EXHIBIT 4.4.12
ALLIANCE IMAGING, INC.
TENTH AMENDMENT
TO NOTE PURCHASE AGREEMENT
This TENTH AMENDMENT TO NOTE PURCHASE AGREEMENT (this "TENTH AMENDMENT")
is dated as of November 6, 1996 and entered into by and among Alliance
Imaging, Inc., a Delaware corporation (the "COMPANY"), and the holders listed
on the signature page hereto (each a "HOLDER" and together the "HOLDERS"),
and is made with reference to that certain Note Purchase Agreement dated as
of April 14, 1989, as amended by that certain First Amendment to Note
Purchase Agreement dated as of September 20, 1990, that certain Second
Amendment to Note Purchase Agreement dated as of June 3, 1991, that certain
Third Amendment to Note Purchase Agreement dated as of December 1, 1991, that
certain Fourth Amendment to Note Purchase Agreement dated as of December 31,
1992, that certain Fifth Amendment to Note Purchase Agreement dated as of
June 30, 1993, that certain Sixth Amendment to Note Purchase Agreement dated
as of March 18, 1994, that certain Seventh Amendment to Note Purchase
Agreement dated as of December 31, 1994, that certain Eighth Amendment to
Note Purchase Agreement dated as of December 31, 1994, that certain Ninth
Amendment ("NINTH AMENDMENT") to Note Purchase Agreement dated as of April
15, 1996, and those certain letter agreements dated April 25, 1995 concerning
Atlantic/Gulf Imaging, Inc. and dated June 28, 1996 concerning Sun MRI
Services, Inc. (as so amended, the "PURCHASE AGREEMENT"), by and among the
Company and previous holders of the Notes. Capitalized terms used herein
without definition shall have the same meanings herein as set forth in the
Purchase Agreement.
RECITALS
WHEREAS, the Holders have purchased, effective as of the same date as
this Tenth Amendment and conditioned upon the execution and delivery by the
Company of this Tenth Amendment, all of the right, title and interest of the
previous holders of the Notes in and to such Notes (the "PURCHASE
TRANSACTION"); and
WHEREAS, the Company and the Holders desire to (i) amend certain
covenants contained in the Purchase Agreement and to make certain other
amendments as set forth below, and (ii) set forth their agreement on certain
other matters specified below;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as
follows:
SECTION 1. AGREEMENTS CONCERNING VOLUNTARY
PREPAYMENTS
1.1 OPTIONAL PREPAYMENT AT CLOSING.
In the event that the Company makes a voluntary prepayment of principal
on the Notes as permitted by Section 6.01 of the Purchase Agreement effective
as of the closing of the Purchase Transaction (the "EFFECTIVE DATE"), Holders
agree that, notwithstanding anything to the contrary in said Section 6.01,
one dollar ($1.00) of principal amount of the Notes shall be retired for each
sixty-six and 6,315,911/10,000,000 cents ($.666315911) of cash prepayment,
without payment of accrued interest on the principal amount prepaid and
without payment of any other amount otherwise called for under said Section
6.01; PROVIDED, HOWEVER, that the maximum face amount of Notes that may be
prepaid pursuant to this provision is $5,308,355.42. Notwithstanding Section
6.04 of the Purchase Agreement, any prepayment pursuant to this provision
will be applied to the latest date(s) of mandatory prepayments pursuant to
Section 6.02 of the Purchase Agreement and of the Notes. The Company shall
be under no obligation to make a voluntary prepayment as described in this
Section 1.1.
1.2 DATE FOR INTEREST PAYMENTS; OTHER OPTIONAL PREPAYMENTS.
(a) As of the Effective Date, the Company shall issue or cause to be
issued to Holders new promissory note(s) evidencing the obligations of the
Company under the Purchase Agreement and the Notes, as amended hereby; among
other things, such promissory note(s) will provide for the monthly payment of
interest on the last day of each month, commencing October 31, 1996 (each, an
"INTEREST PAYMENT DATE"). Further, in addition to the provisions of Section
1.1 above, in the event that the Company at any time and from time to time
following the Effective Date timely makes a voluntary prepayment of principal
corresponding to an Interest Payment Date as indicated under column A on the
attached SCHEDULE A (each, a "VOLUNTARY MONTHLY PREPAYMENT"), then Holders
agree, notwithstanding anything to the contrary in the Purchase Agreement or
the Notes, that they shall credit to principal, in addition to the amount of
the Voluntary Monthly Prepayment, an aggregate amount of $16,726.90 for each
such Voluntary Monthly Prepayment timely made, as indicated under column D on
the attached SCHEDULE A. Further, notwithstanding anything to the contrary
in the Purchase Agreement or the Notes, each Voluntary Monthly Prepayment or
other voluntary prepayment of principal on the Notes (i) shall be deemed a
prepayment entirely of principal and (ii) shall be credited against the
earliest date(s) of mandatory prepayments pursuant to Section 6.02 of the
Purchase Agreement and the Notes (i.e., each such prepayment shall reduce the
amount of mandatory prepayment(s) otherwise required to be made pursuant to
Section 6.02 of the Purchase Agreement prior to giving effect to this Tenth
Amendment, applying voluntary
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prepayments to the earliest date(s) of such mandatory prepayments otherwise
required). The provisions of the preceding sentence shall be deemed an
amendment of Section 6.04 of the Purchase Agreement.
(b) For purposes of paragraph (a) of this Section 1.2, a Voluntary
Monthly Prepayment shall be deemed timely made provided that it is received
by a Holder within five (5) Business Days of the first day of each month
immediately following the corresponding Interest Payment Date. The Company
shall not be obligated to make Voluntary Monthly Prepayments or any other
voluntary prepayments of principal pursuant to this Section 1.2.
(c) In addition to the provisions of Section 1.1 and Section 1.2(b)
above and provided that the Company has made the voluntary prepayment
referred to in Section 1.1 above in the maximum permitted amount, the Company
shall be entitled to prepay the principal of the Notes in whole by making a
payment equal to the LESSER of (I) the payment amount in accordance with
Section 6.01 of the Purchase Agreement as in effect prior to the
effectiveness of this Tenth Amendment, and (II) the Notional Payoff Amount
(such amount being the "FULL PAYOFF AMOUNT"). "NOTIONAL PAYOFF AMOUNT" means
the Applicable Percentage of the remaining unpaid principal amount of a note
(the "NOTIONAL OBLIGATION") in the initial notional principal amount of
$18,000,000 as of the Effective Date bearing an annual interest rate of
10.00%, compounded monthly, after applying thereto all payments actually made
under the Notes after the Effective Date (i.e., payments of both interest and
principal), applying such payments first to interest on the Notional
Obligation and then to principal of the Notional Obligation, with negative
amortization reflected, if applicable. "APPLICABLE PERCENTAGE" means 102%
for any prepayment made on or before October 31, 1997 and 101% for any
prepayment made thereafter. In addition, subject to the same provisos as
indicated in the first sentence of this Section 1.2(c), the Company shall be
entitled to prepay the principal of the Notes in part; in the case of partial
prepayment, the amount of the Notes retired shall equal the same proportion
of the remaining face amount of the Notes as the amount of prepayment bears
to the Full Payoff Amount, if the Notes were being fully prepaid at that
time. Notwithstanding the foregoing, in the event that any prepayment of the
Notes pursuant to this Section 1.2(c) is accomplished with funding, in whole
or in part, provided by one of the Holders or any Affiliate thereof, then the
Applicable Percentage with respect to such Holder shall be equal to 100%.
(d) The voluntary prepayment provisions of Sections 1.1, 1.2(b) and 1.2(c)
above fully replace and restate Section 6.01 of the Purchase Agreement as in
effect prior to the Effective Date. Further, Section 6.03 of the Purchase
Agreement as in effect prior to the Effective Date is hereby restated in its
entirety as follows:
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"The Company may prepay the Notes in whole or in part in accordance with
the provisions of Section 6.01 hereof (in the case of any such prepayment
pursuant to Section 1.2(c) of the Tenth Amendment dated as of November 6,
1996 to Note Purchase Agreement between the Company and Holder (the "TENTH
AMENDMENT"), PROVIDED that the Company provides at least five (5) Business
Days notice of its intention to make such prepayment, which notice shall
specifically indicate that such prepayment is being made under that
provision)."
(e) Notwithstanding anything to the contrary in Section 6.07 of the
Purchase Agreement, any prepayment of Notes pursuant to Section 6.07 shall be
treated as a voluntary prepayment under Section 1.2(c) hereof.
SECTION 2. ADDITIONAL AMENDMENTS TO THE PURCHASE AGREEMENT
2.1 MANDATORY PREPAYMENTS.
The requirement to make mandatory prepayments on the Notes described in
clauses (i) and (ii) in Section 6.02 of the Purchase Agreement (such clauses
having been added to the Purchase Agreement pursuant to, and as further
described in, Sections 1.1, 1.4 and 1.6 of the Ninth Amendment) is hereby
eliminated.
2.2 COLLATERAL POOL.
The requirement in the Purchase Agreement, including, without
limitation, in the second sentence of Section 9.04(a)(i) thereof, that any
and all leases and use contracts relating to the Eligible First Lien
Equipment or other collateral contained in the Collateral Pool (the "EXCLUDED
COLLATERAL") be included therein is hereby eliminated. Holders shall, from
time to time, execute such instruments and take such further actions as may
be reasonably requested by the Company to cause and evidence the removal from
the Collateral Pool, as it exists on the Effective Date and from time to time
thereafter, of the Excluded Collateral. Holders further agree that, to the
extent that they or any of their respective Affiliates have an interest in
collateral owned by the Company or any Affiliate thereof pursuant to separate
collateral agreements or instruments (e.g., pursuant to separate equipment
financing arrangements), and to the extent that such separate agreements or
instruments prohibit or restrict additional liens on the applicable
collateral, then, notwithstanding the provisions of such collateral
agreements or instruments, the Company shall be entitled to include the
property constituting such collateral in the Collateral Pool as Eligible
Second Lien Equipment or otherwise; and Holders further agree to execute such
instruments and take such actions, and to cause their respective Affiliates
to execute such instruments and take such actions, from time to
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time, as may be reasonably requested by the Company to effect and evidence
the provisions of this sentence.
2.3 ASSIGNMENT TO CERTAIN ENTITIES.
The following text is hereby added to Section 15.05 of the Purchase
Agreement:
"Notwithstanding anything in this Note Purchase Agreement or the Notes to
the contrary, each holder of the Notes agrees that it shall not sell to,
transfer or assign, in any form of transaction, any of the Notes or any
interest therein (A) prior to January 31, 1997 (except for any transfer or
assignment to an Affiliate of the holder), or (B) following January 31,
1997, to any holder (whether as of the Effective Date or any date
thereafter) of the Company's 7.50% Senior Subordinated Debentures due 2005,
or the Company's Series A Cumulative Preferred Stock, including in each
case any Affiliate thereof; PROVIDED, HOWEVER, that for the avoidance of
doubt, the restriction referred to in clause (B) shall not be deemed to
apply to any transaction wherein the Notes are included in a securitization
vehicle in the ordinary course of a holder's business, and securities
representing an interest in the securitized pool are sold to investors.
Prior to selling, transferring or assigning, in any form of transaction,
any of the Notes or any interest therein, each holder of the Notes agrees
to provide at least three (3) Business Days' prior written notice to the
Company, to enable the Company to determine whether such proposed
transaction would violate the provisions of this Section 15.05."
2.4 SUBORDINATION PROVISIONS.
Each holder of the Notes agrees that it will not amend, modify or waive, or
agree to amend, modify or waive, any provision of Section 11 of the Subordinated
Debentures Purchase Agreement, without, in each instance, first obtaining the
written consent of the Company to the same.
2.5 NEGATIVE AND MAINTENANCE COVENANTS.
(a) Clause (i) of Section 10.02 of the Purchase Agreement is hereby
amended and restated as follows:
"(i) Subject to the limitations set forth in Section
10.03(d) hereof, any Lien created to secure any Indebtedness
incurred or assumed after the Seventh Amendment Effective
Date to pay all or any part of the purchase price of an
improvement to or upgrade
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of a Unit owned by the Company or a Subsidiary,
PROVIDED that (i) any such Lien shall be confined
solely to the improved or upgraded Unit subject to
such Lien; PROVIDED, HOWEVER, that in the case of a
Unit owned by the Company or a Subsidiary that is,
at the time of acquisition of an improvement or
upgrade to a Unit, already subject to a Lien in
favor of the same secured party financing the
purchase price of such improvement or upgrade, such
Lien securing the Indebtedness relating to the
newly-improved or upgraded Unit may extend to the
Unit already owned and such Lien securing the
Indebtedness relating to the Unit already owned may
extend to the newly-improved Unit; PROVIDED,
FURTHER, that notwithstanding the immediately
preceding proviso no such Lien shall extend to any
Unit as to which (A) the purchase price thereof (and
of any improvement thereto or upgrade thereof) is
paid in full and (B) there is outstanding no
Indebtedness incurred to finance such purchase
price, it being understood that the
cross-collateralization permitted by the immediately
preceding proviso shall immediately cease and
terminate upon payment of the purchase price (or
related purchase money Indebtedness) of each Unit
and any improvement to or upgrade thereof, and (ii)
any such Lien shall be created within six months
after the completion or installation of such
improvement or upgrade;".
(b) Clause (d) of Section 10.03 of the Purchase Agreement is hereby
amended and restated as follows:
"(d) Subject to the limitations on incurrence of Capital
Expenditures set forth in Section 10.08 hereof, the Company
or any Subsidiary may become and remain liable with respect
to Indebtedness incurred to acquire equipment (including CT
Scanners and MRI Units and related additions, parts and
improvements) secured by Liens permitted under Sections
10.02(e), 10.02(i) or 10.02(j) hereof;".
(c) Clause (f) of Section 10.03 of the Purchase Agreement is hereby
amended and restated as follows:
"(f) Any Subsidiary (provided that such Subsidiary has duly
executed a Guaranty in accordance with the
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terms of this Note Purchase Agreement) may become and
remain liable with respect for Debt for Money Borrowed
of such Subsidiary owing to the Company or to a
Wholly-Owned Subsidiary consisting of (i) Indebtedness
arising out of an Investment by the Company or such
Wholly-Owned Subsidiary as permitted by Section
10.04(a) through (c) or (ii) short-term intercompany
operating advances which are settled promptly (and not
less than monthly) to the extent the applicable debtor
has available cash to settle such balances;".
(d) Clause (g) of Section 10.03 of the Purchase Agreement is hereby
amended and restated as follows:
"(g) In addition to (a) through (f) above, the Company or
any Subsidiary may incur and remain liable with respect to
other Indebtedness not to exceed an aggregate amount of
$5,000,000 at any time outstanding;".
(e) The text of Section 10.08 of the Purchase Agreement is hereby amended
and restated as follows:
"The Company will not, and will not permit any of its
Subsidiaries to, make Capital Expenditures, unless, after
including such Capital Expenditures in the aggregate amount
of Capital Expenditures incurred by the Company and its
Subsidiaries during the current Fiscal Year, the aggregate
Capital Expenditures for such Fiscal Year, in the case of
the Fiscal Year ending December 31, 1996, do not exceed
$30,000,000, or in the case of any other Fiscal Year, do not
exceed $25,000,000; PROVIDED, HOWEVER, that the Company or
any of its Subsidiaries may dispose of equipment and within
180 days purchase replacement equipment with only the net
incremental amount being deemed to be a Capital Expenditure;
PROVIDED, FURTHER, that to the extent the Company receives
credit against the purchase price of newly-acquired
equipment as a result of a trade-in of currently-owned
equipment, the amount of such credit shall not be included
in determining the amount of Capital Expenditures permitted
to be incurred hereunder; and PROVIDED, FURTHER, that if the
amount of permitted Capital Expenditures for any Fiscal Year
is not fully
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utilized, then the unutilized portion (up to
50% of the permitted amount for such Fiscal Year) may be
carried forward and made in the following Fiscal Year, in
addition to the amount otherwise permitted for such
following Fiscal Year.
For purposes of this Section 10.08 the incurrence of a
Capital Expenditure shall be deemed to have occurred when
the Company (or any of its Subsidiaries) enters into a
binding commitment to purchase the applicable equipment as
evidenced by a written agreement or accepted purchase order
between the Company and the manufacturer or seller of such
equipment."
(f) The reference to "ninety (90) days" in Section 10.12 of the Purchase
Agreement is hereby changed to "one hundred eighty (180) days". Further, the
phrase "after the Closing Date" in clause (i) of said Section is hereby amended
to read "after the Effective Date of the Tenth Amendment". Further, in the
event of any prepayment or redemption of Notes as provided in Section 10.12,
such prepayment or redemption shall be treated as a voluntary prepayment and
subject to the provisions of Section 1.2(c) of this Tenth Amendment.
(g) The text of Section 10.17 of the Purchase Agreement is hereby amended
and restated as follows:
"The Company will not, and will not permit any Subsidiary
to, create or otherwise acquire any Subsidiary, unless such
newly created or acquired Subsidiary shall have executed a
counterpart to the Guaranty."
(h) Section 10.04 of the Purchase Agreement is hereby amended by striking
the word "and" before clause (g) and adding thereto a new clause (h) reading as
follows: "; and (h) Investments where the consideration paid by the Company
consists of equity securities of the Company, to the extent that consideration
was or is paid in that form." In addition, Section 10.04 of the Purchase
Agreement is hereby amended by adding a new final sentence thereto reading as
follows: "For purposes of computing the amount subject to the $5,000,000
limitation in clause (a) above, (I) there shall be excluded Investments where
the consideration paid by the Company consists of equity securities of the
Company, to the extent that consideration was or is paid in that form, and (II)
there shall be included Investments made only from and after the Effective Date
of the Tenth Amendment, and not Investments made prior thereto."
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(i) The text of Section 10.14 of the Purchase Agreement is hereby amended
by adding thereto as a new last sentence the following: "Notwithstanding the
foregoing, for the purposes of this Section 10.14, there shall be excluded from
the coverage of "Long-Term Leases" and "Consolidated Rental Obligations" any
lease or other contract or commitment, and payments required thereunder, with
respect to MRI, CT or other medical diagnostic equipment."
(j) The Company and Holders hereby agree that Sections 10.05, 10.06,
10.07, 10.09 and 10.11 are deleted from the Purchase Agreement.
2.6 REPORTING REQUIREMENTS.
Section 7(a) of the Purchase Agreement is hereby amended by striking the
entire text beginning with "(i)" and through the end of that Section and
inserting in substitution therefor the following: "the Company's Quarterly
Report on Form 10-Q as filed with the Securities and Exchange Commission".
Section 7(b) of the Purchase Agreement is hereby amended by striking the entire
text beginning with "(i)" and through the end of that Section and inserting in
substitution therefor the following: "the Company's Annual Report on Form 10-K
and related Annual Report to Shareholders as filed with the Securities and
Exchange Commission". Section 7(c) and Section 7(d) of the Purchase Agreement
are hereby deleted. The heading of Section 7(e) of the Purchase Agreement is
hereby amended to read "SEC REPORTS; MAILINGS TO SHAREHOLDERS", and there is
hereby added at the end of existing Section 7(e) the following: "In addition,
(i) at the same time that the Company makes a mailing to its shareholders
generally and (ii) promptly after the Company issues a press release, the
Company shall provide a copy of the same to each registered holder of the
Notes." Section 7(g), Section 7(h), Section 7(j), Section 7(l), Section 7(m),
Section 7(o) and 7(p) of the Purchase Agreement are hereby deleted. The
penultimate paragraph of Section 7, immediately following Section 7(p), is
hereby amended and restated in its entirety as follows: "The Company will
furnish to each Eligible Holder, at the time it furnishes each set of financial
statements pursuant to paragraph (a) or (b) above, an Officers' Certificate to
the effect that no Event of Default has occurred and is continuing (or, if any
Event of Default has occurred and is continuing, describing the same in
reasonable detail, the period of existence thereof and describing the action
that the Company has taken and proposes to take with respect thereto)."
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1 FULL NOTE ISSUE.
The Company hereby represents and warrants that the Notes being purchased
by the Holders as of the Effective Date are all of the Notes issued as
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of December 31, 1994 in the aggregate initial principal amount of $27
million, and that such Notes constitute all of the Notes outstanding as of
the Effective Date. The Company further represents and warrants that, except
for the amendments referred to in the first paragraph of this Tenth
Amendment, the Company is not a party to, and does not otherwise have
knowledge of, any amendment, modification or waiver of or affecting the Note
Purchase Agreement dated as of April 14, 1989 pursuant to which the Notes
were originally issued.
3.2 ADDITIONAL REPRESENTATIONS AND WARRANTIES.
The Company represents, covenants and warrants as follows, as of the
Effective Date of this Tenth Amendment:
(a) The Company is a corporation duly organized and validly existing under
the laws of the State of Delaware. Each of the Company and its Subsidiaries has
all requisite corporate power and authority necessary to own its assets and
carry on its business as now being and as proposed to be conducted, and is
qualified to do business in each jurisdiction in which the nature of the
business conducted by it makes such qualification necessary and where failure so
to qualify would have a Material Adverse Effect.
(b) The financial statements included in the Company's Quarterly Report on
Form 10-Q for the period ending June 30, 1996 and Annual Report on Form 10-K for
the period ending December 31, 1995 are complete and correct and fairly present
the consolidated financial condition of the Company and its consolidated
Subsidiaries as at the respective dates thereof, and the consolidated results of
their operations for the fiscal periods ended on said dates (subject, in the
case of interim financial statements, to year-end audit adjustments), all in
accordance with GAAP (except, in the case of interim financial statements, as to
footnotes).
(c) Since June 30, 1996, the Company's authorized share capitalization has
not changed in any respect, and there have been no issuances, redemptions or
repurchases of any outstanding common or preferred shares of the Company, except
for sales of common shares pursuant to the exercise of stock options issued
pursuant to compensatory option plans of the Company disclosed in the Company's
proxy statement relating to its 1996 annual meeting of shareholders.
(d) The Company hereby reiterates in its entirety Section 3.05 of the
Purchase Agreement, such representation and warranty being deemed made as of the
Effective Date, except that the reference to Exhibit C therein is hereby changed
to SCHEDULE 3.2(d) attached hereto.
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(e) The Company hereby reiterates in its entirety Section 3.06 of the
Purchase Agreement, such representation and warranty being deemed made as of the
Effective Date, except that the last sentence thereof is hereby deleted.
(f) Attached hereto as SCHEDULE 3.2(f) is a true and complete list of the
outstanding debt for money borrowed of the Company and its Subsidiaries as of
September 30, 1996.
(g) The Company hereby reiterates in its entirety Section 3.08 of the
Purchase Agreement, such representation and warranty being deemed made as of the
Effective Date, except that the reference to 1993 therein is hereby changed to
1995.
(h) The Company hereby reiterates in its entirety Section 3.09 of the
Purchase Agreement, such representation and warranty being deemed made as of the
Effective Date, except that the reference therein to the exception for Exhibit H
is hereby deleted.
(i) The Company hereby reiterates in its entirety Section 3.11 of the
Purchase Agreement, such representation and warranty being deemed made as of the
Effective Date, except that the reference therein to the Confidential Memorandum
is hereby deleted.
(j) The Company hereby reiterates in its entirety Section 3.13 of the
Purchase Agreement, such representation and warranty being deemed made as of the
Effective Date, except that the reference therein to the exception for
Donaldson, Lufkin & Jenrette Securities Corporation is hereby deleted.
(k) The Company hereby reiterates in their entirety Sections 3.02, 3.10,
3.15, 3.16, 3.17, 3.19 and 3.20 of the Purchase Agreement, such representations
and warranties being deemed made as of the Effective Date.
SECTION 4. CONSIDERATION FOR AMENDMENT
As partial consideration for their activities in structuring the Purchase
Transaction and entering into this Tenth Amendment, the Company will issue to
DVI Financial Services Inc. ("DVI") and General Electric Company, a New York
corporation acting through GE Medical Systems ("GE"), effective as of the
Effective Date, warrants to purchase an aggregate of 125,000 shares of the
Company's common stock (75,000 to DVI and 50,000 to GE). The warrants will have
a term of three (3) years and an exercise price per share equal to $5.00, and
will be evidenced by a warrant certificate substantially in the form attached
hereto as EXHIBIT 1.
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SECTION 5. MISCELLANEOUS
5.1 REFERENCE TO AND EFFECT ON THE PURCHASE AGREEMENT.
(i) On and after the date of this Tenth Amendment, each reference in
the Purchase Agreement to "this Agreement", "hereunder", "hereof", "herein"
or words of like import referring to the Purchase Agreement, and each
reference in any other related documents to the "Purchase Agreement",
"thereunder", "thereof" or words of like import referring to the Purchase
Agreement shall mean and be a reference to the Agreement as amended to give
effect to the Tenth Amendment.
(ii) Except as specifically amended by this Tenth Amendment, the
Purchase Agreement shall remain in full force and effect and is hereby
ratified and confirmed.
(iii) The execution, delivery and performance of this Tenth Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of the
Holders under, the Purchase Agreement.
5.2 HEADINGS. Section and subsection headings in this Tenth Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Tenth Amendment for any other purpose or be given any substantive
effect.
5.3 APPLICABLE LAW. THIS TENTH AMENDMENT SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
5.4 COUNTERPARTS; EFFECTIVENESS. This Tenth Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document.
5.5 NO DEFAULTS. By its execution hereof, the Company represents and
warrants that, after giving effect to the amendments contained in this Tenth
Amendment, no Default or Event of Default exists under the Purchase Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Tenth Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
"COMPANY" ALLIANCE IMAGING, INC.
By: ______________________________
Title: ______________________________
"HOLDERS" DVI FINANCIAL SERVICES INC.
By: ______________________________
Title: ______________________________
GENERAL ELECTRIC COMPANY, A NEW YORK CORPORATION
ACTING THROUGH GE MEDICAL SYSTEMS
By: ______________________________
Title: ______________________________
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SCHEDULE A
COLUMN: A B C D E
Voluntary
Monthly Interest at Total Additional Remaining
Payment Principal 7.50% Monthly Credit to Principal
Date Prepayments Per Annum Payment Principal Balance
---- ----------- --------- ------- --------- -------
09/30/96 $20,091,644.58
11/30/96 0.00 251,145.56 251,145.56 0.00 20,091,644.58
12/31/96 208,965.22 125,572.78 334,538.00 16,726.90 19,865,952.46
01/31/97 210,375.80 124,162.20 334,538.00 16,726.90 19,638,849.76
02/28/97 211,795.19 122,742.81 334,538.00 16,726.90 19,410,327.68
03/31/97 213,223.45 121,314.55 334,538.00 16,726.90 19,180,377.32
04/30/97 214,660.64 119,877.36 334,538.00 16,726.90 18,948,989.78
05/31/97 216,106.81 118,431.19 334,538.00 16,726.90 18,716,156.07
06/30/97 217,562.02 116,975.98 334,538.00 16,726.90 18,481,867.14
07/31/97 219,026.33 115,511.67 334,538.00 16,726.90 18,246,113.91
08/31/97 220,499.79 114,038.21 334,538.00 16,726.90 18,008,887.22
09/30/97 221,982.45 112,555.55 334,538.00 16,726.90 17,770,177.87
10/31/97 223,474.39 111,063.61 334,538.00 16,726.90 17,529,976.58
11/30/97 224,975.65 109,562.35 334,538.00 16,726.90 17,288,274.04
12/31/97 226,486.29 108,051.71 334,538.00 16,726.90 17,045,060.85
01/31/98 228,006.37 106,531.63 334,538.00 16,726.90 16,800,327.58
02/28/98 229,535.95 105,002.05 334,538.00 16,726.90 16,554,064.73
03/31/98 231,075.10 103,462.90 334,538.00 16,726.90 16,306,262.73
04/30/98 232,623.86 101,914.14 334,538.00 16,726.90 16,056,911.97
05/31/98 234,182.30 100,355.70 334,538.00 16,726.90 15,806,002.77
06/30/98 235,750.48 98,787.52 334,538.00 16,726.90 15,553,525.39
07/31/98 237,328.47 97,209.53 334,538.00 16,726.90 15,299,470.02
08/31/98 238,916.31 95,621.69 334,538.00 16,726.90 15,043,826.81
09/30/98 240,514.08 94,023.92 334,538.00 16,726.90 14,786,585.83
10/31/98 242,121.84 92,416.16 334,538.00 16,726.90 14,527,737.09
11/30/98 243,739.64 90,798.36 334,538.00 16,726.90 14,267,270.55
12/31/98 245,367.56 89,170.44 334,538.00 16,726.90 14,005,176.09
01/31/99 247,005.65 87,532.35 334,538.00 16,726.90 13,741,443.54
02/28/99 248,653.98 85,884.02 334,538.00 16,726.90 13,476,062.66
03/31/99 250,312.61 84,225.39 334,538.00 16,726.90 13,209,023.15
04/30/99 251,981.61 82,556.39 334,538.00 16,726.90 12,940,314.65
05/31/99 253,661.03 80,876.97 334,538.00 16,726.90 12,669,926.71
06/30/99 255,350.96 79,187.04 334,538.00 16,726.90 12,397,848.86
07/31/99 257,051.44 77,486.56 334,538.00 16,726.90 12,124,070.51
08/31/99 258,762.56 75,775.44 334,538.00 16,726.90 11,848,581.05
09/30/99 260,484.37 74,053.63 334,538.00 16,726.90 11,571,369.78
10/31/99 262,216.94 72,321.06 334,538.00 16,726.90 11,292,425.94
11/30/99 263,960.34 70,577.66 334,538.00 16,726.90 11,011,738.71
12/31/99 265,714.63 68,823.37 334,538.00 16,726.90 10,729,297.17
01/31/00 267,479.89 67,058.11 334,538.00 16,726.90 10,445,090.38
02/29/00 269,256.19 65,281.81 334,538.00 16,726.90 10,159,107.30
03/31/00 271,043.58 63,494.42 334,538.00 16,726.90 9,871,336.82
04/30/00 272,842.14 61,695.86 334,538.00 16,726.90 9,581,767.77
05/31/00 274,651.95 59,886.05 334,538.00 16,726.90 9,290,388.92
06/30/00 276,473.07 58,064.93 334,538.00 16,726.90 8,997,188.95
07/31/00 278,305.57 56,232.43 334,538.00 16,726.90 8,702,156.48
-14-
SCHEDULE A
COLUMN: A B C D E
Voluntary
Monthly Interest at Total Additional Remaining
Payment Principal 7.50% Monthly Credit to Principal
Date Prepayments Per Annum Payment Principal Balance
---- ----------- --------- ------- --------- -------
08/31/00 280,149.52 54,388.48 334,538.00 16,726.90 8,405,280.06
09/30/00 282,005.00 52,533.00 334,538.00 16,726.90 8,106,548.16
10/31/00 283,872.07 50,665.93 334,538.00 16,726.90 7,805,949.19
11/30/00 285,750.82 48,787.18 334,538.00 16,726.90 7,503,471.47
12/31/00 287,641.30 46,896.70 334,538.00 16,726.90 7,199,103.26
01/31/01 289,543.60 44,994.40 334,538.00 16,726.90 6,892,832.76
02/28/01 291,457.80 43,080.20 334,538.00 16,726.90 6,584,648.06
03/31/01 293,383.95 41,154.05 334,538.00 16,726.90 6,274,537.22
04/30/01 295,322.14 39,215.86 334,538.00 16,726.90 5,962,488.17
05/31/01 297,272.45 37,265.55 334,538.00 16,726.90 5,648,488.82
06/30/01 299,234.94 35,303.06 334,538.00 16,726.90 5,332,526.98
07/31/01 301,209.71 33,328.29 334,538.00 16,726.90 5,014,590.37
08/31/01 303,196.81 31,341.19 334,538.00 16,726.90 4,694,666.66
09/30/01 305,196.33 29,341.67 334,538.00 16,726.90 4,372,743.43
10/31/01 307,208.35 27,329.65 334,538.00 16,726.90 4,048,808.18
11/30/01 309,232.95 25,305.05 334,538.00 16,726.90 3,722,848.33
12/31/01 311,270.20 23,267.80 334,538.00 16,726.90 3,394,851.23
01/31/02 313,320.18 21,217.82 334,538.00 16,726.90 3,064,804.15
02/28/02 315,382.97 19,155.03 334,538.00 16,726.90 2,732,694.27
03/31/02 317,458.66 17,079.34 334,538.00 16,726.90 2,398,508.71
04/30/02 319,547.32 14,990.68 334,538.00 16,726.90 2,062,234.49
05/31/02 321,649.03 12,888.97 334,538.00 16,726.90 1,723,858.56
06/30/02 323,763.88 10,774.12 334,538.00 16,726.90 1,383,367.77
07/31/02 325,891.95 8,646.05 334,538.00 16,726.90 1,040,748.92
08/31/02 328,033.32 6,504.68 334,538.00 16,726.90 695,988.70
09/30/02 330,188.07 4,349.93 334,538.00 16,726.90 349,073.73
10/31/02 332,347.27 2,181.73 334,529.00 16,726.46 0.00
-15-
THESE WARRANTS AND THE SHARES OF COMMON STOCK ISSUABLE UPON THEIR EXERCISE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED
UNDER APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED, SOLD,
ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS (i) A REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, SHALL HAVE BECOME EFFECTIVE WITH
RESPECT THERETO AND ALL APPLICABLE QUALIFICATIONS UNDER STATE SECURITIES LAWS
SHALL HAVE BEEN OBTAINED WITH RESPECT THERETO; OR (ii) EXEMPTIONS FROM SUCH
REGISTRATION AND ALL SUCH APPLICABLE QUALIFICATION REQUIREMENTS ARE AVAILABLE.
No. C-2 50,000 Warrants
Date of Issuance:
November 6, 1996
WARRANTS TO PURCHASE COMMON STOCK
OF ALLIANCE IMAGING, INC.
