EXHIBIT 4
BT ALEX. XXXXX INCORPORATED
000 XXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
November 25, 1997
X.X. Childs Equity Partners, L.P.
0 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
Attention : Xxxxxx Xxxxx
Re: Universal Hospital Services, Inc.
Recapitalization Financing
Gentlemen:
In connection with our engagement letter dated the date hereof
(the "Agreement"):
You hereby agree to indemnify and hold harmless us and our
affiliates and our and their respective directors, officers, partners,
agents, employees, representatives and control persons (collectively, the
"Indemnified Persons") from and against any losses, claims, damages,
liabilities or expenses incurred by them (including reasonable fees and
disbursements of counsel) which (i) are related to or arise out of (A)
actions taken or omitted to be taken (including any untrue statements made
or any statements omitted to be made) by you or (B) actions taken or
omitted to be taken by an Indemnified Person with your consent or in
conformity with your actions or omissions or (ii) are otherwise related to
or arise out of or in connection with, in each case, the proposed
transactions giving rise to or contemplated by the Agreement, including
modifications or future additions to the Agreement, or execution of letter
agreements or other related activities, and to promptly reimburse us and
any other Indemnified Person for all expenses (including reasonable fees
and disbursements of counsel) as incurred by us or any such Indemnified
Person in connection with investigating, preparing or defending any such
action or claim, whether or not in connection with pending or threatened
litigation in which we or any other Indemnified Person is a party. You will
not, however, be responsible for any losses, claims, damages, liabilities
or expenses of any Indemnified Person pursuant to clause (ii) of the
preceding sentence to the extent same have resulted from the gross
negligence, bad faith or recklessness of such Indemnified Person. You also
agree that if any indemnification sought by an Indemnified Person pursuant
to the Agreement is for any reason held by a court to be unavailable, then
(whether or not we are the Indemnified Person) you and we will contribute
to the losses, claims, liabilities, damages and expenses for which such
indemnification is held unavailable in such proportion as is appropriate to
reflect the relative benefits received by you on the one hand and by us on
the other hand from the actual or proposed transactions giving rise to or
contemplated by the Agreement, and also the relative fault of you, on the
one hand, and of us and the Indemnified Person, on the other. For purposes
of determining the relative benefits to you on the one hand, and us on the
other hand under the proposed transactions giving rise to or contemplated
by the Agreement, such benefits shall be deemed to be in the same
proportion as (i) the total value paid or proposed to be paid by you
pursuant to the transactions, whether or not consummated, for which we are
providing services as provided in the Agreement bears to (ii) the fees paid
or proposed to be paid by you or on your behalf to us in connection with
the proposed transactions giving rise to or contemplated by the Agreement.
No person found liable for a fraudulent misrepresentation shall be entitled
to contribution from any person who is not also found liable for such
fraudulent misrepresentation. Your indemnity, reimbursement and
contribution obligations under this agreement shall be in addition to any
rights that we or any other Indemnified Person may have at common law or
otherwise.
If any action, suit, proceeding or investigation is commenced,
as to which an Indemnified Person proposes to demand indemnification, it
shall notify you with reasonable promptness; provided, however, that any
failure by such Indemnified Person to notify you shall not relieve you from
your obligations hereunder (except to the extent that you are materially
prejudiced by such failure to promptly notify). You shall be entitled to
assume the defense of any such action, suit, proceeding or investigation,
including the employment of counsel reasonably satisfactory to the
Indemnified Person. The Indemnified Person shall have the right to counsel
of its own choice to represent it, but the fees and expenses of such
counsel shall be at the expenses of such Indemnified Person unless (i) you
have failed promptly to assume the defense and employ counsel reasonably
satisfactory to the Indemnified Person in accordance with the preceding
sentence or (ii) the Indemnified Person shall have been advised by counsel
that there exists actual or potential conflicting interests between you and
such Indemnified Person, including situations in which one or more legal
defenses may be available to such Indemnified Person that are different
from or additional to those available to you; provided, however, that you
shall not, in connection with any one such action or proceeding or separate
but substantially similar actions or proceedings arising out of the same
general allegations be liable for fees and expenses of more than one
separate firm of attorneys at any time for all Indemnified Persons; and
such counsel shall, to the extent consistent with its professional
responsibilities, cooperate with you and any counsel designated by you.
You further agree that you will not, without our prior written
consent, 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 may be sought hereunder (whether or not we or any
other Indemnified Person is an actual or potential party to such claim,
action, suit or proceeding) unless such settlement, compromise or consent
includes an unconditional release of us and each other Indemnified Person
from all liability and obligations arising therefrom. You further agree
that neither we, nor any of our affiliates, nor any directors, officers,
partners, agents, employees, representatives or control persons of us or
any of our affiliates shall have any liability to you arising out of or in
connection with the proposed transactions giving rise to or contemplated by
the Agreement except for such liability for losses, claims, damages,
liabilities, or expenses to the extent they have resulted from our or their
gross negligence, bad faith or recklessness. This agreement may not be
amended or modified except in writing. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF 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 THE AGREEMENT IS HEREBY WAIVED. YOU HEREBY SUBMIT TO THE
NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED
IN THE CITY OF NEW YORK IN CONNECTION WITH ANY DISPUTE RELATED TO THE
AGREEMENT OR ANY MATTERS CONTEMPLATED HEREBY.
The parties hereto acknowledge that, to the extent that
Securities (as defined in the Agreement) are issued, the indemnification
provisions contained in the underwriting or purchase agreement relating to
such issuance entered into by BTAB and the Company (each as defined in the
Agreement) shall govern the rights of the parties relating to
indemnification arising from such issuance and this agreement shall not be
applicable to such situation.
These provisions shall remain in full force and effect
following the expiration or termination of the Agreement. The provisions
hereof shall inure to the benefit of and be binding upon our successors and
assigns, and the successors and assigns of each other Indemnified Person.
Very truly yours,
BT ALEX. XXXXX INCORPORATED
By: /s/ Xxxxxxxx Xxxxxxxxx
_______________________
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President
AGREED TO AND ACCEPTED as of the date first written above:
X.X. CHILDS EQUITY PARTNERS, L.P.
By: X.X. Childs Advisors, L.P.,
its General Partner
By: X.X. Childs Associates, L.P.,
its General Partner
By: X.X. Childs Associates, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
_________________________
Title: Vice President
