shall any of them,
on or after the date hereof, enter into, any agreement that conflicts with the
rights granted to the Holders herein or otherwise conflicts with the provisions
hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Holders of at least a majority of the then outstanding aggregate
principal amount of Notes (or, after the consummation of any Exchange Offer in
accordance with Section 2 hereof, of Exchange Notes); provided that, with
respect to any matter that directly or indirectly affects the rights of the
Initial Purchasers hereunder, the Company shall obtain the written consent of
the Initial Purchasers. Notwithstanding the foregoing (except the foregoing
proviso), a waiver or consent to departure from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
Notes are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given by the
Majority Holders, determined on the basis of Notes being sold rather than
registered under such Registration Statement.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
7(c), which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar under the Indenture,
with a copy in like manner to NationsBanc Montgomery Securities LLC;
23
(ii) if to the Initial Purchasers, at NationsBanc Montgomery
Securities LLC, 767 Fifth Avenue, Floor 12A, New York, New York 10153,
Attention: David Stith; and
(iii) if to the Company or any Subsidiary Guarantor, InSight
Health Services Corp., 4400 MacArthur Boulevard, Suite 800, Newport
Beach, California 92660, Attention: General Counsel.
All such notices and communications shall be deemed to have
been duly given when received. The Initial Purchasers, on the one hand, or the
Company or any Subsidiary Guarantor, on the other, by notice to the other party
or parties may designate additional or different addresses for subsequent
notices or communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company or any Subsidiary Guarantor thereto, subsequent Holders of Notes
and/or Exchange Notes. The Company and the Subsidiary Guarantors hereby agree to
extend the benefits of this Agreement to any Holder of Notes and/or Exchange
Notes and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
(e) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same Agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) Notes Held by the Company, Etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Notes or
Exchange Notes is required
24
hereunder, Notes or Exchange Notes, as applicable,
held by the Company or its Affiliates (other than subsequent Holders of Notes or
Exchange Notes if such subsequent Holders are deemed to be Affiliates solely by
reason of their holdings of such Notes or Exchange Notes) shall not be counted
in determining whether such consent or approval was given by the Holders of such
required percentage.
25
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Subsidiary Guarantors and you.
Very truly yours,
INSIGHT HEALTH SERVICES CORP.
By:
Name:
Title:
INSIGHT HEALTH CORP.
By:
Name:
Title:
RADIOLOGY SERVICES CORP.
By:
Name:
Title:
OPEN MRI, INC.
By:
Name:
Title:
MAXUM HEALTH CORP.
By:
Name:
Title:
SIGNAL MEDICAL SERVICES, INC.
26
By:
Name:
Title:
QUEST FINANCIAL SERVICES, INC.
By:
Name:
Title:
RADIOSURGERY CENTERS, INC.
By:
Name:
Title:
MAXUM HEALTH SERVICES CORP.
By:
Name:
Title:
MTS ENTERPRISES, INC.
By:
Name:
Title:
DIAGNOSTEMPS, INC.
By:
Name:
27
Title:
MAXUM HEALTH SERVICES OF
NORTH TEXAS, INC.
By:
Name:
Title:
MAXUM HEALTH SERVICES OF
ARLINGTON, INC.
By:
Name:
Title:
MAXUM HEALTH SERVICES OF DALLAS, INC.
By:
Name:
Title:
NDDC, INC.
By:
Name:
Title:
DIAGNOSTIC SOLUTIONS CORP.
By:
Name:
Title:
28
MISSISSIPPI MOBILE TECHNOLOGY, INC.
By:
Name:
Title:
The foregoing Agreement is hereby
accepted as of the date first above written.
NATIONSBANC MONTGOMERY SECURITIES LLC
By:
Name:
Title:
MORGAN STANLEY & CO. INCORPORATED
By:
Name:
Title:
SUTRO & CO. INCORPORATED
By:
Name:
Title:
29
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter
of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities. The Company
has agreed that, starting on the Expiration Date (as defined herein) and
ending on the close of business one year after the Expiration Date, it will
make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
30
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account
in exchange for Notes, where such Notes were acquired by such broker-dealer
as a result of market-making activities or other trading activities, must
acknowledge that it will deliver a prospectus in connection with any resale
of such Exchange Notes. See "Plan of Distribution."
31
ANNEX C
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Notes received
in exchange for Notes where such Notes were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that, starting on the Expiration Date and ending on the close of business one
year after the Expiration Date, it will make this Prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any
such resale. In addition, until such date all dealers effecting transactions
in the Exchange Notes may be required to deliver a prospectus.
ANNEX D
If the undersigned is a broker-dealer that will receive Exchange
Notes for its own account in exchange for Notes, it represents that the Notes
to be exchanged for the Exchange Notes were acquired by it as a result of
market-making activities or other trading activities and acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange
Notes; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act.