EXHIBIT 1
ALLIANCE IMAGING, INC.
$125,000,000 [ ]% Senior Subordinated Notes due 2005
$40,000,000 Senior Subordinated Floating Rate Notes due 2005
UNDERWRITING AGREEMENT
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[ ], 1997
BT ▇▇▇▇. ▇▇▇▇▇ Incorporated
Salomon Brothers Inc
c/o BT ▇▇▇▇. ▇▇▇▇▇ Incorporated
One Bankers Trust Plaza
New York, New York 10005
Ladies and Gentlemen:
Alliance Imaging, Inc., a Delaware corporation ("Alliance"), hereby
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confirms its agreement with you (the "Underwriters") as set forth below.
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1. The Securities. Subject to the terms and conditions herein
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contained, Alliance proposes to issue and sell to the Underwriters (the
"Offering") $125,000,000 aggregate principal amount of its Senior Subordinated
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Notes due 2005 (the "Fixed Rate Notes") and $40,000,000 aggregate principal
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amount of its Senior Subordinated Floating Rate Notes due 2005 (the "Floating
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Rate Notes" and together with the Fixed Rate Notes, the "Notes"). The Notes
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will be issued pursuant to an indenture (the "Indenture") to be entered into
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among Alliance, as issuer, the Guarantors (as defined below) and [ ], as trustee
(the "Trustee").
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The Notes will be unconditionally guaranteed (the "Guarantees") on a
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senior subordinated basis by Alliance Imaging of Ohio, Inc., a Delaware
corporation, Alliance Imaging of Michigan, Inc., a Delaware corporation, Royal
Medical Health Services, Inc., a Pennsylvania corporation, and Alliance Imaging
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of Central Georgia, Inc., a Georgia corporation (collectively, the
"Guarantors"), each of which is a wholly owned subsidiary of Alliance. The Notes
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and the Guarantees are collectively referred to as the "Securities". Alliance
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and the Guarantors are collectively referred to as the "Issuers".
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The Notes are being sold in connection with the recapitalization of
Alliance (the "Recapitalization") which will be effected pursuant to an
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Agreement and Plan of Merger dated as of July 23, 1997, as amended, whereby
Newport Acquisition Company ("Newco"), a Delaware corporation, will be merged
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with and into Alliance with Alliance being the surviving corporation. The
Recapitalization will be consummated concurrently with the Offering.
In connection with the Recapitalization, Alliance will execute an
agreement (the "Credit Agreement") with Bankers Trust Company, as agent, and
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certain lenders thereto to provide Alliance a loan commitment of up to $125
million.
The Offering, the Recapitalization and the related borrowings under
the Credit Agreement are collectively referred to as the "Transactions". The
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Securities, the Indenture and this Agreement are collectively referred to herein
as the "Operative Documents".
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The consummation of the Transactions, and other transactions
contemplated thereby, will be concurrent, and the Offering is conditioned upon
consummation of the other components of the Transactions.
2. Representations and Warranties. The Issuers represent and
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warrant to and agree with the Underwriters that:
(a) A registration statement on Form S-2, including a prospectus,
subject to completion, has been filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended
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(together with the rules and regulations of the Commission promulgated
thereunder, the "Act"), by Alliance with respect to the Securities (File
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No. 333-33817), and one or more
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amendments to such registration statement also have been so
filed. After the execution of this Agreement, Alliance will file with the
Commission either (x) if such registration statement, as it may have been
amended, has been declared by the Commission to be effective under the Act,
a prospectus in the form most recently included in an amendment to such
registration statement (or, if no such amendment shall have been filed, in
such registration statement) with such changes or insertions as are
required by Rule 430A under the Act or permitted by Rule 424(b) under the
Act and as have been provided to and approved by the Underwriters prior to
the execution of this Agreement, or (y) if such registration statement, as
it may have been amended, has not been declared by the Commission to be
effective under the Act, an amendment to such registration statement, and
including a form of prospectus, a copy of which amendment has been
furnished to and approved by the Underwriters prior to the execution of
this Agreement. As used in this Agreement, the term "Registration
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Statement" means such registration statement, as amended at the time when
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it was or is declared effective, and including all financial schedules and
exhibits thereto and including any information omitted therefrom pursuant
to Rule 430A under the Act and included in the Prospectus (as hereinafter
defined); the term "Preliminary Prospectus" means each prospectus, subject
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to completion, filed with such registration statement or any amendment
thereto (including the prospectus, subject to completion, if any, included
in such Registration Statement or any amendment thereto at the time it was
or is declared effective); and the term "Prospectus" means the prospectus
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included in the Registration Statement, in the form in which such
prospectus was filed with the Commission pursuant to Rule 424(b) under the
Act or, if no prospectus is required to be filed pursuant to said Rule
424(b) with respect to any such Registration Statement, such term means the
prospectus included in such Registration Statement. Any reference herein
to any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto shall be deemed to refer to and include the documents
incorporated therein by
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reference pursuant to Item 12 of Form S-2 under the Act, as of the date of
such Preliminary Prospectus or the Prospectus (all such incorporated
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documents being herein called the "Incorporated Documents").
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(b) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus. When any Preliminary Prospectus was
filed with the Commission it (x) complied in all material respects with the
requirements of the Act and (y) did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. When the Registration Statement or any amendment
thereto was or is declared effective, it (1) contained or will contain all
statements required to be stated therein in accordance with, and complied
or will comply in all material respects with, the requirements of the Act
and (2) did not or will not include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein
not misleading. When the Prospectus or any amendment or supplement thereto
is filed with the Commission pursuant to Rule 424(b) (or, if the Prospectus
or such amendment or supplement is not required to be so filed, when the
Registration Statement or the amendment thereto containing the Prospectus
or amendment or supplement to the Prospectus was or is declared effective)
and on the Closing Date (as defined in Section 3), the Prospectus, as
amended or supplemented at such time, (i) complied or will comply in all
material respects with the requirements of the Act and (ii) did not or will
not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. Each
document incorporated by reference in any Preliminary Prospectus or the
Prospectus, when filed with the Commission, (A) complied in all material
respects with the requirements of the Act and the Exchange Act and (B) did
not include any untrue statement of a material fact or omit to
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state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
foregoing provisions of this paragraph (b) do not apply to statements or
omissions made in any Preliminary Prospectus, the Registration Statement or
any amendment thereto or the Prospectus or any amendment or supplement
thereto in reliance upon and in conformity with written information
furnished to Alliance by the Underwriters specifically for use therein or
to the Statement of Eligibility and Qualification (the
"Form T-1") under the Trust Indenture Act of 1939, as amended (the "Trust
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Indenture Act"), of the Trustee filed as an exhibit to the Registration
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Statement.
