EXHIBIT (A)(3)
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
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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
Indem-
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nified 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
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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 ac-
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tual 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
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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.
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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
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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
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Title: Vice President