Warrant Certificate
THIS CERTIFIES THAT GENERAL ELECTRIC COMPANY, a New York
corporation acting through GE Medical Systems ("Original Warrant Holder") or
registered assigns is the registered owner of the number of warrants set forth
above (the "Warrants"), each of which entitles the owner thereof to purchase,
subject to the terms and conditions hereof, at any time prior to 5:00 P.M. (Los
Angeles time) on the Expiration Date (as hereinafter defined) at the principal
office of Alliance Imaging, Inc., a Delaware corporation (the "Company"), one
fully paid and non-assessable share of the Common Stock, $.01 par value ("Common
Stock"), of the Company, at a cash purchase price which shall initially be $5.00
per share (as such purchase price may be adjusted pursuant to the terms hereof,
the "Purchase Price") upon presentation and surrender of this Warrant
Certificate with the Form of Election to Purchase duly executed and accompanied
by payment of the Purchase Price in the manner specified herein. As provided
herein, the Purchase Price and the number of shares of Common Stock which may be
purchased upon the exercise of the Warrants evidenced by this Warrant
Certificate are, upon the happening of certain events, subject to modification
and adjustment. The holder or holders of these Warrants, whether the Original
Warrant Holder or registered assigns, shall be collectively referred to herein
as the "Holder."
1. FORM OF WARRANT CERTIFICATES. All certificates
representing the Warrants ("Warrant Certificates"), if any in addition to
this Warrant Certificate, which may hereinafter be issued and the forms of
election to purchase shares and of assignment that accompany such Warrant
Certificates shall be substantially in the form of this Warrant Certificate
and
-16-
may have such letters, numbers or other marks of identification or
designation and such legends (including, without limitation, a legend
referring to restrictions on resale by statutory underwriters), summaries or
endorsements printed thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Warrant Certificate, or as may
be required to comply with any law or with any rule or regulation made
pursuant thereto. All Warrant Certificates shall be executed on behalf of
the Company by its President or a senior or executive vice president.
2. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF WARRANT
CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN WARRANT CERTIFICATES.
Subject to the provisions of Section 11 hereof, this Warrant Certificate may be
transferred, split up, combined or exchanged for another Warrant Certificate or
Warrant Certificates, entitling the Holder to purchase a like number of shares
of Common Stock as the Warrant Certificate or Warrant Certificates surrendered
then entitled him to purchase; provided, however, that (i) any Warrant
Certificate with which this Warrant Certificate is combined shall have the same
terms as this Warrant Certificate, and (ii) notwithstanding anything in this
Warrant Certificate to the contrary, the Holder may transfer all or a portion of
its right, title and interest in and to the Warrants to another person or
entity. If the Holder desires to transfer, split up, combine or exchange any
Warrant Certificate, he or she shall make such request in writing delivered to
the Company, and shall surrender the Warrant Certificate or Warrant Certificates
to be transferred, split up, combined or exchanged at the principal office of
the Company. Thereupon, the Company shall have such new Warrant Certificate or
Warrant Certificates, as the case may be, signed as provided in Section 1 and
delivered to the person entitled thereto, as so requested. The Company may
require payment by the Holder of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer, split
up, combination or exchange of Warrant Certificates.
Upon receipt by the Company of evidence satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant Certificate, and, in
case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it (including with respect to the amount of such indemnity or
security), and reimbursement by the Holder to the Company of all reasonable
expenses incidental thereto, and upon surrender and cancellation of this Warrant
Certificate if mutilated, the Company will make and deliver a new Warrant
Certificate of like tenor to the Holder in lieu of the Warrant Certificate so
lost, stolen, destroyed or mutilated. Notwithstanding anything in the foregoing
to the contrary, so long as the Holder is the Original Warrant Holder, the
Company will not require security (other than its own indemnification referred
to above) in connection with any such issuance of replacement Warrant
Certificates.
3. SUBSEQUENT ISSUE OF WARRANT CERTIFICATES. Subsequent to
the issuance of this Warrant Certificate, additional Warrant Certificates shall
be issued, as necessary, in connection with (a) any transfer, combination, split
up or exchange of Warrants pursuant to Section 2 hereof, (b) the replacement of
mutilated, destroyed, lost or stolen Warrant Certificates pursuant to Section 2
hereof, (c) the partial exercise of any Warrant Certificate to evidence the
unexercised portion of such Warrant Certificate, pursuant to Section 4 hereof,
and (d) the exercise of the Company's election set forth in Section 8(e) hereof.
-17-
4. EXERCISE OF WARRANTS; PURCHASE PRICE.
(a) Subject to the final sentence of this paragraph (a), the
Holder of this Warrant Certificate may exercise the Warrants evidenced hereby in
whole or in part at any time upon surrender of the Warrant Certificate with the
form of election to purchase attached hereto duly executed and accompanied by
payment of the Purchase Price for each share of Common Stock as to which the
Warrants are exercised, at or prior to 5:00 p.m. (Los Angeles time) on the
Expiration Date. The "Expiration Date" shall be the date that is three (3)
years from the date of the issuance of these Warrants. The Purchase Price shall
initially be $5.00 but shall be subject to adjustment as provided in Section 8
hereof, and shall be payable only in the consideration specified in
paragraph (b) immediately below.
(b) Upon receipt of this Warrant Certificate, with the form
of election to purchase duly executed, accompanied by payment, in cash, or by
certified check or bank draft payable to the order of the Company, or by
surrender of a debt instrument of the Company held by the Holder (valued at the
outstanding principal amount thereof plus, at the option of the Holder, any
accrued and unpaid interest thereon) or a preferred stock instrument of the
Company held by the Holder (valued at the liquidation preference thereof,
including, without duplication, at the option of the Holder, any accumulated and
unpaid dividends thereon), of the Purchase Price for the shares to be purchased
and an amount equal to any applicable transfer tax, if any, the Company shall
thereupon promptly deliver to or upon the order of the Holder of a Warrant
Certificate (i) certificates for the number of whole shares of Common Stock to
be purchased, registered in such name or names as may be designated by the
Holder and (ii) when appropriate, the amount of cash to be paid in lieu of
issuance of fractional shares.
(c) In case the Holder of this Warrant Certificate shall
exercise less than all the Warrants evidenced hereby, a new Warrant Certificate
evidencing Warrants equivalent to the Warrants remaining unexercised shall be
issued by the Company to the Holder or to his duly authorized assigns, subject
to the provisions of Section 11 hereof. In addition, if the Holder exercises
Warrants using debt or preferred stock instruments of the Company as hereinabove
provided, the Company shall return balance certificates representing such
instruments to the Holder unless the full amount of such instruments is tendered
as payment of the Purchase Price.
(d) All shares of Common Stock issued upon the exercise of
Warrants shall be deemed to be Registrable Securities within the meaning of that
certain Registration Rights Agreement dated as of December 31, 1994 among the
Company and the Noteholders and Debentureholders named therein, with the same
registration and other rights afforded to other Registrable Securities covered
thereby.
5. CANCELLATION AND DESTRUCTION OF WARRANT CERTIFICATE.
Upon surrender of this Warrant Certificate for the purpose of exercise (in whole
or in part), exchange, substitution or transfer, this Warrant Certificate shall
be cancelled, and no Warrant Certificates shall be issued in lieu thereof except
as expressly permitted by any of the provisions of this Warrant Certificate. If
the Company purchases or acquires Warrants, the Company shall cancel and retire
the Warrant Certificates evidencing such Warrants.
-18-
6. RESERVATION AND AVAILABILITY OF SHARES OF COMMON STOCK.
The Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued shares of Common Stock, the number
of shares of Common Stock that will be sufficient to permit the exercise in full
of all outstanding Warrants.
The Company covenants and agrees that it will take all such
action as may be necessary to ensure that all shares of Common Stock delivered
upon the exercise of Warrants shall, at the time of delivery of the certificates
for such shares (subject to payment of the Purchase Price and compliance with
all other provisions of this Warrant Certificate), be duly and validly
authorized and issued and fully paid and nonassessable shares.
The Company further covenants and agrees that it will pay when
due and payable any and all federal and state transfer taxes and charges which
may be payable in respect of the issuance or delivery of Warrant Certificates or
of any shares of Common Stock upon the exercise of Warrants. The Company shall
not, however, be required (i) to pay any tax or taxes based upon the income of
the Holder or any tax or taxes which may be payable in respect of any transfer
involved in the transfer or delivery of Warrant Certificates or the issuance or
delivery of certificates for Common Stock in a name other than that of the
Holder or (ii) to issue or deliver any certificates for shares of Common Stock
upon the exercise of any Warrants until any such tax shall have been paid (any
such tax being payable by the Holder of the Warrant Certificate at the time of
surrender) or until it has been established to the Company's satisfaction that
no such tax is due.
7. COMMON STOCK RECORD DATE. Each person in whose name any
certificate for shares of Common Stock is issued upon the exercise of the
Warrants shall for all purposes be deemed to have become the holder of record of
the Common Stock represented thereby, and such certificate shall be dated on the
exercise date, which is the date upon which the Warrant Certificate evidencing
such Warrants was duly surrendered and payment of the Purchase Price (and any
applicable transfer taxes) was made; PROVIDED, HOWEVER, that if such exercise
date is a date upon which the Common Stock transfer books of the Company are
closed, such person shall be deemed to have become the record holder of such
shares on, and such certificate shall be dated, the next succeeding business day
on which the Common Stock transfer books of the Company are open.
The Holder, as such, shall not be entitled to vote or receive
dividends or be deemed for any purpose the holder of Common Stock or of any
other securities of the Company which may at any time be issuable on the
exercise of the Warrants, nor shall anything contained in this Warrant
Certificate be construed to confer upon the Holder, as such, any of the rights
of a shareholder of the Company or any right to vote upon any matter submitted
to shareholders at any meeting thereof, or to give or withhold consent to any
corporate action (whether upon any recapitalization, issuance of stock,
reclassification of stock, change of par value, consolidation, merger,
conveyance, or otherwise) or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise, until the Warrants shall have
been exercised as provided in this Warrant Certificate.
8. ADJUSTMENT OF PURCHASE PRICE, NUMBER OF SHARES OR NUMBER
OF WARRANTS. The Purchase Price and the number of shares covered by this
Warrant Certificate
-19-
are subject to adjustment from time to time upon the occurrence of the events
enumerated in this Section 8.
(a) In case the Company shall at any time after the date of
the issuance of this Warrant Certificate (i) declare a dividend on the Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock into a greater number of shares, (iii) combine the outstanding Common
Stock into a smaller number of shares, or (iv) issue any shares of its capital
stock in a reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger), the Purchase
Price in effect at the time of the record date for such dividend, or such
issuance, or of the effective date of such subdivision, combination,
distribution or reclassification, and the number and kind of shares of capital
stock issuable on such date shall be proportionately adjusted so that upon the
exercise after such time of any Warrant, the Holder shall be entitled to receive
the aggregate number and kind of shares of capital stock which, if such Warrant
had been exercised immediately prior to such date and at a time when the Common
Stock transfer books of the Company were open, the Holder would have owned upon
such exercise and been entitled to receive by virtue of such dividend,
subdivision, combination, distribution or reclassification, subject to the
provisions of Section 8(b) hereof. Such adjustment shall be made successively
whenever any event listed above shall occur.
(b) Notwithstanding anything in this Section 8 to the
contrary, no adjustment in the Purchase Price shall be required unless such
adjustment, together with any amount being carried forward as hereinafter
provided, would require an increase or decrease of at least 1% in such price;
provided, however, that any adjustments which by reason of this Section 8(b) are
not required to be made shall be carried forward and taken into account in any
subsequent adjustment and shall not, in any event, be lost by passage of time or
otherwise. All calculations under this Section 8 shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the case may be.
Notwithstanding the first sentence of this Section 8(b), any adjustment required
by this Section 8 shall be made no later than the earlier of one year from the
date of the transaction which mandates such adjustment or the expiration of the
right to exercise any Warrant.
(c) In the event that at any time, as a result of an
adjustment made pursuant to Section 8(a) hereof, the Holder shall become
entitled to receive any shares or units of capital stock of the Company other
than shares of Common Stock upon the exercise or conversion of Warrants,
thereafter the number of such other shares or units so receivable upon exercise
of the Warrants shall be subject to adjustment from time to time in a manner and
on terms as nearly equivalent as practicable to the provisions with respect to
the Common Stock contained in Section 8(a) hereof, and the provisions of this
Warrant Certificate with respect to the shares of Common Stock shall apply on
like terms to any such other shares or units.
(d) Irrespective of any adjustments in the Purchase Price or
the number of shares of Common Stock issuable upon the exercise of Warrants,
this Warrant Certificate or Warrant Certificates thereafter issued may continue
to express the Purchase Price and the number of shares stated in this Warrant
Certificate and the Purchase Price and such number of shares specified thereon
shall be deemed to have been so adjusted.
-20-
(e) The Company may elect to adjust the number of Warrants,
in substitution for any adjustment in the number of shares of Common Stock
purchasable upon the exercise of the Warrants as provided in Section 8(a)
hereof, such that the total number of shares of Common Stock issuable upon
exercise of the Warrants is the same as if such adjustment had been made but
such that each of the Warrants outstanding after such adjustment of the number
of Warrants is exercisable for one share of Common Stock. The Company shall
notify the Holder in writing of such election. Upon each adjustment of the
number of Warrants pursuant to this subsection (e), the Company shall as
promptly as practicable cause to be distributed to the Holder Warrant
Certificates evidencing, subject to Section 11, the additional or substitute
Warrants to which the Holder shall be entitled as a result of such adjustment;
or, at the option of the Company, shall cause to be distributed to the Holder in
substitution and replacement for the Warrant Certificates held by the Holder
prior to the date of adjustment, and upon surrender thereof, if required by the
Company, new Warrant Certificates evidencing all the Warrants to which the
Holder shall be entitled after such adjustment. Warrant Certificates so to be
distributed shall be issued in the manner provided for herein (and shall bear
the adjusted Purchase Price, if applicable) and shall be registered in the name
of the Holder.
