EXHIBIT 1
ALLIANCE IMAGING, INC.
$170,000,000 [ ]% Senior Subordinated Notes due 2005
UNDERWRITING AGREEMENT
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[ ], 1997
BT Xxxx. Xxxxx Incorporated
Xxxxx Xxxxxx Inc.
Xxxxxxx Xxxxxxxx Inc
c/o BT Xxxx. Xxxxx 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") $170,000,000 aggregate principal amount of its Senior Subordinated
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Notes due 2005 (the "Notes"). The Notes will be issued pursuant to an indenture
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(the "Indenture") to be entered into among Alliance, as issuer, the Guarantors
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(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 SMT Acquisition Corp., a Delaware corporation,
Royal Medical Health Services, Inc., a Pennsylvania corporation, and Alliance
Imaging of Central Georgia, Inc., a Georgia corporation (collectively, the
"Guarantors"), each of which is a wholly owned subsidiary of Alliance. The
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Notes and the Guarantees are collectively referred to as the "Securities".
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Alliance 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
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and into Alliance with Alliance being the surviving corporation. The
Recapitalization will be consummated concurrently with the Offering.
Immediately following the Recapitalization, Alliance will acquire (the
"SMT Acquisition") SMT Health Services Inc., a Delaware corporation ("SMT"), by
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merging SMT Acquisition Corp. into Three Rivers Holding Corp., a Delaware
corporation and the parent corporation of SMT. In connection with the
Recapitalization and the SMT Acquisition, Alliance will execute an agreement
(the "Credit Agreement") with Bankers Trust Company, as agent, and certain
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lenders thereto to provide Alliance a loan commitment of up to $200 million.
The Offering, the Recapitalization, the SMT Acquisition and the
related borrowings under the Credit Agreement are collectively referred to as
the "Transactions". The Securities, the Indenture and this Agreement are
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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 warrant
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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- ), and one or more amendments to such registration statement
also have been so filed. If such registration statement has been declared
effective, either (i) an additional registration statement relating to the
Securities may have been filed with the Commission pursuant to Rule 462(b)
("Rule 462(b)") (the "Rule 462(b) Registration Statement") under the Act
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and, if so filed, has become effective
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upon filing pursuant to Rule 462(b) and the Securities all have
been duly registered under the Act pursuant to the initial
registration statement and, if applicable, the additional registration
statement or (ii) such an additional registration statement is
proposed to be filed with the Commission pursuant to Rule 462(b) and will
become effective upon filing pursuant to Rule 462(b) and upon such filing
the Securities will all have been duly registered under the Act pursuant to
the initial registration statement and such additional registration
statement. 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,
including any 462(b) 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 Statement" means such registration
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statement, as amended at the time when it was or is declared effective,
including any 462(b) Registration Statement 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"
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means each prospectus, subject 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 included in the Registration
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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
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
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 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.
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(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, the subsidiaries of Alliance listed on Exhibit A
attached hereto (each, a "Subsidiary" and collectively, the "Subsidiaries")
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and, to the best knowledge of Alliance, SMT, are duly incorporated, 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,
to the best knowledge of Alliance, SMT, 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
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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 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.
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(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 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
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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 of them
is subject (collectively, the "Contracts"), which default would have a
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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 (y) 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 SMT, 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 and, to the best knowledge
of Alliance, of SMT at the dates and for the periods to which they relate,
and have been prepared in ac-
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cordance 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 and KPMG Peat Marwick LLP, which have audited
certain of such financial statements and schedules as set forth in their
reports included in the Registration Statement and the Prospectus, are
independent public accounting firms 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, to the best
knowledge of Alliance, SMT 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, the Guarantors and, to the best knowledge of Alliance,
SMT 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 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, the
Guarantors and, to the best knowledge of
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Alliance, SMT is in compliance with and not subject to liability under
applicable Environmental Laws (as defined below), (B) each of Alliance, the
Guarantors and, to the best knowledge of Alliance, SMT 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, any of the Guarantors or, to the best
knowledge of Alliance, against SMT 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, any of the Guarantors or, to
the best knowledge of Alliance, by SMT, (E) none of Alliance, the
Guarantors or, to the best knowledge of Alliance, SMT, 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 comparable state law, and (F) no
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property or facility of Alliance, any of the Guarantors or, to the best
knowledge of Alliance, of SMT, 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 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
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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, to the best knowledge of Alliance, of SMT, or
any of the Guarantors which is pending or, to the knowledge of Alliance,
threatened.
