EXHIBIT 2.3
APOLLO INVESTMENT FUND III, L.P.
c/o Apollo Advisors II, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
July 22, 1997
Alliance Imaging, Inc.
0000 XxxxxxXxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
RE: AGREEMENT AND PLAN OF MERGER
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Ladies and Gentlemen:
1. Reference is made to the Agreement and Plan of Merger between
Newport Investment LLC (the "Investor") and Alliance Imaging, Inc. (the
"Company") dated the date hereof (the "Agreement").
2. In connection with the Agreement, the undersigned ("Guarantor")
hereby unconditionally and irrevocably guaranties (the "Guaranty") the payment
in full, when due (including amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11
U.S.C. (S) 362(a)), of all obligations ("Obligations") of the Investor pursuant
to the terms and subject to the conditions of the Agreement; provided, however,
that in no event will the liability of the undersigned hereunder exceed $37
million. This guaranty is a guaranty of payment and not of collection.
3. Upon the earlier of (i) the effectiveness of the merger of a
corporation to be formed and wholly owned by the Investor with and into the
Company as contemplated by the Agreement and (ii) the termination of the
Agreement pursuant to the terms thereof (excluding Section 8.1(h) thereof and
provided that this clause (ii) shall not apply in any case to the extent that
the Investor has breached or is in default of any representation, warranty or
covenant contained in the Merger Agreement), the obligations of the undersigned
hereunder shall terminate without any further action by any party.
4. Guarantor makes the following representations and warranties which
shall be continuing representations and warranties so long as any Obligations
shall remain unpaid.
(a) The execution and delivery of this Guaranty are not, and the
performance of this Guaranty will not be, in contravention of, or in conflict
with, (i) any agreement, indenture or undertaking to which Guarantor is a party
or by which Guarantor or any of the property of Guarantor is or may be bound or
affected, or (ii) any order, writ, injunction, decree or demand of any court or
other governmental or regulatory authority. The execution and delivery of this
Guaranty are not, and the performance of this Guaranty will not, cause any
security interest, lien or other encumbrance to be created or imposed upon any
such property.
(b) Guarantor hereby acknowledges and warrants that Guarantor has
derived or expects to derive a financial advantage from the Agreement.
5. This is a continuing guaranty of the Obligations and shall remain
effective so long as any of the Investor's obligations, financial or otherwise,
under the Agreement are outstanding.
6. The liability of Guarantor hereunder is independent of the
obligation of the Investor and a separate action or separate actions may be
brought and prosecuted against Guarantor whether or not any action is brought or
prosecuted against the Investor or whether the Investor is joined in any such
action or actions. The liability of Guarantor hereunder is independent of and
not in consideration of or contingent upon the liability of any other person
under any similar instrument and the release of, or cancellation by, any signer
of a similar instrument shall not act to release or otherwise affect the
liability of Guarantor hereunder. Guarantor waives the benefit of any statute
of limitations affecting Guarantor's liability hereunder or the enforcement
thereof. Any payment by the Investor or other circumstance which operates to
toll any statute of limitations applicable to the Investor shall also operate to
toll the statute of limitations applicable to Guarantor.
7. Guarantor waives the right to require the Company to proceed
against the Investor or any other person liable on the Obligations, to proceed
against or exhaust any security held by the Investor or any other person, or to
pursue any other remedy in the Company's power whatsoever and Guarantor waives
the right to have the property of the Investor first applied to the discharge of
the Obligations. Guarantor waives any defense arising by reason of any
disability or other defense of the Investor or by reason of the cessation from
any cause whatsoever (including without limitation, any intervention or omission
by the Company) of the liability, either in whole or in part, of the Investor to
the Company for the Obligations. Guarantor hereby waives, to the fullest extent
permitted by law, (a) any defense arising as a result of any election by the
Company, in any proceeding instituted under the Bankruptcy Code, under Section
1111(b) (2) of the Bankruptcy Code, and (b) any defense based on any borrowing
or grant of a security interest under Section 364 of the Bankruptcy Code.
8. Guarantor waives all presentments, demands for performance,
notices of nonperformance, protests, notices of protest, notices of dishonor and
notices of acceptance of this Guaranty and of the existence, creation or
incurring of new or additional loans. Guarantor assumes the responsibility for
being and keeping itself informed of the financial condition of the Investor and
of all other circumstances bearing upon the risk of nonpayment of the
Obligations which diligent inquiry would reveal, and agrees that the Company
shall have no duty to advise Guarantor of information known to it regarding such
condition or any such circumstances.
9. Notwithstanding anything to the contrary herein contained, this
Guaranty shall continue to be effective if at any time, payment, or any part
thereof, of any or all of the Obligations is rescinded or must otherwise be
restored or returned by the Company upon the insolvency, bankruptcy or
reorganization of the Investor or otherwise, all as though such payment had not
been made. Notwithstanding any modification, discharge or extension of the
Obligations or any amendment, modification, stay or cure of the Company's rights
which may occur in any bankruptcy or reorganization case or proceeding
concerning the Investor whether permanent or temporary, and whether assented to
by the Company, Guarantor hereby agrees that Guarantor shall be obligated
hereunder to pay the Obligations and discharge Guarantor's other obligations in
accordance with the terms of this Guaranty in effect on the date hereof.
Guarantor understands and acknowledges that by virtue of this Guaranty,
Guarantor has specifically assumed any and all risks of a bankruptcy or
reorganization case or proceeding with respect to Investor.
THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES GOVERNING
CONFLICTS OF LAWS, AND ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM,
ACTION, SUIT OR PROCEEDING ARISING OUT OF OR CONTEMPLATED BY THIS LETTER IS
HEREBY WAIVED.
If you are in agreement with the foregoing, please sign a copy of this
letter where indicated below.
Very truly yours,
APOLLO INVESTMENT FUND III, L.P.
By: Apollo Advisors II, L.P.
By: Apollo Capital Management
II, Inc.
By: _______________________
Name:
Title:
Acknowledged and agreed to
as of the date first above
written:
ALLIANCE IMAGING, INC.
By:
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Name:
Title:
