Exhibit 4.7


 


Execution Copy


 


 


$25,000,000


 


9-7/8% Senior Subordinated Notes due 2011


 


 


REGISTRATION RIGHTS AGREEMENT


 


dated as of March 8, 2004


by and among


 


 


InSight Health Services Corp.,


 


InSight Health Services Holdings Corp.,


 


The Subsidiary Guarantors listed in Schedule
A hereto


 


-and-


 


Banc of America Securities LLC


 

















 


This
Registration Rights Agreement (this “Agreement”) is made and entered into as of
March 8, 2004, by and among InSight Health Services Corp., a Delaware
corporation (the “Company”), InSight Health Services Holdings
Corp., a Delaware corporation (“Holdings”),
the subsidiaries of the Company listed in Schedule A herein (the “Subsidiary Guarantors,” and, together
with Holdings, the “Guarantors”) and Banc of America Securities LLC
(the “Purchaser”). The
Company is offering and selling to the Purchaser the Company’s 9-7/8% Senior
Subordinated Notes due 2011 (the “Notes”) pursuant to the Purchase Agreement,
dated February 26, 2004 (the “Purchase
Agreement”), by
and among the Company, the Guarantors and the Purchaser.


 


Capitalized terms used herein and not otherwise
defined herein shall have the meaning assigned to them under the indenture
dated as of October 30, 2001 among the Company, the Guarantors named therein
and U.S. Bank Trust National Association (successor to State Street Bank and
Trust Company, N.A.), as trustee (the “Trustee”), as amended and supplemented
by a First Supplemental Indenture dated as of February 25, 2002 and a Second
Supplemental Indenture dated as of April 2, 2003 (as amended and supplemented,
the “Existing Indenture”) and as further supplemented pursuant to a Third
Supplemental Indenture dated the date hereof (together with the Existing
Indenture, the “Indenture”) relating to the Notes and the Exchange Notes (as defined
below).


 


The parties hereby agree as follows:


 


Section
1.  Definitions.  As used in this Agreement, the following
capitalized terms shall have the following meanings:


 


Act:  The Securities Act of 1933, as amended.


 


Affiliate:  As defined in Rule 144 under the Act.


 


Broker-Dealer:  Any broker or dealer registered under the
Exchange Act.


 


Certificated Securities:  Definitive Notes, as defined in the
Indenture.


 


Closing Date:  The date hereof.


 


Commission:  The Securities and Exchange Commission.


 


Consummate:  An Exchange Offer shall be deemed
“Consummated” for purposes of this Agreement upon the occurrence of (a) the
filing and effectiveness under the Act of the Exchange Offer Registration
Statement relating to the Exchange Notes to be issued in the Exchange Offer,
(b) the maintenance of such Exchange Offer Registration Statement continuously
effective and the keeping of the Exchange Offer open for a period not less than
the period required pursuant to Section 3(b) hereof and (c) the delivery by the
Company to the Registrar under the Indenture of Exchange Notes in the same
aggregate principal amount as the aggregate principal amount of Notes tendered
by Holders thereof pursuant to the Exchange Offer.


 


Consummation Deadline:  As defined in Section 3(b) hereof.


 


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Effectiveness Deadline:  As defined in Sections 3(a) and 4(a) hereof.


 


Exchange Act:  The Securities Exchange Act of 1934, as
amended.


 


Exchange Notes:  The Company’s 9-7/8% Senior Subordinated Notes
due 2011 to be issued pursuant to the Indenture:  (i) in the Exchange Offer or (ii) as contemplated by Section 4
hereof.


 


Exchange Offer:  The exchange and issuance by the Company of
a principal amount of Exchange Notes (which shall be registered pursuant to the
Exchange Offer Registration Statement) equal to the outstanding principal
amount of Notes that are tendered by such Holders in connection with such
exchange and issuance.


 


Exchange Offer Registration Statement:  The Registration Statement relating to the
Exchange Offer, including the related Prospectus.


 


Exempt Resales:  The transactions in which the Purchaser
proposes to sell the Notes to certain “qualified institutional buyers,” as such
term is defined in Rule 144A under the Act and pursuant to Regulation S under
the Act.


 


Filing Deadline:  As defined in Sections 3(a) and 4(a) hereof.


 


Holders:  As defined in Section 2 hereof.


 


Prospectus:  The prospectus included in a Registration
Statement at the time such Registration Statement is declared effective, as
amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.


 


Recommencement Date:  As defined in Section 6(d) hereof.


 


Registration Default:  As defined in Section 5 hereof.


 


Registration Statement:  Any registration statement of the Company
and the Guarantors relating to (a) an offering of Exchange Notes pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, in each case, (i) that
is filed pursuant to the provisions of this Agreement and (ii) including the
Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.


 


Regulation S:  Regulation S promulgated under the Act.


 


Rule 144:  Rule 144 promulgated under the Act.


 


Shelf Registration Statement:  As defined in Section 4 hereof.


 


Suspension Notice:  As defined in Section 6(d) hereof.


 


TIA:  The Trust Indenture Act of 1939 as in effect
on the date of the Indenture.


 


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Transfer Restricted Securities:  Each (A) Note, until the earliest to occur
of (i) the date on which such Note is exchanged in the Exchange Offer for an
Exchange Note which is entitled to be resold to the public by the Holder
thereof without complying with the prospectus delivery requirements of the Act,
(ii) the date on which such Note has been disposed of in accordance with a
Shelf Registration Statement (and the purchasers thereof have been issued
Exchange Notes) or (iii) the date on which such Note is distributed to the
public pursuant to Rule 144 under the Act or is saleable pursuant to Rule
144(k) under the Act (or similar provisions then in effect) and (B) Exchange
Note held by a Broker-Dealer until the date on which such Exchange Note is
disposed of by a Broker-Dealer pursuant to the “Plan of Distribution”
contemplated by the Exchange Offer Registration Statement (including the
delivery of the Prospectus contained therein).


 


Section
2.  Holders.  A Person is deemed to be a holder of
Transfer Restricted Securities (each, a “Holder”) whenever such Person owns Transfer Restricted Securities.


 


Section
3.  Registered Exchange Offer.  (a) 
Unless the Exchange Offer shall not be permitted by applicable federal
law (after the procedures set forth in Section 6(a)(i) below have been complied
with), the Company and the Guarantors shall (i) cause the Exchange Offer
Registration Statement to be filed with the Commission as soon as practicable
after the Closing Date, but in no event later than 240 days after the Closing
Date (such 240th day being the “Filing Deadline”), (ii) use its best efforts to cause such Exchange Offer
Registration Statement to become effective at the earliest possible time, but
in no event later than 300 days after the Closing Date (such 300th
day being the “Effectiveness Deadline”)
and (iii) in connection with the foregoing, (A) file all pre-effective
amendments to such Exchange Offer Registration Statement as may be necessary in
order to cause it to become effective, (B) file, if applicable, a
post-effective amendment to such Exchange Offer Registration Statement pursuant
to Rule 430A under the Act and (C) cause all necessary filings, if any, in
connection with the registration and qualification of the Exchange Notes to be
made under the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) upon the effectiveness of such
Exchange Offer Registration Statement, commence and Consummate the Exchange
Offer.  The Exchange Offer shall be on
the appropriate form permitting (i) registration of the Exchange Notes to be
offered in exchange for the Notes that are Transfer Restricted Securities and
(ii) resales of Exchange Notes by any Broker-Dealer that tendered Notes into
the Exchange Offer that such Broker-Dealer acquired for its own account as a
result of market making activities or other trading activities (other than
Notes acquired directly from the Company or any of their respective Affiliates)
as contemplated by Section 3(c) below.


 


(b)           The Company and the
Guarantors shall use their respective reasonable best efforts to cause the
Exchange Offer Registration Statement to be effective continuously, and shall
keep the Exchange Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however,
that in no event shall such period be less than 30 days.  The Company and the Guarantors shall cause
the Exchange Offer to comply with all applicable federal and state securities
laws.  No securities other than the Exchange
Notes shall be included in the Exchange Offer Registration Statement.  The Company and the Guarantors shall use
their respective reasonable best efforts to cause the Exchange Offer to be
Consummated on the earliest practicable date after the Exchange Offer
Registration Statement has become effective, but in no


 


4

















 


event later than 45 days
thereafter, and in no event shall such Exchange Offer be Consummated later than
330 days after the Closing Date  (such
330th day being the “Consummation Deadline”).


 


(c)           The Company shall
include a “Plan of Distribution” section in the Prospectus contained in the
Exchange Offer Registration Statement and indicate therein that any
Broker-Dealer who holds Transfer Restricted Securities that were acquired for
the account of such Broker-Dealer as a result of market-making activities or
other trading activities (other than Notes acquired directly from the Company
or any of their respective Affiliates), may exchange such Transfer Restricted
Securities pursuant to the Exchange Offer. 
Such “Plan of Distribution” section shall also contain all other
information with respect to such sales by such Broker-Dealers that the
Commission may require in order to permit such sales pursuant thereto, but such
“Plan of Distribution” shall not name any such Broker-Dealer or disclose the
amount of Transfer Restricted Securities held by any such Broker-Dealer, except
to the extent required by the Commission as a result of a change in policy, rules
or regulations after the date of this Agreement.  See the Shearman & Sterling no-action letter
(available July 2, 1993).


 


Because any such Broker-Dealer may be deemed to be an
“underwriter” within the meaning of the Act and must, therefore, deliver a prospectus
meeting the requirements of the Act in connection with its initial sale of any
Exchange Notes received by such Broker-Dealer in the Exchange Offer, the
Company and the Guarantors shall permit the use of the Prospectus contained in
the Exchange Offer Registration Statement by such Broker-Dealer to satisfy such
prospectus delivery requirement through the Consummation Deadline and
thereafter as provided in the remainder of this paragraph.  To the extent necessary to ensure that the
prospectus contained in the Exchange Offer Registration Statement is available
for sales of Exchange Notes by any Broker-Dealer that acquired Exchange Notes
as a result of market-making or similar activities such that the Broker-Dealer
would be required to deliver a prospectus under the Act upon a subsequent sale
or other disposition of the Exchange Notes, then the Company and the Guarantors
agree to use their respective reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented, amended and
current as required by and subject to the provisions of Section 6(a) and (c)
hereof and in conformity with the requirements of this Agreement, the Act and
the policies, rules and regulations of the Commission as announced from time to
time, for a period of 180 days (as extended pursuant to Section 6(d)(i))
from the Consummation Deadline or such shorter period as will terminate when
all Transfer Restricted Securities covered by such Registration Statement have
been sold pursuant thereto if any such Broker-Dealer desiring such action shall
notify the Company in writing that such Broker-Dealer acquired Exchange Notes
as a result of market-making or other similar activities such that the
Broker-Dealer would be required to deliver a prospectus under the Act upon a
subsequent sale or other disposition of the Exchange Notes.  The Company and the Guarantors shall provide
copies of the latest version of such Prospectus to such Broker-Dealers, in such
number as such Broker-Dealers may reasonably request promptly upon such
request, and in no event later than two Business Days after the date of such
request, at any time during such period.


 


Section
4.  Shelf Registration.  (a) 
If (i) the Exchange Offer is not permitted by applicable law (after the
Company and the Guarantors have complied with the procedures set forth in
Section 6(a)(i) below) or (ii) any Holder of Transfer Restricted Securities
shall notify the


 


5

















 


Company in writing within 30
days following the Consummation Deadline that (A) such Holder was prohibited by
law or Commission policy from participating in the Exchange Offer or (B) such
Holder may not resell the Exchange Notes acquired by it in the Exchange Offer
to the public without delivering a prospectus and the Prospectus contained in
the Exchange Offer Registration Statement is not appropriate or available for
such resales by such Holder or (C) such Holder is a Broker-Dealer and holds
Notes acquired directly from the Company or any of their Affiliates, or (iii)
the Exchange Offer has not been Consummated on or prior to the Consummation
Deadline, then the Company and the Guarantors shall:  (x) cause to be filed, on or prior to 45 days after the earliest
of (i) the date on which the Company determines that the Exchange Offer
Registration Statement cannot be filed as a result of clause (a)(i) above, (ii)
the date on which the Company receives the notice specified in clause (a)(ii)
above, or (iii) if the Exchange Offer has not been consummated on or prior to
the Consummation Deadline, the Consummation Deadline (such earliest date, the “Filing
Deadline”), a shelf
registration statement pursuant to Rule 415 under the Act (which may be an
amendment to the Exchange Offer Registration Statement (the “Shelf
Registration Statement”)),
relating to all Transfer Restricted Securities, and (y) shall use their
respective best efforts to cause such Shelf Registration Statement to become
effective on or prior to 90 days after the Filing Deadline for the Shelf Registration
Statement (such 90th day the “Effectiveness Deadline”).


 


If, after the Company and the Guarantors filed an
Exchange Offer Registration Statement that satisfies the requirements of
Section 3(a) above, the Company and the Guarantors are required to file and
make effective a Shelf Registration Statement solely because the Exchange Offer
is not permitted under applicable federal law (i.e., clause (a)(i) above), then
the filing of the Exchange Offer Registration Statement shall be deemed to
satisfy the requirements of clause (x) above; provided
that, in such event, the Company and the Guarantors shall remain obligated to
use best efforts to meet the Effectiveness Deadline set forth in clause (y).


 


To the extent necessary to ensure that the Shelf Registration
Statement is available for sales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 4(a) and the other
securities required to be registered therein pursuant to Section 6(b)(ii)
hereof, the Company and the Guarantors shall use their respective best efforts
to keep any Shelf Registration Statement required by this Section 4(a)
continuously effective, supplemented, amended and current as required by and
subject to the provisions of Sections 6(b) and (c) hereof and in conformity
with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of
at least two years (as extended pursuant to Section 6(c)(i)) following the Closing
Date, or such shorter period as will terminate when all Transfer Restricted
Securities covered by such Shelf Registration Statement have been sold pursuant
thereto.


 


(b)           Provision by Holders
of Certain Information in Connection with the Shelf Registration Statement.  No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as applicable, of
the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein.  No Holder of Transfer Restricted Securities
shall be entitled to liquidated damages pursuant to Section 5 hereof unless and
until such Holder shall


 


6

















 


have provided all such
information.  Each selling Holder agrees
to promptly furnish additional information required to be disclosed in order to
make the information previously furnished to the Company by such Holder not
materially misleading.  The Company
shall not be obligated to supplement such Shelf Registration Statement after it
has been declared effective by the Commission more than one time per quarterly
period solely to reflect additional Holders.


 


Section
5.  Liquidated Damages.  If (i) the Exchange Offer Registration
Statement required by this Agreement is not filed with the Commission on or
prior to the Filing Deadline, (ii) such Exchange Offer Registration Statement
has not been declared effective by the Commission on or prior to the
Effectiveness Deadline or the Exchange Offer has not been Consummated on or
prior to the Consummation Deadline or (iii) a Shelf Registration Statement has
not been declared effective on or prior to the Effectiveness Deadline (each
such event referred to in clauses (i) through (iii), a “Registration Default”), then
the Company will pay to each Holder of Transfer Restricted Securities affected
thereby liquidated damages in an amount equal to $.05 per week per $1,000 in
principal amount of Transfer Restricted Securities held by such Holder for each
week or portion thereof that the Registration Default continues for the first
30-day period immediately following the occurrence of a Registration Default
referred to in clause (i) above or for the first 90-day period following the
occurrence of a Registration Default referred to in clauses (ii) and (iii)
above.  The amount of the liquidated
damages shall increase by an additional $.05 per week per $1,000 in principal
amount of Transfer Restricted Securities with respect to each subsequent 30-day
period in the case of clause (i) above or 90-day period in the case of clauses
(ii) or (iii) above until all Registration Defaults have been cured, up to a
maximum amount of liquidated damages of $.30 per week per $1,000 in principal
amount of Transfer Restricted Securities. 
Notwithstanding anything to the contrary set forth herein, (1) upon
filing of the Exchange Offer Registration Statement, in the case of (i) above,
(2) upon the effectiveness of the Exchange Offer Registration Statement and the
Consummation of the Exchange Offer, in the case of (ii) above or (3) upon
effectiveness of the Shelf Registration Statement, in the case of (iii) above,
as applicable, the liquidated damages payable with respect to the Transfer
Restricted Securities as a result of such clause (i), (ii) or (iii), as applicable,
shall cease.


 


All accrued liquidated damages shall be paid to the
Holders entitled thereto, in the manner provided for the payment of interest in
the Indenture, on each Interest Payment Date, as more fully set forth in the
Indenture and the Notes.  Notwithstanding
the fact that any securities for which liquidated damages are due cease to be
Transfer Restricted Securities, all obligations of the Company and the
Guarantors to pay accrued liquidated damages with respect to such securities
shall survive until such time as such obligations with respect to such
securities shall have been satisfied in full.


 


Section
6.  Registration Procedures.  (a)  Exchange
Offer Registration Statement.  In
connection with the Exchange Offer, the Company and the Guarantors shall (x)
comply with all applicable provisions of Section 6(c) below, (y) use their
respective reasonable best efforts to effect such exchange and to permit the
resale of Exchange Notes by any Broker-Dealer that tendered in the Exchange
Offer Notes that such Broker-Dealer acquired for its own account as a result of
its market making activities or other trading activities (other than Notes
acquired directly from the Company or any of their Affiliates) being sold in
accordance with the intended method or methods of distribution thereof, and (z)
comply with all of the following provisions:


 


7

















 


(i)            If,
following the date hereof there has been announced a change in Commission
policy with respect to exchange offers such as the Exchange Offer, that in the
reasonable opinion of counsel to the Company raises a substantial question as
to whether the Exchange Offer is permitted by applicable federal law, the
Company and the Guarantors hereby agree to seek a no-action letter or other
favorable decision from the Commission allowing the Company and the Guarantors
to Consummate an Exchange Offer for such Transfer Restricted Securities.  The Company and the Guarantors hereby agree
to pursue the issuance of such a decision to the Commission staff level, but
shall not be required to take commercially unreasonable action to effect a
change of Commission policy.  In
connection with the foregoing, the Company and the Guarantors hereby agree to take
all such other actions as may be requested by the Commission or otherwise
reasonably required in connection with the issuance of such decision, including
without limitation (A) participating in telephonic conferences with the
Commission, (B) delivering to the Commission staff an analysis prepared by
counsel to the Company setting forth the legal bases, if any, upon which such
counsel has concluded that such an Exchange Offer should be permitted and (C)
diligently pursuing a resolution (which need not be favorable) by the
Commission staff.


 


(ii)           As
a condition to its participation in the Exchange Offer, each Holder of Transfer
Restricted Securities (including, without limitation, any Holder who is a
Broker-Dealer) shall furnish, upon the request of the Company, prior to the
Consummation of the Exchange Offer, a written representation to the Company and
the Guarantors (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the effect that
(A) it is not an Affiliate of the Company, (B) it is not engaged in,
and does not intend to engage in, and has no arrangement or understanding with
any person to participate in, a distribution of the Exchange Notes to be issued
in the Exchange Offer and (C) it is acquiring the Exchange Notes in its ordinary
course of business.  As a condition to
its participation in the Exchange Offer each Holder using the Exchange Offer to
participate in a distribution of the Exchange Notes shall acknowledge and agree
that if the resales are of Exchange Notes obtained by such Holder in exchange
for Notes acquired directly from the Company or an Affiliate thereof, it (1)
could not, under Commission policy as in effect on the date of this Agreement,
rely on the position of the Commission enunciated in Morgan Stanley and Co.,
Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the Commission’s letter to Shearman
& Sterling dated July 2, 1993, and similar no-action letters
(including, if applicable, any no-action letter obtained pursuant to clause (i)
above), and (2) must comply with the registration and prospectus delivery
requirements of the Act in connection with a secondary resale transaction and
that such a secondary resale transaction must be covered by an effective
registration statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K.


 


(iii)          Prior
to effectiveness of the Exchange Offer Registration Statement, the Company and
the Guarantors shall provide a supplemental letter to the Commission (A)
stating that the Company and the Guarantors are registering the Exchange Offer
in reliance on the position of the Commission enunciated in Exxon Capital
Holdings Corporation (available May 13, 1988), Morgan Stanley and
Co., Inc. (available June 5, 1991)


 


8

















 


as interpreted
in the Commission’s letter to Shearman & Sterling dated July 2,
1993, and, if applicable, any no-action letter obtained pursuant to clause (i)
above, (B) including a representation that neither the Company nor any
Guarantor has entered into any arrangement or understanding with any Person to
distribute the Exchange Notes to be received in the Exchange Offer and that, to
the best of the Company’s and each Guarantor’s information and belief, each
Holder participating in the Exchange Offer is acquiring the Exchange Notes in
its ordinary course of business and has no arrangement or understanding with
any Person to participate in the distribution of the Exchange Notes received in
the Exchange Offer and (C) any other undertaking or representation required by
the Commission as set forth in any no-action letter obtained pursuant to clause
(i) above, if applicable.


 


(b)           Shelf Registration
Statement.  In connection with the
Shelf Registration Statement, the Company and the Guarantors shall:


 


(i)            comply
with all the provisions of Section 6(c) below and use their respective
reasonable best efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof (as indicated in the information
furnished to the Company pursuant to Section 4(b) hereof), and pursuant thereto
the Company and the Guarantors will prepare and file with the Commission a
Registration Statement relating to the registration on any appropriate form
under the Act, which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or methods of
distribution thereof within the time periods and otherwise in accordance with
the provisions hereof, and


 


(ii)           issue,
upon the request of any Holder or purchaser of Notes covered by any Shelf
Registration Statement contemplated by this Agreement, Exchange Notes having an
aggregate principal amount equal to the aggregate principal amount of Notes
sold pursuant to the Shelf Registration Statement and surrendered to the
Company for cancellation; the Company shall register Exchange Notes on the
Shelf Registration Statement for this purpose and issue the Exchange Notes to
the purchaser(s) of securities subject to the Shelf Registration Statement in
the names as such purchaser(s) shall designate.


 


(c)           General Provisions.  In connection with any Registration
Statement and any related Prospectus required by this Agreement, the Company
and the Guarantors shall:


 


(i)            use
their respective reasonable best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for the
period specified in Section 3 or 4 of this Agreement, as applicable.  Upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained therein (A)
to contain an untrue statement of 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 or (B) not to be effective and
usable for resale of Transfer Restricted Securities during the period required
by this Agreement, the Company and the Guarantors shall file promptly an
appropriate amendment to such


 


9

















 


Registration
Statement curing such defect, and, if Commission review is required, use their
respective reasonable best efforts to cause such amendment to be declared
effective as soon as practicable.


 


(ii)           prepare
and file with the Commission such amendments and post-effective amendments to
the applicable Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period set forth in Section
3 or 4 hereof, as the case may be; cause the Prospectus to be supplemented by
any required Prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 under the Act, and to comply fully with Rules 424, 430A and
462, as applicable, under the Act in a timely manner; and comply with the
provisions of the Act with respect to the disposition of all securities covered
by such Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof set forth
in such Registration Statement or supplement to the Prospectus;


 


(iii)          with
respect to a Shelf Registration Statement, advise each selling Holder promptly
and, if requested by such selling Holder, confirm such advice in writing, (A)
when the Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to any applicable Registration Statement or
any post-effective amendment thereto, when the same has become effective, (B)
of any request by the Commission for amendments to the Registration Statement
or amendments or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the Act or of
the suspension by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any statement of
a material fact made in the Registration Statement, the Prospectus, any amendment
or supplement thereto or any document incorporated by reference therein untrue,
or that requires the making of any additions to or changes in the Registration
Statement in order to make the statements therein not misleading, or that
requires the making of any additions to or changes in the Prospectus in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.  If at
any time the Commission shall issue any stop order suspending the effectiveness
of the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities under state
securities or Blue Sky laws, the Company and the Guarantors shall use their
respective reasonable best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time;


 


(iv)          subject
to Section 6(c)(i), if any fact or event contemplated by Section 6(c)(iii)(D)
above shall exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of Transfer Restricted Securities,
the Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact


 


10

















 


necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading;


 


(v)           furnish
to the Purchaser and, with respect to a Shelf Registration Statement, each
selling Holder named in any Registration Statement or Prospectus in connection
with such exchange or sale, if any, before filing with the Commission, copies
of any Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or Prospectus
(including all documents incorporated by reference after the initial filing of
such Registration Statement), which documents will be subject to the review and
comment of such Holders in connection with such sale, if any, for a period of
at least five Business Days, and the Company will not file any such
Registration Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such documents incorporated
by reference) to which such Holders shall reasonably object within five
Business Days after the receipt thereof. 
A Holder shall be deemed to have reasonably objected to such filing if
such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains an untrue statement of a material
fact or omits to state any material fact necessary to make the statements
therein (in light of the circumstances under which they were made) not
misleading or fails to comply with the applicable requirements of the Act;


 


(vi)          with
respect to a Shelf Registration Statement, promptly prior to the filing of any
document that is to be incorporated by reference into a Registration Statement
or Prospectus, provide copies of such document to each selling Holder, upon
such selling Holder’s reasonable request, in connection with such exchange or
sale, if any;


 


(vii)         with
respect to a Shelf Registration Statement, subject to appropriate
confidentiality agreements being entered into, make available, at reasonable
times, for inspection by each selling Holder and any attorney or accountant
retained by such Holders, all financial and other records, pertinent corporate
documents of the Company and the Guarantors and cause at reasonable times the
Company’s and the Guarantors’ officers, directors and employees to supply all
information reasonably requested by any such Holder, attorney or accountant at
reasonable times in connection with such Registration Statement or any
post-effective amendment thereto subsequent to the filing thereof and prior to
its effectiveness;


 


(viii)        with
respect to a Shelf Registration Statement, if requested by any selling Holders
in connection with such sale, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if necessary,
such information as such Holders may reasonably request to have included
therein, including, without limitation, information relating to the “Plan of
Distribution” of the Transfer Restricted Securities; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
reasonably practicable after the Company is notified of the matters to be
included in such Prospectus supplement or post-effective amendment;


 


(ix)           with
respect to a Shelf Registration Statement, furnish to each selling Holder in connection
with such exchange or sale, without charge, at least one copy of the


 


11

















 


Registration
Statement, as first filed with the Commission, and of each amendment thereto,
including all documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);


 


(x)            with
respect to a Shelf Registration Statement, deliver to each Holder, without
charge, as many copies of the Prospectus (including each preliminary prospectus)
and any amendment or supplement thereto as such Holder reasonably may request;
the Company and the Guarantors hereby consent to the use (in accordance with
law, rules, regulations and orders) of the Prospectus and any amendment or
supplement thereto by each selling Holder in connection with the public
offering and the sale of the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto;


 