(x) Each of Alliance, the Guarantors and, to the best knowledge of
Alliance, SMT, 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, the Guarantors and, to the best knowledge of
Alliance, SMT, 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,
charges, encumbrances or restrictions would not, individually or in the
aggregate, have a Material Adverse Effect.
(z) None of Alliance, the Guarantors or, to the best knowledge of
Alliance, SMT, 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
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Alliance or any of the Guarantors makes or 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.
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(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, the Guarantors and, to the best knowledge
of Alliance, from SMT, 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 Effect. Neither Alliance or any of the
Guarantors knows of any actual or proposed additional tax assessments for
any fiscal period against Alliance, the Guarantors nor SMT, 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.
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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 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 Xxxxxx Xxxxxx & Xxxxxxx, 00
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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
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certificates 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 with
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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
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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 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. 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 Commis-
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sion 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
-------- -------
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.
(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
-16-
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 recent
financial statements appearing in the Registration Statement and the
Prospectus.
(j) Upon consummation of the SMT Acquisition, the Issuers will cause
SMT to enter into a supplemental indenture to the Indenture providing for
the guarantee by SMT of the Notes on a senior subordinated basis.
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 transac-
-17-
tions, 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 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 ef-
-18-
fective as of the time of execution hereof, such registration statement or
such amendment shall have been declared effective not later than 12:00
noon, 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 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.
(b) The Underwriters shall have received an opinion in form and
substance satisfactory to the Underwriters, dated the Closing Date, of
X'Xxxxxxxx Xxxxx 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 & Xxxxxxx LLP, general 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 Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters, with
respect to the sufficiency of certain corporate proceedings and other legal
matters
-19-
relating to this Agreement, and such other related matters as the
Underwriters may require. In rendering such opinion, Xxxxxx Xxxxxx &
Xxxxxxx 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, Xxxxxx Xxxxxx & Xxxxxxx
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, and KPMG Peat Marwick LLP,
independent public accountants for SMT, letters dated, respectively, the
date hereof and the Closing Date, in form and substance satisfactory to the
Underwriters.
(h) The Underwriters shall have received an opinion from Xxxxxxxx,
Xxxxx, Xxxxxx & Xxxxx, Inc. in form and substance satisfactory to the
Underwriters, regarding the solvency of Alliance at the Closing Date and
immediately after giving effect to the Transactions and the other
transactions contemplated thereby.
(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, the SMT Acquisition 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 and SMT 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 ex-
-20-
pected 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 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 and SMT shall have, to the extent
each is 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.
-21-
(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 and SMT or any of their counsels and
such other certificates, documents and opinions reasonably obtainable by
Alliance and SMT pursuant to the Transactions.
(q) On the Closing Date, the Certificate of Merger with respect to the
SMT Acquisition shall have been filed with the Secretary of State of the
State of Delaware.