(c) At the Closing Date after giving effect to the Transactions,
Alliance will have the authorized, issued and outstanding capitalization
set forth in the Prospectus under the caption "Pro Forma Capitalization";
all of the outstanding shares of capital stock of Alliance are duly
authorized and validly issued, fully paid and nonassessable and not issued
in violation of any preemptive or similar rights. Except as described in
the Prospectus, all of the outstanding shares of capital stock of Alliance
when issued were free and clear of all liens, encumbrances, equities and
claims or restrictions on transferability (other than those imposed by the
Act and the securities or "Blue Sky" laws of certain jurisdictions), or
voting; except as described in the Prospectus, there are no (i) options,
warrants or other rights to purchase, (ii) agreements or other obligations
to issue or (iii) other rights to convert any obligation into, or exchange
any securities for, shares of capital stock of or ownership interests in
Alliance. Except as described in the Registration Statement, Alliance does
not own, directly or indirectly, any shares of capital stock or any other
equity or long-term debt securities or have any equity interest in any
firm, partnership, joint venture or other entity.
(d) Alliance and the subsidiaries of Alliance listed on Exhibit A
attached hereto (each, a "Subsidiary" and collectively, the "Subsidiaries")
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are duly incorporated,
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validly existing and in good standing as corporations under the laws of
their respective jurisdictions of incorporation, with all requisite
corporate power and authority (corporate or otherwise) to own or lease
their properties and conduct their businesses as now conducted. Each of
Alliance and the Subsidiaries is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions where the ownership
or leasing of its properties or the conduct of its businesses requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the business, condition (financial or other) or
results of operations or prospects of Alliance and the Subsidiaries, taken
as a whole (any such event, a "Material Adverse Effect").
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(e) Alliance and each of the Guarantors has all requisite corporate
power and authority to execute, deliver and perform its respective
obligations under this Agreement and the other Operative Documents and to
consummate the transactions contemplated hereby and thereby, including,
without limitation, the power and authority to issue, sell and deliver the
Securities as contemplated by this Agreement.
(f) This Agreement has been duly and validly authorized, executed
and delivered by Alliance and each of the Guarantors.
(g) The Notes have been duly and validly authorized by Alliance for
issuance and conform in all material respects to the description thereof in
the Prospectus. The Notes, when executed by Alliance and authenticated by
the Trustee in accordance with the provisions of the Indenture, and
delivered to and paid for by the Underwriters in accordance with the terms
hereof, will have been duly executed, issued and delivered and will
constitute valid and binding obligations of Alliance, entitled to the
benefits of the Indenture enforceable against Alliance in accordance with
their terms, except that (i) the enforcement thereof may be subject to (A)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or other
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similar laws now or hereafter in effect relating to creditors' rights
generally and (B) general principles of equity and the discretion of the
court before which any proceeding therefor may be brought (regardless of
whether such enforcement is considered in a proceeding in equity or at
law), (each of clauses (A) and (B), an "Enforceability Limitation") and
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(ii) the enforceability of any indemnification or contribution provisions
thereof may be limited under applicable securities laws or the public
policies underlying such laws.
(h) The Guarantees have been duly and validly authorized for
issuance and sale to the Underwriters by the Guarantors and, when the Notes
are duly and validly authorized, executed, issued and authenticated in
accordance with the terms of the Indenture and delivered against payment
therefor in accordance with the terms hereof, will be the valid and binding
obligations of each of the Guarantors, enforceable against each of the
Guarantors in accordance with their terms and entitled to the benefits of
the Indenture, except that the enforcement thereof may be subject to the
Enforceability Limitations and the enforceability of any indemnification or
contribution provisions thereof may be limited under applicable securities
laws or the public policies underlying such laws.
(i) The Indenture has been duly authorized by Alliance and each of
the Guarantors and, when executed and delivered by Alliance and each of the
Guarantors (assuming the due authorization, execution and delivery thereof
by the Trustee), will constitute a valid and binding agreement of Alliance
and the Guarantors, enforceable against each of them in accordance with its
terms, except that the enforcement thereof may be subject to the
Enforceability Limitations and the enforceability of any indemnification or
contribution provisions thereof may be limited under applicable securities
laws or the public policies underlying such laws. The Indenture has been
qualified under the Trust Indenture Act and complies as to form in all
material
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respects with the requirements of the Trust Indenture Act.
(j) The Credit Agreement has been duly authorized by Alliance and
each of the Guarantors and, when duly executed and delivered by Alliance,
will be the valid and binding obligation of Alliance and the Guarantors
enforceable against each of them in accordance with its terms, except that
the enforcement thereof may be subject to the Enforceability Limitations
and the enforceability of any indemnification or contribution provisions
thereof may be limited under applicable securities laws or the public
policies underlying such laws.
(k) Alliance and each of the Guarantors has the requisite corporate
power and authority to enter into the Transactions (to the extent each is a
party thereto).
(l) Except as described in the Prospectus, no consent, approval,
authorization or order of any court or governmental agency or body is
required for the performance of the Operative Documents or the Transactions
by Alliance and the Guarantors or of any of the transactions contemplated
hereby or thereby, except such as have been obtained or are contemplated to
be obtained by the Prospectus and such as may be required under the Act,
the Trust Indenture Act or state securities or "Blue Sky" laws in
connection with the purchase and distribution of the Securities by the
Underwriters and in connection with the Transactions. Neither Alliance or
any of the Subsidiaries is (i) in violation of its certificate of
incorporation or bylaws, (ii) in violation of any statute, judgment,
decree, order, rule or regulation applicable to any of them or any of their
respective properties or assets which violation would have a Material
Adverse Effect, or (iii) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan agreement, note, lease, license,
franchise agreement, permit, certificate or other agreement or instrument
to which any
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of them is subject (collectively, the "Contracts"), which default would
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have a Material Adverse Effect.
(m) The execution, delivery and performance by Alliance and the
Guarantors of the Operative Documents and the consummation of the
Transactions (to the extent each such person is a party thereto) and the
transactions contemplated hereby and thereby will not conflict with or
constitute or result in a breach or violation of any of (x) the terms or
provisions of, or constitute a default by any of them under, any of the
Contracts, which conflict, breach, violation or default, individually or in
the aggregate, would have a Material Adverse Effect, (y) the certificate of
incorporation or bylaws of any such person, or (z) any statute, judgment,
decree, order, rule or regulation (excluding state securities and "Blue
Sky" laws) of any court or governmental agency or other body applicable to
any such person, or any of their respective properties, which conflict,
breach, violation or default, individually or in the aggregate, would have
a Material Adverse Effect.
(n) Each of the Transactions conforms in all material respects to
the description thereof in the Prospectus.
(o) The fair value and present fair saleable value of the assets of
Alliance and each of the Guarantors exceeds the sum of its stated
liabilities and identified contingent liabilities; and after giving effect
to the Transactions and the consummation of the transactions contemplated
thereby and by the Prospectus, Alliance and each of the Guarantors will not
be (a) left with unreasonably small capital with which to carry on its
business as it is proposed to be conducted, (b) unable to pay its debts
(contingent or otherwise) as they mature or (c) insolvent.