(xi)           upon
the request of any Holders who collectively hold an aggregate principal amount
of Notes in excess of 20% of the outstanding Transfer Restricted Securities
(the “Requesting Holders”) enter into an
underwriting agreement and make such representations and warranties and take
all such other actions in connection therewith as may be reasonable and
customary in underwritten offerings in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any applicable
Registration Statement contemplated by this Agreement as may be reasonably requested
by any Requesting Holder in connection with any sale or resale pursuant to any
applicable Registration Statement.  In
such connection, the Company and the Guarantors shall:


 


(A)          upon
request of any Requesting Holder furnish (or in the case of paragraphs (2) and
(3) below, use their best efforts to cause to be furnished) to each Requesting
Holder, upon Consummation of the Exchange Offer or upon the effectiveness of
the Shelf Registration Statement, as the case may be:


 


(1)           a
certificate, dated such date, signed on behalf of the Company and each
Guarantor by (x) the President or any Vice President and (y) a principal
financial or accounting officer of the Company, and such Guarantor, confirming,
as of the date thereof, the matters set forth in Section 5(e) of the Purchase
Agreement and such other similar matters as such Holders may reasonably
request;


 


(2)           an
opinion, dated the date of Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as the case may be, of
counsel for the Company, covering matters similar to those set forth in
paragraphs (b), (c) and (d) of Section 5 of the Purchase Agreement and Exhibits
A, B and C thereto, subject to the same conditions with respect thereto and to
the delivery thereof and such other matter as such Requesting Holder may
reasonably request which are customarily covered in Company counsel opinions to
underwriters in underwritten public offerings, and in any event including a
statement to the effect that such counsel has participated in conferences with
officers and other representatives of the Company and the Guarantors,
representatives of the independent public accountants for the Company


 


12

















 


and the
Guarantors and have considered the matters required to be stated therein and
the statements contained therein, although such counsel has not independently
verified the accuracy, completeness or fairness of such statements; and that
such counsel advises that, on the basis of the foregoing (relying as to
materiality to the extent such counsel deems appropriate upon the statements of
officers and other representatives of the Company and the Guarantors) and
without independent check or verification), no facts came to such counsel’s attention
that caused such counsel to believe that the applicable Registration Statement,
at the time such Registration Statement or any post-effective amendment thereto
became effective and, in the case of the Exchange Offer Registration Statement,
as of the date of Consummation of the Exchange Offer, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Prospectus contained in such Registration Statement as of its date
and, in the case of the opinion dated the date of Consummation of the Exchange
Offer, as of the date of Consummation, contained an untrue statement of a
material fact or omitted 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.  Without limiting
the foregoing, such counsel may state further that such counsel assumes no responsibility
for, and has not independently verified, the accuracy, completeness or fairness
of the financial statements, notes and schedules and other financial data and
statistical data included in any Registration Statement contemplated by this
Agreement or the related Prospectus; and


 


(3)           customary
comfort letter or letters, as the case may be, as of the date of effectiveness
of the Shelf Registration Statement from the Company’s independent accountants
and from any other accountants which have audited or reviewed the financial
statements of any other entity or entities included or incorporated by
reference in the Registration Statement, in each case, in the customary form
and covering matters of the type customarily covered in comfort letters to
underwriters in connection with underwritten public offerings, delivered
according to Statement of Auditing Standards Nos. 71, 72, 76 and 100 (or any
successor bulletins), with respect to the audited and unaudited financial
statements and other financial information included or incorporated by reference
in the Registration Statement; and


 


(B)           deliver
such other documents and certificates as may be reasonably requested by the
selling Holders to evidence compliance with the matters covered in clause (A)
above and with any customary conditions contained in the any agreement entered
into by the Company and the Guarantors pursuant to this clause (xi);


 


13

















 


(xii)          prior
to any public offering of Transfer Restricted Securities, cooperate with the
selling Holders and their counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the securities or
Blue Sky laws of such jurisdictions as the selling Holders may reasonably
request and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the applicable Registration Statement; provided, however, that neither the
Company nor any Guarantor shall be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that would
subject it to the service of process in suits or to taxation, other than as to
matters and transactions relating to the Registration Statement, in any jurisdiction
where it is not now so subject;


 


(xiii)         in
connection with any sale of Transfer Restricted Securities that will result in
such securities no longer being Transfer Restricted Securities, cooperate with
the Holders to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and to register such Transfer Restricted Securities in
such denominations and such names as the selling Holders may request at least two
Business Days prior to any sale of such Transfer Restricted Securities;


 


(xiv)        use
their respective best efforts to cause the disposition of the Transfer
Restricted Securities covered by the Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof to consummate the disposition
of such Transfer Restricted Securities, subject to the proviso contained in
clause (xii) above;


 


(xv)         provide
a CUSIP number for all Transfer Restricted Securities not later than the
effective date of a Registration Statement covering such Transfer Restricted
Securities and provide the Trustee under the Indenture with certificates for
the Transfer Restricted Securities which are in a form eligible for deposit
with The Depository Trust Company;


 


(xvi)        otherwise
use their respective reasonable best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its
security holders with regard to any applicable Registration Statement, as soon
as practicable, a consolidated earnings statement meeting the requirements of
Rule 158 (which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term is defined
in paragraph (c) of Rule 158 under the Act);


 


(xvii)       cause
the Indenture to be qualified under the TIA not later than the effective date
of the first Registration Statement required by this Agreement and, in connection
therewith, cooperate with the Trustee to effect such changes to the Indenture
as may be required for such Indenture to be so qualified in accordance with the
terms of the TIA; and execute and use its best efforts to cause the Trustee to
execute, all documents that may be required to effect such changes and all
other forms and


 


14

















 


documents
required to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner;


 


(xviii)      provide
promptly to each Holder, upon request, each document filed with the Commission
pursuant to the requirements of Section 13 or Section 15(d) of the Exchange Act
if not obtainable from the Commission; and


 


(xix)         the
Company and the Guarantors will be deemed not to have used their reasonable
best efforts to cause the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, to become, or to remain, effective
during the requisite period if the Company or any of the Guarantors voluntarily
and knowingly takes any action that would, or omits to take any action which
omission would, result in any such Registration Statement not being declared
effective or in the Holders of Registrable Securities covered thereby not being
able to exchange or offer and sell such Registrable Securities during that
period as and to the extent contemplated hereby, unless (i) such action is
required by applicable law or (ii) such action is taken by the Company and the
Guarantors in good faith and for valid business reasons (but not including
avoidance of the Company’s or the Guarantors’, as applicable, obligations
hereunder), including a material corporate transaction, so long as the Company
and the Guarantors promptly comply with the requirements of Section 6(c)(iv)
thereof, if applicable.


 


(d)           Restrictions on
Selling Holders.  With respect to a
Shelf Registration Statement, each selling Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(iii)(C) or any notice from the Company of the existence of any
fact or the happening of any event of the kind described in Section
6(c)(iii)(D) hereof, or upon receipt of a notice from the Company pending the
announcement of a material corporate transaction that the Shelf Registration
Statement is unusable (in each case, a “Suspension
Notice”), such
Holder will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until (i) such selling Holder
has received copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(iv) hereof, or (ii) such selling Holder is advised in writing by
the Company that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated by
reference in the Prospectus (in each case, the “Recommencement Date”).  Each Holder receiving a Suspension Notice
hereby agrees that it will either (i) destroy any Prospectuses, other than permanent
file copies, then in such Holder’s possession which have been replaced by the
Company with more recently dated Prospectuses or (ii) deliver to the Company
(at the Company’s expense) all copies, other than permanent file copies, then
in such Holder’s possession of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of the Suspension
Notice.  The time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4
hereof, as applicable, shall be extended by a number of days equal to the
number of days in the period from and including the date of delivery of the
Suspension Notice to the date of delivery of the Recommencement Date.


 


Section
7.  Registration Expenses.  (a) 
All expenses incident to the Company’s and the Guarantors’ performance
of or compliance with this Agreement will be borne, jointly and severally, by
the Company and the Guarantors, regardless of whether a Registration


 


15

















 


Statement becomes effective,
including without limitation:  (i) all
registration and filing fees and expenses; (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the Exchange
Notes to be issued in the Exchange Offer and printing of Prospectuses),
messenger and delivery services and telephone; (iv) all fees and disbursements
of counsel for the Company and the Guarantors and, subject to Section 7(b)
below, one counsel for the Holders of Transfer Restricted Securities chosen by
the Holders of a majority of the outstanding Transfer Restricted Securities;
(v) all application and filing fees in connection with listing the Exchange Notes
on a national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company and the Guarantors (including the
expenses of any special audit and comfort letters required by or incident to
such performance).


 


The Company will, in any event, bear its and the
Guarantors’ internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expenses of any annual audit and the fees and expenses of any Person,
including special experts, retained by the Company or the Guarantors.


 


(b)           In connection with any
Registration Statement required by this Agreement (including, without
limitation, the Exchange Offer Registration Statement and the Shelf
Registration Statement), the Company and the Guarantors will reimburse the
Purchaser and the Holders of Transfer Restricted Securities who are tendering
Notes into the Exchange Offer and/or selling or reselling Notes or Exchange
Notes pursuant to the “Plan of Distribution” contained in the Exchange Offer
Registration Statement or the Shelf Registration Statement, as applicable, for
the reasonable fees and disbursements of not more than one counsel, who shall
be Shearman & Sterling LLP unless another firm shall be chosen by the
Holders of a majority in principal amount of the Transfer Restricted Securities
for whose benefit such Registration Statement is being prepared.


 


Section 8.  Indemnification.  (a) 
The Company and the Guarantors agree, jointly and severally, to
indemnify and hold harmless each Holder, its directors, officers, any
underwriter in any underwritten public offering of Transfer Restricted
Securities pursuant to a Shelf Registration Statement and each Person, if any,
who controls such Holder or underwriter (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act), from and against (i) any and all
loss, liability, claim, damage and expense whatsoever, as incurred, arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment or supplement
thereto) pursuant to which Transfer Restricted Securities are registered under the
Act, including all documents incorporated therein by reference, or the omission
or alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; (ii) any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim


 


16

















 


whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission,
provided that (subject to Section
8(d) below) any such settlement is effected with the written consent of the
Company and the Guarantors; and (iii) any and all expenses whatsoever, as
incurred (including the fees and disbursements of counsel chosen by any
indemnified party, subject to the limitations in Section 8(c) below),
reasonably incurred in investigating, preparing or defending against any
litigation or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under subparagraph (i) or (ii)
above; provided, however, that this indemnity agreement
shall not apply to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written information
furnished to the Company and the Guarantors by the Purchaser, such Holder or
such underwriter expressly for use in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto); provided, further, that the Company will not be liable to any
Purchaser, Holder (in its capacity as Holder) or underwriter (or any person who
controls such party within the meaning of Section 15 of the Act or Section 20
of the Exchange Act) with respect to any such untrue statement or alleged
untrue statement or omission or alleged omission made in any preliminary
Prospectus to the extent that the Company shall sustain the burden of proving
that any such loss, liability, claim, damage or expense resulted from the fact that
such Purchaser, Holder (in its capacity as Holder) or underwriter, as the case
may be, sold Transfer Restricted Securities to a Person to whom such Purchaser,
Holder (in its capacity as Holder) or underwriter, as the case may be, failed
to send or give, at or prior to the written confirmation of the sale of such
Transfer Restricted Securities a copy of the final Prospectus (as amended or
supplemented) if the Company has previously furnished copies thereof
(sufficiently in advance of the closing of such sale to allow for distribution
of the final Prospectus in a timely manner) to such Purchaser, Holder (in its
capacity as Holder) or underwriter, as the case may be, and the loss,
liability, claim, damage or expense of such Purchaser, Holder (in its capacity
as Holder) or underwriter, as the case may be, resulted solely from an untrue
statement or omission or alleged untrue statement or omission of a material
fact contained in or omitted from such preliminary Prospectus which was
corrected in the final Prospectus.


 


(b)           Each Holder of Transfer
Restricted Securities agrees, severally and not jointly, to indemnify and hold
harmless the Company and the Guarantors, and their respective directors and
officers, and each person, if any, who controls (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) the Company, or the Guarantors
to the same extent as the foregoing indemnity from the Company and the
Guarantors set forth in section (a) above, but only with reference to
information relating to such Holder furnished in writing to the Company by such
Holder expressly for use in any Registration Statement.  In no event shall any Holder, its directors,
officers or any Person who controls such Holder be liable or responsible for
any amount in excess of the amount by which the total amount received by such
Holder with respect to its sale of Transfer Restricted Securities pursuant to a
Registration Statement exceeds (i) the amount paid by such Holder for such
Transfer Restricted Securities and (ii) the amount of any damages that such
Holder, its directors, officers or any Person who controls such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.


 


17

















 


(c)           In case any action
shall be commenced involving any person in respect of which indemnity may be
sought pursuant to Section 8(a) or 8(b) (the “indemnified
party”), the
indemnified party shall promptly notify the person against whom such indemnity
may be sought (the “indemnifying person”) in writing and the indemnifying
party shall assume the defense of such action, including the employment of
counsel reasonably satisfactory to the indemnified party and the payment of all
fees and expenses of such counsel, as incurred (except that in the case of any
action in respect of which indemnity may be sought pursuant to both Sections
8(a) and 8(b), a Holder shall not be required to assume the defense of such
action pursuant to this Section 8(c), but may employ separate counsel and
participate in the defense thereof, but the fees and expenses of such counsel,
except as provided below, shall be at the expense of the Holder).  Any indemnified party shall have the right
to employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party within a
reasonable period of time after notification by the indemnified party or (iii)
the named parties to any such action (including any impleaded parties) include
both the indemnified party and the indemnifying party, and the indemnified
party shall have been advised by such counsel that there may be one or more
legal defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party).  In any such case,
the indemnifying party shall not, in connection with any one action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the fees
and expenses of more than one separate firm of attorneys (in addition to any
local counsel) for all indemnified parties and all such fees and expenses shall
be reimbursed promptly following receipt of invoice therefor as they are
incurred.  Such firm shall be designated
in writing by a majority of the Holders, in the case of the parties indemnified
pursuant to Section 8(a), and by the Company and Guarantors, in the case of
parties indemnified pursuant to Section 8(b). 
The indemnifying party under this Section 8 shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final non-appealable judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment.  Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by Section 8(c) hereof, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received
notice of the final terms of such proposed settlement as soon as practicable
prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. 
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the entry of
judgment in any pending or threatened action, suit or proceeding in respect of
which any indemnified party is or could have been a party and indemnity was or
could have been sought hereunder by such indemnified party, unless such
settlement, compromise or consent includes an unconditional release of such


 


18

















 


indemnified party from all
liability on claims that are the subject matter of such action, suit or
proceeding.


 


(d)           To the extent that the
indemnification provided for in this Section 8 is unavailable to an indemnified
party in respect of any losses, claims, damages, liabilities or judgments
referred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
judgments (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantors, on the one hand, and the
Holders, on the other hand, from their sale of Transfer Restricted Securities
or (ii) if the allocation provided by clause 8(d)(i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 8(d)(i) above but also the relative
fault of the Company and the Guarantors, on the one hand, and of the Holder, on
the other hand, in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations.  The
relative fault of the Company and the Guarantors, on the one hand, and of the
Holder, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or such Guarantor, on the one hand, or by
the Holder, on the other hand, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.  The amount paid or payable by
a party as a result of the losses, claims, damages, liabilities and judgments
referred to above shall be deemed to include, subject to the limitations set
forth in the third sentence of Section 8(c), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.


 


The Company, the Guarantors and each Holder agree that
it would not be just and equitable if contribution pursuant to this Section
8(d) were determined by pro rata allocation (even if the Holders were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in the immediately
preceding paragraph.  The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities or judgments referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any matter, including any action
that could have given rise to such losses, claims, damages, liabilities or
judgments.  Notwithstanding the
provisions of this Section 8, no Holder, its directors, its officers or any
Person, if any, who controls such Holder shall be required to contribute, in
the aggregate, any amount in excess of the amount by which the total received
by such Holder with respect to the sale of Transfer Restricted Securities
pursuant to a Registration Statement exceeds (i) the amount paid by such Holder
for such Transfer Restricted Securities and (ii) the amount of any damages
which such Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission.  No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.  The Holders’
obligations to contribute pursuant to this Section 8(d) are several in
proportion to the respective principal amount of Transfer Restricted Securities
held by each Holder hereunder and not joint.


 


19

















 


Section
9.  Rule 144A and Rule 144.  The Company and each Guarantor agree with
each Holder, for so long as any Transfer Restricted Securities remain
outstanding and during any period in which the Company (i) is not subject to
Section 13 or 15(d) of the Exchange Act, to make available, upon written
request of any Holder, to such Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale thereof and any prospective purchaser of
such Transfer Restricted Securities designated by such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Act in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144A,
and (ii) is subject to Section 13 or 15 (d) of the Exchange Act, to make all
filings required thereby in a timely manner in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144.


 


Section
10.  Miscellaneous.  (a)  Remedies.  The Company and the Guarantors acknowledge
and agree that any failure by the Company and/or the Guarantors to comply with
their respective obligations under Sections 3 and 4 hereof may result in
material irreparable injury to the Purchaser 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, any
Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Company’s and the Guarantors’ obligations under
Sections 3 and 4 hereof.  The Company
and the Guarantors further agree to waive the defense in any action for
specific performance that a remedy at law would be adequate.


 


(b)           No Inconsistent
Agreements.  None of the Company or
the Guarantors will, on or after the date of this Agreement, enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof.  None of the Company
or the Guarantors has previously entered into any agreement granting any
registration rights with respect to its securities to any Person.  The rights granted to the Holders hereunder
do not in any way conflict with and are not inconsistent with the rights
granted to the holders of the Company’s or the Guarantors’ securities under any
agreement in effect on the date hereof.


 


(c)           Amendments and
Waivers.  The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to or departures from the provisions hereof may not be given unless (i) in the
case of Section 5 hereof and this Section 10(c)(i), the Company has obtained the
written consent of Holders of all outstanding Transfer Restricted Securities
and (ii) in the case of all other provisions hereof, the Company has obtained
the written consent of Holders of a majority of the outstanding principal
amount of Transfer Restricted Securities (excluding Transfer Restricted
Securities held by the Company or its Affiliates).  Notwithstanding the foregoing, a waiver or consent to departure
from the provisions hereof that relates exclusively to the rights of Holders
whose Transfer Restricted Securities are being tendered pursuant to the
Exchange Offer, and that does not affect directly or indirectly the rights of
other Holders whose Transfer Restricted Securities are not being tendered
pursuant to such Exchange Offer, may be given by the Holders of a majority of
the outstanding principal amount of Transfer Restricted Securities subject to
such Exchange Offer.


 


(d)           Third Party
Beneficiary.  The Holders shall be
third party beneficiaries to the agreements made hereunder between the Company
and the Guarantors, on the one hand, and the Purchaser, on the other hand, and
shall have the right to enforce such agreements directly to


 


20

















 


the extent they may deem such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.


 


(e)           Notices.  All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested),
facsimile, or air courier guaranteeing overnight delivery:


 


(1)           if
to a Holder, at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture; and


 


(2)           (i)            If to the Company
or any Guarantor:


 


InSight Health
Services Corp.


26250
Enterprise Court


Suite 100


Lake Forest,
CA  92630


Facsimile:  949-462-3703


Attention:  General Counsel


 


with copies to:


 


J.W. Childs
Associates, L.P.


111 Huntington
Avenue


Suite 2900


Boston, MA  02199


Facsimile:  617-753-1101


Attention:  Edward D. Yun


 


and to:


 


The Halifax
Group, L.L.C.


1133 Connecticut Avenue N.W.


Suite 700


Washington,
D.C.  20036


Facsimile:   202-296-7133


Attention:   David W. Dupree


 


and to:


 


Kaye Scholer
LLP


245 Park
Avenue


New York,
NY  10022


Facsimile:  212-836-8689


Attention:  Stephen C. Koval, Esq.


 


All such notices and communications shall be deemed to
have been duly given:  at the time
delivered by hand, if personally delivered; five Business Days after being
deposited in


 


21

















 


the mail, postage prepaid, if
mailed; when receipt acknowledged, if by facsimile; and on the next business
day, if timely delivered to an air courier guaranteeing overnight delivery.