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,
Newco and SMT 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 (A) the Registration Statement or any amendment thereto
or any Preliminary Prospectus or any Prospectus or any amendment or
supplement thereto or (B) any application or other document, or any
amendment or supplement thereto, executed by any of the Issuers or based
upon written information furnished by or on behalf of any of the Issuers
filed in any jurisdiction in order to qualify the Securities under the
securities or "Blue Sky" laws thereof or filed with the Commission or
-22-
any securities association or securities exchange (each, an "Application")
or
(ii) the omission or alleged omission to state, in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or any
Prospectus or any amendment or supplement thereto, or any Application, 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. 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
-23-
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 any
Application or (ii) the omission or the alleged omission to state therein a
material fact required to be stated in any Registration Statement or any
amendment thereto, any Preliminary Prospectus or any Prospectus or any amendment
or supplement thereto, or any Application, or necessary to make the statements
therein (in the case of any Preliminary Prospectus, any Prospectus or any
amendment or supplement thereto or any Application, 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 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
-24-
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 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 indemni-
-25-
fied 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 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
-26-
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 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
-27-
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 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), in the business, condition (financial or other), results of
operations or prospects of Alliance and the Subsidiaries, taken as a whole,
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 Under-
-28-
writers, makes it impracticable or inadvisable to proceed 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 Xxxx. Xxxxx Incorporated, One Bankers
Trust Plaza, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Finance Department, and with a copy to Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxx. If sent to the Issuers,
shall be mailed, delivered or telecopied confirmed in writing, to Alliance
Imaging, Inc., 0000 Xxxxx XxxxxxXxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx
00000, and with copies to X'Xxxxxxxx Graev & Karabell, LLP, 00 Xxxxxxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxx, and Irell &
Xxxxxxx LLP, 000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxx.
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 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 indemni-
-29-
ties 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:
SMT ACQUISITION CORP.
By:
-----------------------------------
Name:
Title:
ROYAL MEDICAL HEALTH SERVICES, INC.
By:
-----------------------------------
Name:
Title:
-2-
ALLIANCE IMAGING OF CENTRAL
GEORGIA, INC.
By:
-----------------------------------
Name:
Title:
-3-
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
BT ALEX. BROWN INCORPORATED
By:
------------------------------
Name:
Title:
XXXXX XXXXXX INC.
By:
------------------------------
Name:
Title:
SALOMON BROTHERS INC
By:
------------------------------
Name:
Title:
Exhibit A
Subsidiaries
------------
[To be provided by X'Xxxxxxxx Xxxxx & Xxxxxxxx]
Exhibit B
Underwriter Principal Amount of Notes
----------- -------------------------
BT Alex. Brown Incorporated $
Xxxxx Xxxxxx Inc.
Xxxxxxx Xxxxxxxx Inc
_________________
$170,000,000
Exhibit C
---------
Form of Opinion of X'Xxxxxxxx Xxxxx & Xxxxxxxx, LLP
---------------------------------------------------
[To be amended]
1. Each of Alliance and the Guarantors have been duly incorporated and
are validly existing and in good standing under the laws of their respective
states of incorporation 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. 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.
4. The Indenture has been duly authorized, executed and delivered by
Alliance and the Guarantors and (assuming due authorization, execution and
delivery by the Trustee) 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).
5. The Notes have been duly and validly authorized by Alliance for
issuance and, when executed and authenticated in accordance with the terms of
the Indenture and delivered to and paid for by the Underwriters in accordance
with the terms
-2-
of the Underwriting Agreement, 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).
6. The Guarantees have been duly authorized by each of the Guarantors
for issuance and, when executed and delivered in accordance with the terms of
the Indenture, 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).
7. The Underwriting Agreement has been duly authorized, executed and
delivered by Alliance and the Guarantors; 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 known to such counsel to which Alliance or
any Guarantor is a party, 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
Alliance or any Guarantor, 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, ex-
-3-
cept for any such conflict, breach or violation which would not, individually or
in the aggregate, have a Material Adverse Effect.
8. 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.
9. The Indenture has been duly qualified under the Trust Indenture
Act.
10. 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.
11. 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, schedules and other
financial and statistical data included in or omitted from the Registration
Statement or Prospectus.
12. 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.
13. The Transactions conform in all material respects to the
descriptions thereof in the Prospectus.
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 SMT and your
representatives, at which the contents of the Registration Statement and the
-4-
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, 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.