(p) The audited and unaudited consolidated financial statements of
Alliance and the related notes included in the Prospectus present fairly in
all material respects the consolidated financial position, results of
operations and cash flows of Alliance at the dates and for the periods to
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which they relate, and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis.
(q) The pro forma financial statements and other pro forma financial
information (including the notes thereto) included in the Prospectus have
been prepared in accordance with applicable requirements of Regulation S-X
promulgated under the Exchange Act and have been properly computed on the
bases described therein. The assumptions used in the preparation of the
pro forma financial statements and other pro forma financial information
included in the Prospectus are reasonable and the adjustments used therein
are appropriate to give effect to the transactions or circumstances
referred to therein in all material respects.
(r) Ernst & Young LLP, which has audited certain of such financial
statements and schedules as set forth in their reports included in the
Registration Statement and the Prospectus, is an independent public
accounting firm as required by the Act.
(s) Except as described in the Prospectus, there is not pending or,
to the knowledge of Alliance, threatened any action, suit, proceeding,
inquiry or investigation to which Alliance or the Guarantors or any of
their respective property is subject, before or brought by any court or
governmental agency or body, which could reasonably be expected to have a
Material Adverse Effect.
(t) Alliance and the Guarantors have obtained all licenses, permits,
franchises and other governmental authorizations necessary to conduct their
respective business as described in the Prospectus and the lack of which
would have a Material Adverse Effect.
(u) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and except as
described therein or contemplated thereby, none of Alliance or the
Guarantors has incurred
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any material liabilities or obligations, direct or contingent, or entered
into any material transactions, not in the ordinary course of business.
(v) Except as described in the Prospectus, (A) each of Alliance and
the Guarantors is in compliance with and not subject to liability under
applicable Environmental Laws (as defined below), (B) each of Alliance and
the Guarantors has made all filings and provided all notices required under
any applicable Environmental Law, and is in compliance with all permits
required under any applicable Environmental Laws, (C) there is no civil,
criminal or administrative action, suit, demand, claim, hearing, notice of
violation, investigation, proceeding, notice or demand letter or request
for information pending or threatened against Alliance or any of the
Guarantors under any Environmental Law, (D) no lien, charge, encumbrance or
restriction has been recorded under any Environmental Law with respect to
any assets, facility or property owned, operated, leased or controlled by
Alliance or any of the Guarantors, (E) none of Alliance or the Guarantors
has received notice that it has been identified as a potentially
responsible party under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"), or any
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comparable state law, and (F) no property or facility of Alliance or any of
the Guarantors is (i) listed or, to Alliance's knowledge, proposed for
listing on the National Priorities List under CERCLA or is (ii) listed in
the Comprehensive Environmental Response, Compensation, Liability
Information System List promulgated pursuant to CERCLA, or, to Alliance's
knowledge, on any comparable list maintained by any state or local
governmental authority; except, in the case of clauses (A), (B) and (D) for
such noncompliance with applicable Environmental Laws, failures to make
filings and provide notices under applicable Environmental Laws and
recording of liens, charges, encumbrances or restrictions under any
Environmental Laws that, individually or in the aggregate, has not had a
Material Adverse Effect and would
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not reasonably be expected to have a Material Adverse Effect
For purposes of this Agreement, "Environmental Laws" means the common law
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and all applicable federal, state and local laws or regulations, codes,
orders, decrees, judgments or injunctions issued, promulgated, approved or
entered thereunder, relating to pollution or protection of public health
and safety or the environment, including, without limitation, laws relating
to (i) emissions, discharges, releases or threatened releases of hazardous
materials into the environment (including, without limitation, ambient
air, surface water, ground water, land surface or subsurface strata), (ii)
the manufacture, processing, distribution, use, generation, treatment,
storage, disposal, transport or handling of hazardous materials, and (iii)
underground and above ground storage tanks and related piping, and
emissions, discharges, releases or threatened releases therefrom.
(w) There is no strike, labor dispute, slowdown or work stoppage
with the employees of Alliance or any of the Guarantors which is pending
or, to the knowledge of Alliance, threatened.
(x) Each of Alliance and the Guarantors carries insurance (including
self-insurance) in such amounts and covering such risks as would be
obtained by companies in the same or similar businesses in the ordinary
course for the conduct of its business and the value of its properties.
(y) Each of Alliance and the Guarantors has good title to all
personal property described in the Prospectus as being owned by it and good
and marketable title to a leasehold estate in the real and personal
property described in the Prospectus as being leased by it free and clear
of all liens, charges, encumbrances or restrictions, except as described in
the Prospectus or to the extent the failure to have such title or the
existence of such liens,
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charges, encumbrances or restrictions would not, individually or in the
aggregate, have a Material Adverse Effect.
(z) None of Alliance or the Guarantors has any liability for any
prohibited transaction or accumulated funding deficiency (within the
meaning of Section 412 of the Code) or any complete or partial withdrawal
liability with respect to any pension, profit sharing or other plan which
is subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), to which Alliance or any of the Guarantors makes or
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ever has made a contribution and in which any employee of Alliance or any
of the Guarantors is or has ever been a participant. With respect to such
plans, Alliance and each of the Guarantors is in compliance in all material
respects with all applicable provisions of ERISA.
(aa) Neither Alliance nor any of the Guarantors or any agent acting
on behalf of them, has taken or will take any action that might cause this
Agreement or the issuance or sale of the Securities to violate Regulation
G, T, U or X of the Board of Governors of the Federal Reserve System as in
effect on the Closing Date.
(bb) Neither Alliance nor any of the Guarantors is now, and after
giving effect to the Transactions and the other transactions contemplated
by the Prospectus will be, required to register as an "investment company"
or a company "controlled by" an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(cc) All taxes, assessments, fees and other charges (including,
without limitation, withholding taxes, penalties, and interest) due or
claimed to be due from Alliance and the Guarantors that are due and payable
have been paid, other than those being contested in good faith or those
currently payable without penalty or interest and for which an adequate
reserve or accrual has been established in accordance with generally
accepted accounting principles, and except where the failure so to pay
would not, individually or in the aggregate, have a Material Adverse
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Effect. Neither Alliance or any of the Guarantors knows of any actual or
proposed additional tax assessments for any fiscal period against Alliance
or the Guarantors, individually or in the aggregate, which would have a
Material Adverse Effect.