 


Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person giving the same to
the Trustee at the address specified in the Indenture.


 


(f)            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 limitation and without the need for an express
assignment, subsequent Holders; provided that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Transfer Restricted Securities in violation of the terms hereof
or of the Purchase Agreement or the Indenture. 
If any transferee of any Holder shall acquire Transfer Restricted
Securities in any manner, whether by operation of law or otherwise, such
Transfer Restricted Securities shall be held subject to all of the terms of
this Agreement, and by taking and holding such Transfer Restricted Securities
such Person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement, including the
restrictions on resale set forth in this Agreement and, if applicable, the
Purchase Agreement, and such Person shall be entitled to receive the benefits
hereof.


 


(g)           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.


 


(h)           Headings.  The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.


 


(i)            Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAW RULES THEREOF.


 


(j)            Severability.  In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.


 


(k)           Entire
Agreement.  This Agreement is
intended by the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein.  There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities.  This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.


 


22

















 


IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.


 


	
   

  	
  INSIGHT
  HEALTH SERVICES CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian G.
  Drazba

  	
   

  
	
   

  	
   

  	
  Name: Brian
  G. Drazba

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief

  
	
   

  	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  INSIGHT
  HEALTH SERVICES HOLDINGS CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian G.
  Drazba

  	
   

  
	
   

  	
   

  	
  Name: Brian
  G. Drazba

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief

  
	
   

  	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  INSIGHT
  HEALTH CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian G.
  Drazba

  	
   

  
	
   

  	
   

  	
  Name: Brian
  G. Drazba

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief

  
	
   

  	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  SIGNAL
  MEDICAL SERVICES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian G.
  Drazba

  	
   

  
	
   

  	
   

  	
  Name: Brian
  G. Drazba

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief

  
	
   

  	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  OPEN MRI,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian G.
  Drazba

  	
   

  
	
   

  	
   

  	
  Name: Brian
  G. Drazba

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief

  
	
   

  	
   

  	
   

  	
  Financial
  Officer

  
					



 

















 


	
   

  	
  MAXUM HEALTH
  CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian G.
  Drazba

  	
   

  
	
   

  	
   

  	
  Name: Brian
  G. Drazba

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief

  
	
   

  	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  RADIOSURGERY
  CENTERS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian G.
  Drazba

  	
   

  
	
   

  	
   

  	
  Name: Brian
  G. Drazba

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief

  
	
   

  	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  MAXUM HEALTH
  SERVICES CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian G.
  Drazba

  	
   

  
	
   

  	
   

  	
  Name: Brian
  G. Drazba

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief

  
	
   

  	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  MRI ASSOCIATES, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By: InSight
  Health Corp., its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian G.
  Drazba

  	
   

  
	
   

  	
   

  	
  Name: Brian
  G. Drazba

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief

  
	
   

  	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  MAXUM HEALTH
  SERVICES OF NORTH TEXAS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian G.
  Drazba

  	
   

  
	
   

  	
   

  	
  Name: Brian
  G. Drazba

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief

  
	
   

  	
   

  	
   

  	
  Financial
  Officer

  
					



 

















 


	
   

  	
  MAXUM HEALTH
  SERVICES OF DALLAS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian G.
  Drazba

  	
   

  
	
   

  	
   

  	
  Name: Brian
  G. Drazba

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief

  
	
   

  	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  NDDC, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian G.
  Drazba

  	
   

  
	
   

  	
   

  	
  Name: Brian
  G. Drazba

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief

  
	
   

  	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  DIAGNOSTIC
  SOLUTIONS CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian G.
  Drazba

  	
   

  
	
   

  	
   

  	
  Name: Brian
  G. Drazba

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief

  
	
   

  	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  ORANGE
  COUNTY REGIONAL PET CENTER-IRVINE, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By: InSight
  Health Corp., its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian G.
  Drazba

  	
   

  
	
   

  	
   

  	
  Name: Brian
  G. Drazba

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief

  
	
   

  	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  VALENCIA
  MRI, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By: InSight
  Health Corp., its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian G.
  Drazba

  	
   

  
	
   

  	
   

  	
  Name: Brian
  G. Drazba

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice
  President and Chief

  
	
   

  	
   

  	
   

  	
  Financial
  Officer

  
					



 

















 


	
   

  	
  SAN FERNANDO
  VALLEY REGIONAL PET CENTER, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By: InSight
  Health Corp., its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian G.
  Drazba

  	
   

  
	
   

  	
   

  	
  Name: Brian
  G. Drazba

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief

  
	
   

  	
   

  	
   

  	
  Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  WILKES-BARRE
  IMAGING, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By: InSight
  Health Corp., its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian G.
  Drazba

  	
   

  
	
   

  	
   

  	
  Name: Brian
  G. Drazba

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief

  
	
   

  	
   

  	
   

  	
  Financial
  Officer

  
					



 

















 


This foregoing Agreement is
hereby confirmed and accepted by the Purchaser as of the date first written
above.


 


	
   

  	
  BANC OF
  AMERICA SECURITIES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dan Kelly

  	
   

  
	
   

  	
   

  	
  Name: Dan Kelly

  
	
   

  	
   

  	
  Title: Managing
  Director

  



 

















 


SCHEDULE A


 


Subsidiary
Guarantors


 


	
  Subsidiary Guarantor

  	
   

  	
  Jurisdiction
  of Organization

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  InSight Health Corp.

  	
   

  	
   

  	
  Delaware

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Signal Medical Services, Inc.

  	
   

  	
   

  	
  Delaware

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Open MRI, Inc.

  	
   

  	
   

  	
  Delaware

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Maxum Health Corp.

  	
   

  	
   

  	
  Delaware

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Radiosurgery Centers, Inc.

  	
   

  	
   

  	
  Delaware

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Maxum Health Services Corp.

  	
   

  	
   

  	
  Delaware

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MRI Associates, L.P.

  	
   

  	
   

  	
  Indiana

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Maxum Health Services of North Texas, Inc.

  	
   

  	
   

  	
  Texas

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Maxum Health Services of Dallas, Inc.

  	
   

  	
   

  	
  Texas

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NDDC, Inc.

  	
   

  	
   

  	
  Texas

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Diagnostic Solutions Corp.

  	
   

  	
   

  	
  Delaware

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Orange County Regional PET Center – Irvine,
  LLC

  	
   

  	
   

  	
  California

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Valencia MRI, LLC

  	
   

  	
   

  	
  California

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  San Fernando Valley Regional PET Center,
  LLC

  	
   

  	
   

  	
  California

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wilkes-Barre Imaging, LLC

  	
   

  	
   

  	
  Pennsylvania