(dd) Alliance has delivered to the Underwriters a true and correct
copy of each of the documents contemplated by the Transactions, together
with all related agreements and all schedules and exhibits thereto, and
there shall have been no material amendments, alterations, modifications or
waivers of any of the provisions of any such documents since their
respective dates of execution, other than any such amendments, alterations,
modifications and waivers as to which the Underwriters have been advised in
writing and which would be required to be disclosed in the Prospectus; and
to the best knowledge of Alliance and the Guarantors there exists no event
or condition which would constitute a default or an event of default under
any of the documents contemplated by the Transactions which would result in
a Material Adverse Effect or materially adversely affect the ability of
Alliance and the Guarantors to consummate the Transactions.
Any certificate signed by any officer of Alliance or any of the
Guarantors and delivered to the Underwriters or to counsel for the Underwriters
shall be deemed a joint and several representation and warranty by Alliance and
the Guarantors to each Underwriter as to the matters covered thereby.
3. Purchase, Sale and Delivery of the Securities. On the basis of the
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representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, Alliance agrees to issue
and sell to the Underwriters, and each of the Underwriters severally agrees to
purchase from Alliance, at [ ]% of their principal amount, the respective
aggregate principal amounts of the Notes set forth opposite their respective
names on Exhibit B hereto. The obligations of the Underwriters under this
Agreement are several and not joint. One or more certificates in definitive
form for the Notes that the Underwriters have agreed to purchase
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hereunder, and in such denomination or denominations and registered in such name
or names as the Underwriters request upon notice to Alliance at least two
business days prior to the Closing Date, shall be delivered by or on behalf of
Alliance, against payment by or on behalf of the Underwriters, of the purchase
price therefor by wire transfer of immediately available funds to the account of
Alliance previously designated by it in writing. Such delivery of and payment
for the Securities shall be made at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m. New York time, on [ ],
1997, or at such other place, time or date as the Underwriters and Alliance may
agree upon, such time and date of delivery against payment being herein referred
to as the "Closing Date." Alliance will make such certificate or certificates
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for the Notes available for checking and packaging by the Underwriters at the
offices in New York, New York of BT Securities Corporation at least 24 hours
prior to the Closing Date.
4. Offering by the Underwriters. After the Registration Statement
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becomes effective, the Underwriters propose to offer for sale to the public the
Securities at the price and upon the terms set forth in the Prospectus.
5. Certain Covenants. Each of the Issuers covenants and agrees
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with the Underwriters that:
(a) The Issuers will use all reasonable efforts to cause the
Registration Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto, to become effective promptly. If, at
the time the Registration Statement becomes effective, any information
shall have been omitted therefrom in reliance upon Rule 430A of the rules
and regulations of the Commission under the Act, then immediately following
the execution of this Agreement, the Issuers will prepare, and thereafter
the Issuers will file or transmit for filing with the Commission in
accordance with such Rule 430A and Rule 424(b) of the rules and regulations
of the Commission under the Act, copies of an amended Prospectus relating
to such Registration Statement, or, if required by such Rule 430A, a
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post-effective amendment to such Registration Statement (including an
amended Prospectus), containing all information so omitted. The Issuers
will give each Underwriter notice of their intention to file any amendment
to any Registration Statement (including any post-effective amendment) or
any amendment or supplement to any Prospectus (including any revised
prospectus which the Issuers propose for use by the Underwriters in
connection with the offering of the Securities which differs from any
prospectus on file at the Commission at the time the Registration Statement
including such prospectus becomes effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act), will furnish the Underwriters
with copies of any such amendment or supplement a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file
any such amendment or supplement or use any such prospectus to which the
Underwriters shall reasonably object in writing or which is not in
compliance with the Act unless the Company is advised that in the opinion
of counsel such filing is required by applicable law. The Issuers will
advise the Underwriters, promptly after any of them receive notice thereof,
of the time when the Registration Statement or any amendment thereto has
been filed or declared effective or the Prospectus or any amendment or
supplement thereto has been filed and will provide evidence satisfactory to
the Underwriters of such filing or effectiveness.
(b) The Issuers will advise the Underwriters, promptly after
receiving notice or obtaining knowledge thereof, of (i) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any amendment thereto or any order preventing or
suspending the use of any Preliminary Prospectus or any Prospectus, or any
amendment or supplement thereto, (ii) the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, (iii) the
institution, threatening or contemplation of any proceeding for any such
purpose or (iv) any request made by the Commission
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for amending any Registration Statement, for amending or supplementing the
Prospectus or for additional information. The Issuers will use their best
efforts to prevent the issuance of any such stop order and, if any such
stop order is issued, to obtain the withdrawal thereof as promptly as
possible.
(c) The Issuers will cooperate with the Underwriters in arranging
for the qualification of the Notes for offering and sale under the
securities or "Blue Sky" laws of such jurisdictions as the Underwriters may
designate and will continue such qualifications in effect for as long as
may be necessary to complete the initial distribution of the Notes by the
Underwriters; provided, however, that in connection therewith the Issuers
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shall not be required to qualify as a foreign corporation or to execute a
general consent to service of process in any jurisdiction, to take any
other action that would subject it to general service of process or to
taxation in respect of doing business.
(d) If, at any time when a Prospectus relating to the Securities is
required to be delivered under the Act, any event shall occur as a result
of which it is necessary, in the opinion of counsel for the Underwriters,
to amend or supplement any Prospectus in order to make such Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if for any other reason it shall be necessary
to amend or supplement the Prospectus in order to comply with the Act and
the Exchange Act, the Issuers shall (subject to Section 5(a)) forthwith
amend or supplement such Prospectus so that, as so amended or supplemented,
such Prospectus will 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 the light of the circumstances existing at the time it is
delivered to a purchaser, not misleading and will comply with the Act and
the Exchange Act, and the Issuers will furnish to the Underwriters a
reasonable number of copies of such amendment or supplement.
-18-
(e) The Issuers will without charge, provide (i) to each Underwriter
and to counsel for the Underwriters a signed copy of each registration
statement originally filed with respect to the Securities and each
amendment thereto (in each case including exhibits thereto) and (ii) so
long as a prospectus relating to the Securities is required to be delivered
under the Act, as many copies of the Preliminary Prospectus or Prospectus
or any amendment or supplement thereto as the Underwriters may reasonably
request.
(f) Subject to Section 5(a), the Issuers will timely complete all
required filings and otherwise comply fully in a timely manner with all
provisions of the Exchange Act and promptly file all reports and any
definitive proxy or information statements required to be filed by the
Issuers with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offer or sale of any of the Notes.
(g) The Issuers will make generally available to its security
holders as soon as practicable, but not later than 90 days after the close
of the period covered thereby, an earning statement (in form complying with
the provisions of Rule 158 of the rules and regulations of the Commission
under the Act) covering a twelve-month period beginning not later than the
first day of the fiscal quarter of the Issuers next following the
"effective date" (as defined in Rule 158) of the Registration Statement.
(h) The Issuers will apply the net proceeds from the sale of the
Securities as set forth in the Prospectus.
(i) Prior to the Closing Date, the Issuers will furnish to the
Underwriters, as soon as they have been prepared by or are available to the
Issuers, a copy of any unaudited interim financial statements of the
Issuers for any period subsequent to the period covered by the most
-19-
recent financial statements appearing in the Registration Statement and the
Prospectus.
6. Expenses. The Issuers agree to pay all costs and expenses
--------
incident to the performance of their obligations under this Agreement, whether
or not the transactions contemplated herein are consummated or this Agreement is
terminated pursuant to Section 10 hereof, including, but not limited to, all
costs and expenses incident to (i) the printing, word processing or other
production of documents with respect to such transactions, including any costs
of printing the registration statement originally filed with respect to the
Securities and any amendments thereto, any Preliminary Prospectus and any
Prospectus and any amendments or supplements thereto, and any "Blue Sky"
memoranda, (ii) all arrangements relating to the delivery to the Underwriters of
copies of the foregoing documents, (iii) the fees and disbursements of the
counsel, the accountants and any other experts or advisors retained by the
Issuers, (iv) the preparation, issuance and delivery to the Underwriters of any
certificates evidencing the Securities, (v) the qualification of the Securities
under state securities and "Blue Sky" laws, including filing fees and reasonable
fees and disbursements of counsel for the Underwriters relating thereto, (vi)
the filing fees of the Commission and the National Association of Securities
Dealers, Inc. relating to the Securities, (vii) expenses in connection with any
meetings with prospective investors in the Securities, (viii) fees and expenses
of the Trustee, including fees and expenses of its counsel, (ix) advertising
relating to the offering of the Securities (other than as shall have been
specifically approved by the Underwriters to be paid for by the Underwriters),
and (x) any fees charged by investment rating agencies for the rating of the
Securities. If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 7 hereof is not satisfied, because this Agreement is terminated or
because of any failure, refusal or inability on the part of the Issuers to
perform all obligations and satisfy all conditions on their part to be performed
or satisfied hereunder (other than solely by reason of a default by the
Underwriters of their obligations
-20-
hereunder after all conditions hereunder have been satisfied in accordance
herewith), the Issuers agree to promptly reimburse the Underwriters upon demand
for all out-of-pocket expenses (including all counsel fees and disbursements)
that shall have been incurred by the Underwriters in connection with the
proposed purchase and sale of the Securities and any other transactions
contemplated by this Agreement.
7. Conditions of the Underwriters' Obligations. The obligation of the
-------------------------------------------
Underwriters to purchase and pay for the Securities are subject to the accuracy
of the representations and warranties contained herein, to the performance by
the Issuers of their covenants and agreements hereunder and in satisfaction of
the following additional conditions:
(a) If the registration statement originally filed with respect to
the Securities, or any amendment thereto filed prior to the Closing Date
has not been declared effective as of the time of execution hereof, such
registration statement or such amendment shall have been declared effective
not later than 10:00 a.m., New York City time, on the date on which the
amendment to such registration statement originally filed with respect to
the Securities, or to the Registration Statement, as the case may be,
containing information regarding the initial public offering price of the
Securities has been filed with the Commission, or such later time and date
as shall have been consented to by the Underwriters; if required, the
Prospectus and any amendment or supplement thereto shall have been filed in
accordance with Rule 424(b) under the Act; no amendment to the Registration
Statement shall have been filed to which the Underwriters have objected
pursuant to Section 5(a) hereto; no stop order suspending the effectiveness
of the Registration Statement or any amendment thereto or the qualification
of the Indenture under the Trust Indenture Act shall have been issued and
no proceedings for that purpose shall have been instituted or to the
knowledge of the Issuers or the Underwriters, shall be threatened or
contemplated by the Commission.
-21-
(b) The Underwriters shall have received an opinion in form and
substance satisfactory to the Underwriters, dated the Closing Date, of
▇'▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and Karabell LLP, special counsel to the Issuers,
substantially in the form of Exhibit C hereto.
(c) The Underwriters shall have received an opinion in form and
substance satisfactory to the Underwriters, dated the Closing Date, of
Irell & ▇▇▇▇▇▇▇ LLP, counsel to the Issuers, substantially in the form of
Exhibit D hereto.
(d) The Underwriters shall have received an opinion in form and
substance satisfactory to the Underwriters, dated the Closing Date, of [ ],
Pennsylvania counsel to Alliance, substantially in the form of Exhibit E
hereto.
(e) The Underwriters shall have received an opinion in form and
substance satisfactory to the Underwriters, dated the Closing Date, of [ ],
Georgia counsel to the Issuers, substantially in the form of Exhibit F
hereto.
(f) The Underwriters shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters,
with respect to the sufficiency of certain corporate proceedings and other
legal matters relating to this Agreement, and such other related matters as
the Underwriters may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and other
documents and information as they may reasonably request to pass upon such
matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
may state that their opinion is limited to matters of New York, Delaware
corporate and federal law.
(g) The Underwriters shall have received from Ernst & Young LLP,
independent public accountants for Alliance, letters dated, respectively,
the date hereof and the Closing
-22-
Date, in form and substance satisfactory to the Underwriters.
(h) The Underwriters shall have received a certificate, dated the
Closing Date, of the Chief Financial Officer of Alliance, to the effect
that the representations and warranties contained in Section 2(o) of this
Agreement are true and correct in all material respects as if made on and
as of the Closing Date.
(i) The representations and warranties of the Issuers contained in
this Agreement shall be true and correct in all material respects on and as
of the Closing Date (other than to the extent any such representation or
warranty is expressly made as to a certain date); and the Issuers shall
have complied in all material respects with all agreements and satisfied
all conditions on their part to be performed or satisfied hereunder at or
prior to the Closing Date.
(j) The Recapitalization and the transactions contemplated thereby
shall have been consummated concurrently with the Offering.
(k) The Credit Agreement shall have been executed and delivered by
all parties thereto.
(l) Subsequent to the respective dates of the most recent financial
statements of Alliance contained in the Prospectus, there shall have been
no material adverse change in the business, condition (financial or other)
results of operations or prospects of Alliance and the Subsidiaries taken
as a whole (a "Material Adverse Change") or any development which could
-----------------------
reasonably be expected to result in a Material Adverse Change, except as
set forth in, or contemplated by, the Prospectus.
(m) None of the issuance and sale of the Securities pursuant to this
Agreement or the other Transactions shall be enjoined (temporarily or
permanently) and no restraining order or other injunctive order shall have
been issued
-23-
or any action, suit or proceeding shall have been commenced
with respect to this Agreement or the Transactions before any court or
governmental authority.
(n) The Underwriters shall have received certificates, dated the
Closing Date, of the appropriate officers of Alliance and each of the
Guarantors as to such person, to the effect that:
(A) The representations and warranties of such person in this Agreement
are true and correct in all material respects as if made on and as of the
Closing Date and such person has performed in all material respects all
covenants and agreements and satisfied in all material respects all
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(B) No stop order suspending the effectiveness of the Registration
Statement or any amendment thereto or the qualification of the Indenture
under the Trust Indenture Act has been issued, and no proceedings for those
purposes have been instituted or, to the best of such person's knowledge,
are threatened or contemplated by the Commission; and
(C) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been any
Material Adverse Change except as set forth in or contemplated by the
Prospectus.
(o) On the Closing Date, Alliance shall have, to the extent a party
thereto, complied in all material respects with all agreements and
covenants in all documents contemplated by the Transactions and satisfied
all conditions specified therein to be complied with or performed at or
prior to the Closing Date, and each of the documents contemplated by the
Transactions shall be in full force and effect.
-24-
(p) On the Closing Date, the Underwriters shall have received copies
of all certificates, documents and opinions, reasonably requested by the
Underwriters, delivered by Alliance or any of its counsel and such other
certificates, documents and opinions reasonably obtainable by Alliance
pursuant to the Transactions.
On or before the Closing Date, the Underwriters shall have received
such further documents, opinions, certificates and schedules or instruments
relating to the business, corporate, legal and financial affairs of Alliance and
Newco as they shall have theretofore reasonably requested.
All such opinions, certificates, letters, schedules, documents or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are reasonably satisfactory in all material respects to the
Underwriters. The Issuers shall furnish to the Underwriters such conformed
copies of such opinions, certificates, letters, schedules, documents and
instruments in such quantities as the Underwriters shall reasonably request.
8. Indemnification and Contribution. (a) Each of the Issuers
--------------------------------
agree, jointly and severally, to indemnify and hold harmless each Underwriter,
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter or
such controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as any such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or any amendment thereto or
any Preliminary Prospectus or any Prospectus or any amendment or supplement
thereto or
(ii) the omission or alleged omission to state, in the Registration
Statement or any amendment thereto, any
-25-
Preliminary Prospectus or any Prospectus or any amendment or supplement
thereto, a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, and will reimburse, as incurred, each
Underwriter and each such controlling person for any reasonable and
documented out-of-pocket legal or other expenses reasonably incurred by the
Underwriters or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with
any such loss, claim, damage, liability or action; provided, however, that
-------- -------
none of the Issuers will be liable in any such case to an Underwriter to
the extent that any such loss, claim, damage or liability arises out of or
is based upon any untrue statement or alleged untrue statement or omission
or alleged omission made in the Registration Statement or any amendment
thereto, any Preliminary Prospectus or any Prospectus or any amendment or
supplement thereto, or any Application in reliance upon and in conformity
with written information furnished to the Issuers by or on behalf of any of
such Underwriter specifically for use therein; and provided, further, that
-------- -------
none of the Issuers will be liable to an Underwriter or any person
controlling such Underwriter with respect to any such untrue statement or
omission made in any Preliminary Prospectus that is corrected in the
Prospectus (or any amendment or supplement thereto) if the person asserting
any such loss, claim, damage or liability purchased Securities from such
Underwriter in reliance upon the Preliminary Prospectus or Prospectus but
was not sent or given a copy of the Prospectus (as amended or supplemented)
at or prior to the written confirmation of the sale of such Securities to
such person in any case where such delivery of such Prospectus or
Prospectus (as so amended or supplemented) is required by the Act, unless
such failure to deliver such Prospectus (as amended or supplemented) was a
result of noncompliance by the Issuers with Section 5(e)(ii) of this
Agreement. This indemnity agreement will be in addition to any liability
that the Issuers may otherwise have to the indemnified parties.
-26-
None of the Issuers will, without the prior written consent of the
Underwriters, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action, suit or proceeding in respect
of which indemnification from the Underwriters may be sought hereunder
(whether or not the Underwriters or any person who controls either of the
Underwriters within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes an unconditional
release of the Underwriters and each such controlling person from all
liability arising out of such claim, action, suit or proceeding.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Issuers, their directors, officers who signed the
Registration Statement and each person, if any, who controls any of the
Issuers within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which
any of the Issuers or any such director, officer or controlling person may
become subject under the Act, the Exchange Act, or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or
any amendment thereto, any Preliminary Prospectus or any Prospectus or any
amendment or supplement thereto or (ii) the omission or the alleged
omission to state therein a material fact required to be stated in the
Registration Statement or any amendment thereto, any Preliminary Prospectus
or any Prospectus or any amendment or supplement thereto, or necessary to
make the statements therein (in the case of any Preliminary Prospectus, any
Prospectus or any amendment or supplement thereto, in the light of the
circumstances under which such statements were made) not misleading, in
each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Issuers by or on behalf of such Underwriter specifically for use
-27-
therein; and, subject to the limitation set forth immediately preceding
this clause, will reimburse, as incurred, any reasonable and documented
out-of-pocket legal or other expenses reasonably incurred by the Issuers or
any such director, officer or controlling person in connection with
investigating or defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action in
respect thereof. This indemnity agreement will be in addition to any
liability that the Underwriters may otherwise have to the indemnified
parties. The Underwriters will not, without the prior written consent of
the Issuers, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action, suit or proceeding in respect
of which indemnification from the Issuers may be sought hereunder (whether
or not any of the Issuers or any person who controls any of the Issuers
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act is a party to such claim, action, suit or proceeding), unless such
settlement, compromise or consent includes an unconditional release any of
the Issuers and each such controlling person from all liability arising out
of such claim, action, suit or proceeding.
(c) Promptly after receipt by an indemnified party under this
Section 8 of 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 8, notify the indemnifying party of
the commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 8 except to the extent
that such omission results in the forfeiture by the indemnifying party of
substantial rights and defenses. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party; provided,
--------
however, that if the defendants in any such action include both the
-------
indemnified party and the indemnifying
-28-
party and the indemnified party shall have reasonably concluded that there
may be one or more legal defenses available to it and/or other indemnified
parties that are different from or in addition to those available to any
such indemnifying party such that representation of both the indemnified
parties and the indemnifying parties by the same counsel is inappropriate
then the indemnifying parties shall not have the right to direct the
defense of such action on behalf of such indemnified party or parties and
such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses, other than reasonable and
documented out-of-pocket costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof, unless (i)
the indemnified party shall have employed separate counsel in accordance
with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying
party shall not be liable for the expenses of more than one separate
counsel (in addition to local counsel) in any one action or separate but
substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated by the Underwriters
in the case of paragraph (a) of this Section 8 or Alliance in the case of
paragraph (b) of this Section 8, representing the indemnified parties under
such paragraph (a) or paragraph (b), as the case may be, who are parties to
such action or actions) or (ii) the indemnifying party has authorized in
writing the employment of counsel for the indemnified party at the expense
of the indemnifying parties. After such notice from the indemnifying
parties to such indemnified party (so long as the indemnified party shall
have informed the indemnifying parties of such action in accordance with
this Section 8 on a timely basis prior to the indemnified party seeking
indemnification hereunder), the indemnifying parties will not be liable for
the costs and expenses of any settlement of such action
-29-
effected by such indemnified party without the consent of the indemnifying
party, unless such indemnified party waived its rights under this Section
8, in which case the indemnified party may effect such a settlement without
such consent.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 8 is unavailable or insufficient
to hold harmless an indemnified party in respect of any losses, claims,
damages or liabilities (or actions in respect thereof), each indemnifying
party, in order to provide for just and equitable contribution, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i) the
relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party on the other from the offering of the
Securities or (ii) if the allocation provided by the foregoing clause (i)
is not permitted by applicable law, not only such relative benefits but
also the relative fault of the indemnifying party or parties on the one
hand and the indemnified party on the other in connection with the
statements or omissions or alleged statements or omissions that resulted in
such losses, claims, damages or liabilities (or actions in respect
thereof). The relative benefits received by the Issuers on the one hand and
the Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the offering of the Securities (before deducting
expenses other than underwriting discounts and commissions) received by the
Issuers bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault of the parties 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 Issuers on the one
hand, or the Underwriters on the other, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, and any other equitable considerations appropriate
in the circumstances. The Issuers and the Underwriters agree that it would
not be equitable if the
-30-
amount of such contribution were determined by pro rata or per capita
allocation (even if the Issuers on the one hand and the Underwriters on the
other hand were treated as one entity for such purpose) or by any other
method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d).
Notwithstanding any other provision of this paragraph (d), the Underwriters
shall not be obligated to make contributions hereunder that in the
aggregate exceed the total underwriting discounts and commissions received
by the Underwriters under this Agreement, less the aggregate amount of any
damages that the Underwriters have otherwise been required to pay by reason
of the untrue or alleged untrue statements or the omissions or alleged
omissions to state a material fact, and 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. For purposes of this paragraph (d), each
person, if any, who controls any of the Underwriters within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Underwriters, and each director and each
officer of the Issuers who signed the Registration Statement and each
person, if any, who controls the Issuers within the meaning of Section 15
of the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Issuers.
9. Survival Clause. The respective representations, warranties,
---------------
agreements, covenants, indemnities and other statements of the Issuers, their
officers and the Underwriters set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement shall remain in full
force and effect, regardless of (i) any investigation made by or on behalf of
the Issuers, any of their officers or directors, the Underwriters or any
controlling person referred to in Section 8 hereof and (ii) delivery of and
payment for the Securities, and shall be binding upon and shall inure to the
benefit of, any successors, assigns, heirs, personal representatives of the
Issuers, the Issuers, the Underwriters and indemnified parties referred to in
Section 8 hereof. The respective agreements, covenants, indemnities and other
statements set
-31-
forth in Sections 6 and 8 hereof shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement.
10. Termination. (a) This Agreement may be terminated in the sole
-----------
discretion of the Underwriters by notice to Alliance given in the event that the
Issuers shall have failed, refused or been unable to satisfy all conditions on
their part to be performed or satisfied hereunder on or prior to the Closing
Date or, if at or prior to the Closing Date:
(i) The Issuers shall have sustained any loss or interference with
respect to their respective businesses or properties from fire, flood,
hurricane, earthquake, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or governmental
proceeding, which loss or interference has had or has a Material Adverse
Effect, or there shall have been any Material Adverse Change, or any
development involving a prospective Material Adverse Change (including
without limitation a change in management or control of any of the
Issuers), except as described in or contemplated by the Prospectus
(exclusive of any amendment or supplement thereto);
(ii) trading in securities generally on the New York Stock Exchange,
Inc., the American Stock Exchange or the Nasdaq Stock Market shall have
been suspended or minimum or maximum prices shall have been established on
any such exchange;
(iii) a banking moratorium shall have been declared by New York or
United States authorities;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or (c) any material change in the financial
markets of the United States which, in the sole judgment of the
Underwriters, makes it impracticable or inadvisable to proceed
-32-
with the public offering or the delivery of the Securities as contemplated
by the Registration Statement, as amended as of the date hereof; or
(v) any securities of the Issuers shall have been downgraded or
placed on any "watch list" for possible downgrading by any nationally
recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this Section 10 shall
be without liability of any party to any other party except as provided in
Section 9 hereof.
11. Information Supplied by the Underwriters. The statements set
----------------------------------------
forth in the last paragraph on the front cover page, the last paragraph on page
ii, and the third paragraph, the second sentence in the fourth paragraph and the
sixth and seventh paragraphs under the caption "Underwriting" in the Prospectus
constitute the only information furnished by the Underwriters to the Issuers for
the purposes of Section 8 hereof.
12. Notices. All communications hereunder shall be in writing and,
-------
if sent to the Underwriters, shall be mailed, delivered or telecopied and
confirmed in writing to the Underwriters c/o BT ▇▇▇▇. ▇▇▇▇▇ Incorporated, One
Bankers Trust Plaza, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Finance Department, and with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇. If sent to the
Issuers, shall be mailed, delivered or telecopied confirmed in writing, to
Alliance Imaging, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and with copies to ▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP, ▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, and
Irell & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇.
13. Successors. This Agreement shall inure to the benefit of and
----------
be binding upon the Underwriters, the Issuers and their respective successors
and legal representatives, and nothing expressed or mentioned in this Agreement
is intended or
-33-
shall be construed to give any other person any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained; this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (i) the indemnities of the
Issuers contained in Section 8 of this Agreement shall also be for the benefit
of any person or persons who control the Underwriters within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act and (ii) the indemnities
of the Underwriters contained in Section 8 of this Agreement shall also be for
the benefit of the directors of the Issuers, their officers who have signed the
Registration Statement and any person or persons who controls the Issuers within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act. No
purchaser of Securities from the Underwriters will be deemed a successor because
of such purchase.
14. Entire Agreement. This Agreement constitutes the entire
----------------
agreement among the parties hereto and supersedes all prior agreements,
understandings and arrangements, oral or written, among the parties hereto with
respect to the subject matter hereof.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
--------------
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAW.
16. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement among the Issuers and
the Underwriters.
Very truly yours,
ISSUER:
ALLIANCE IMAGING, INC.
By:
================================
Name:
Title:
GUARANTORS:
ALLIANCE IMAGING OF OHIO, INC.
By:
================================
Name:
Title:
ALLIANCE IMAGING OF MICHIGAN, INC.
By:
================================
Name:
Title:
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ROYAL MEDICAL HEALTH SERVICES, INC.
By:
================================
Name:
Title:
ALLIANCE IMAGING OF CENTRAL GEORGIA, INC.
By:
================================
Name:
Title:
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The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
BT ALEX. BROWN INCORPORATED
By:____________________________
Name:
Title:
SALOMON BROTHERS INC
By:____________________________
Name:
Title:
Exhibit A
Subsidiaries
------------
[To be provided by ▇'▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇]
Exhibit B
Underwriter Principal Amount of Notes
----------- -------------------------
Fixed Rate Notes Floating Rate Notes
---------------- -------------------
BT ▇▇▇▇. ▇▇▇▇▇ Incorporated
Salomon Brothers Inc
Exhibit C
---------
Form of Opinion of ▇'▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
---------------------------------------------------
1. To the best of our knowledge, there is no action, suit, proceeding
or investigation pending or threatened against or affecting any of Alliance or
the Guarantors, any of their respective subsidiaries or any of their respective
properties or assets in any court or before any governmental authority or
arbitration board or tribunal that seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge any of the Transactions.
2. Assuming due authorization, execution and delivery by Alliance and
the Guarantors, the Indenture is the valid and legally binding agreement of
Alliance and each of the Guarantors, enforceable against Alliance and each of
the Guarantors in accordance with its terms, except that the enforcement thereof
may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
3. Assuming due authorization, execution and delivery by Alliance,
the Notes will conform in all material respects to the description thereof in
the Registration Statement and will be the legally valid and binding obligations
of Alliance, enforceable against Alliance in accordance with their terms, except
that the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor may be
brought (regardless of whether such enforcement is considered in a proceeding in
equity or at law).
-2-
4. Assuming due authorization, execution and delivery by the
Guarantors, the Guarantees will conform in all material respects to the
description thereof in the Registration Statement and will be the legally valid
and binding obligations of each of the Guarantors, enforceable against each of
the Guarantors in accordance with their terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
5. To the best of our knowledge, no consent, approval, authorization
or order of, or filing with any or governmental entity or body is required for
the issuance and sale of the Securities by Alliance and the Guarantors pursuant
to the Underwriting Agreement or pursuant to the Indenture, except (i) such as
have been obtained or made under the Act or the Trust Indenture Act or
otherwise, and (ii) such as may be required under state securities laws in
connection with the purchase and distribution of the Securities by the
Underwriters.
6. The Indenture has been duly qualified under the Trust Indenture
Act.
7. The Registration Statement has become effective under the Act and,
to the best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Act and no proceedings therefor
have been initiated by the Commission. Any required filing of the Prospectus
pursuant to Rule 424(b) under the Act has been made in accordance with Rules
424(b) and 430A under the Act.
8. The Registration Statement and the Prospectus comply as to form in
all material respects with the applicable requirements for registration
statements on Form S-2 under the Act, the Trust Indenture Act and the rules and
regulations of the Commission thereunder; it being understood, however, that we
express no opinion with respect to the financial statements,
-3-
schedules and other financial and statistical data included in or omitted from
the Registration Statement or Prospectus.
9. To the best of our knowledge, there are no contracts or documents
of a character required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement that are not
described or filed as required.
10. The Transactions conform in all material respects to the
descriptions thereof in the Prospectus.
11. Neither the Company nor any of its subsidiaries is subject to
registration and regulation as an "investment company" or a company "controlled
by" and "investment company" within the meaning of the Investment Company Act
and the rules and regulations of the Commission thereunder.
12. Neither the issuance or sale of the Notes nor the application of
the net proceeds thereof as set forth in the Prospectus will violate Regulation
G, T, U or X of the Board of Governors of the Federal Reserve System.
In addition, we have participated in conferences with officers and
other representatives of Alliance and the Guarantors, representatives of the
independent public accountants for Alliance and the Guarantors and your
representatives, at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although we are not passing
upon, and do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus and have not made any independent check or verification thereof,
during the course of such participation (relying as to materiality to a large
extent upon the statements of officers and other representatives of Alliance and
the Guarantors), no facts came to our attention that caused us to believe that
the Registration Statement, at the time it became effective, 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, as
-4-
of its date or as of the Closing Date, contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; it being understood that we express no opinion with
respect to the financial statements, schedules and other financial and
statistical data included in or omitted from the Registration Statement or the
Prospectus or with respect to the Form T-1.
Exhibit D
---------
Form of Opinion of Irell & ▇▇▇▇▇▇▇ LLP
--------------------------------------
1. Each of Alliance, Alliance of Ohio, Inc. and Alliance of Michigan,
Inc. (collectively, the "Delaware Companies") are corporations duly organized,
validly existing and in good standing under the laws of the State of Delaware
with corporate power and authority to own or lease their properties and to
conduct their businesses as now conducted as described in each Prospectus.
2. Each of Alliance and the Guarantors has the corporate power and
authority to execute, deliver and perform its respective obligations under the
Underwriting Agreement, the Indenture and the Securities and to issue the
Securities to be issued by it pursuant to the Indenture.
3. The Indenture has been duly authorized, executed and delivered by
the Delaware Companies.
4. The Notes have been duly and validly authorized by Alliance for
issuance.
5. The Guarantees have been duly authorized by each of Alliance
Imaging of Ohio, Inc. and Alliance Imaging of Michigan, Inc.
6. The Underwriting Agreement has been duly authorized, executed and
delivered by the Delaware Companies; the execution and delivery of the
Underwriting Agreement, the Indenture and the Securities by Alliance and the
Guarantors, and the issuance and sale of the Securities pursuant to the
Underwriting Agreement and the performance of the Transactions do not and will
not conflict with or constitute or result in a breach or a default under (or an
event which with notice or passage of time or both would constitute a default
under) or violation of or cause an acceleration of any obligation under, or on
any properties or assets of Alliance or any Guarantor with respect to (i) the
terms or provisions of any Contract set
-2-
forth as an exhibit to such counsel's opinion, except for any such conflict,
breach, violation, default or event which would not, individually or in the
aggregate, have a Material Adverse Effect, or (ii) the certificate of
incorporation or bylaws of the Delaware Companies, or (iii) any statute, rule or
regulation known to such counsel to be of general applicability to, or any
judgment, decree or order known to such counsel to be applicable to, Alliance or
any Guarantor or any of their respective properties or assets, except for any
such conflict, breach or violation which would not, individually or in the
aggregate, have a Material Adverse Effect.
7. To the best of our knowledge, there are no contracts or documents
of a character required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement that are not
described or filed as required.
In addition, we have participated in conferences with officers and
other representatives of Alliance and the Guarantors, representatives of the
independent public accountants for Alliance and the Guarantors and your
representatives, at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although we are not passing
upon, and do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus and have not made any independent check or verification thereof,
during the course of such participation (relying as to materiality to a large
extent upon the statements of officers and other representatives of Alliance and
the Guarantors), no facts came to our attention that caused us to believe that
the Registration Statement, at the time it became effective, 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, as of its date or as of the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made,
-3-
not misleading; it being understood that we express no opinion with respect to
the financial statements, schedules and other financial and statistical data
included in or omitted from the Registration Statement or the Prospectus or with
respect to the Form T-1.