(f) In any case in which this Section 8 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuing to the Holder of any Warrant exercised after such record date
the shares of Common Stock and other capital stock of the Company, if any,
issuable upon such exercise over and above the shares of Common Stock and other
capital stock of the Company, if any, issuable upon such exercise on the basis
of the Purchase Price in effect prior to such adjustment; PROVIDED, HOWEVER,
that the Company shall deliver to the Holder a due bill or other appropriate
instrument evidencing the Holder's right to receive such additional shares upon
the occurrence of the event requiring such adjustment.
9. CERTIFICATION OF ADJUSTED PURCHASE PRICE AND NUMBER OF
SHARES ISSUABLE. Whenever the Purchase Price and the number of shares of Common
Stock issuable upon the exercise of each Warrant are adjusted as provided in
Section 8 above, the Company shall provide notice to the Holder in writing
setting forth the Purchase Price as so adjusted, the number of shares of Common
Stock issuable upon the exercise of each Warrant as so adjusted, and a brief
statement of the facts accounting for such adjustment to the Holder. Failure to
give such notice, or any defect therein, shall not affect the legality or
validity of any action referred to in Section 8 hereof.
10. CONSOLIDATION, MERGER OR SALE OF ASSETS; CERTAIN
DISTRIBUTIONS. If (i) the Company shall at any time consolidate with or merge
with or into another corporation and (ii) the Common Stock is exchanged,
cancelled or reclassified in connection with such transaction, the Holder will
thereafter receive, upon the exercise hereof in accordance with the terms of
this Agreement, the securities, property or cash to which the holder of the
number of shares of Common Stock deliverable upon the exercise of the Warrants
immediately prior to such transaction would have been entitled upon such
consolidation or merger, and the Company shall take such steps in connection
with such consolidation or merger as may be necessary to assure that the
provisions hereof shall thereafter be applicable, as nearly as reasonably may
be, in relation to any securities or property
-21-
thereafter deliverable upon the exercise of the Warrants. A sale or lease of
all or substantially all the assets of the Company for a consideration (apart
from the assumption of obligations) consisting primarily of securities shall
be deemed a consolidation or merger for the purposes of clause (i) of the
first sentence of this Section 10. The provisions of this Section 10 shall
similarly apply to successive mergers or consolidations or sales or other
transfers. Further, in the event that the Company proposes to make a
distribution of assets or properties of the Company to the holders of its
Common Stock (excluding non-liquidating cash dividends being made out of
earnings for the current or immediately preceding fiscal year, and excluding
any distribution for which there is an antidilution adjustment pursuant to
Section 8(a) above), the Company shall provide the holders of the Warrants
with written notice at least twenty (20) days prior to the earlier of the
date for such distribution or the record date therefor, in order to enable
the holders of the Warrants to exercise the Warrants prior to the making of
the distribution or the record date therefor.
11. FRACTIONAL WARRANTS AND FRACTIONAL SHARES.
(a) Notwithstanding an adjustment pursuant to Section 8(e)
hereof in the number of Warrants, the Company shall not be required to issue
Warrant Certificates which evidence fractional Warrants. If the Company so
elects, in lieu of such fractional Warrants, there shall be paid to the Holder
to whom such fractional Warrants would otherwise be issuable, an amount in cash
equal to the same fraction of the current market value of a whole Warrant (as
determined in good faith by the Board of Directors of the Company).
(b) Notwithstanding an adjustment pursuant to Section 8(a)
hereof in the number of shares covered by a Warrant, the Company shall not be
required to issue fractions of shares upon exercise of the Warrants or to
distribute certificates which evidence fractional shares. In lieu of fractional
shares, at the Company's election, there shall be paid to the Holder at the time
Warrants are exercised as herein provided an amount in cash equal to the same
fraction of the current market value of a share of Common Stock (as determined
in good faith by the Board of Directors of the Company).
(c) The Holder, by the acceptance of the Warrant, expressly
waives his right to receive any fractional Warrant or any fractional share upon
exercise of a Warrant.
12. RIGHT OF ACTION. All rights of action in respect of this
Warrant Certificate are vested in the Holder.
13. AGREEMENT OF WARRANT CERTIFICATE HOLDERS. The Holder of
this Warrant Certificate by accepting the same consents and agrees with the
Company and with every other holder of a Warrant Certificate that:
(a) the Warrant Certificates are transferable only on the
registry books of the Company if surrendered at the principal office of the
Company; and
(b) the Company may deem and treat the person in whose name
each Warrant Certificate is registered as the absolute owner thereof and of the
Warrants evidenced thereby (notwithstanding any notations of ownership or
writing on the Warrant Certificates made by anyone other than the Company) for
all purposes whatsoever, and the
-22-
Company shall not be affected by any notice to the contrary.
14. NOTICES. Notices or demands authorized by this Warrant
Certificate to be given or made by the Holder to the Company shall be
sufficiently given or made if made in writing and shall be delivered by personal
service or telegram, telecopier or registered or certified mail (if such service
is not available, then by first class mail), postage prepaid, to such address as
may be designated to the Holders from time to time by the Company and which
shall initially be:
Alliance Imaging, Inc.
3111 No. Tustin Avenue, Suite 150
Orange, California 92665
Attention: Chief Financial Officer
Telecopier No. (714) 921-5678
Notices or demands authorized by this Warrant Certificate to be given or made by
the Company to the Holder shall be sufficiently given or made if made in writing
and shall be delivered by personal service or telegram, telecopier or registered
or certified mail (if such service is not available, then by first-class mail),
postage prepaid, addressed to the Holder at the address of the Holder as shown
on the registry books of the Company. Any notice hereunder sent by registered
or certified mail shall be deemed to have been given three (3) days after the
date on which it is mailed. All other notices shall be deemed given when
received. No objection may be made to the manner of delivery of any notice
actually received in writing by an authorized agent of a party.
15. SUPPLEMENTS AND AMENDMENTS. This Warrant Certificate,
together with other agreements being executed and delivered simultaneously
herewith, constitutes the Company's and the Holder's entire agreement with
respect to the subject matter hereof and supersedes all agreements,
representations, warranties, statements, promises and understandings, whether
oral or written, with respect to the subject matter hereof. This Warrant
Certificate may be amended, altered or modified only by a writing signed by the
Company and the Holder.
16. SUCCESSORS AND ASSIGNS. All the covenants and provisions
of this Warrant Certificate by or for the benefit of the Company or the Holder
shall bind and inure to the benefit of their respective successors and assigns.
This Warrant Certificate and the Warrants represented hereby are assignable, in
whole or in part, at the option of the Holder.
17. BENEFITS OF THIS AGREEMENT. Nothing in this Warrant
Certificate shall be construed to give to any person or entity other than the
Company and the Holder any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive benefit of the
Company and the Holder.
18. GOVERNING LAW. This Warrant Certificate has been
negotiated and issued in the State of California, concerns a California issuer,
and all questions with respect to the Warrant Certificate and the rights and
liabilities of the Company and the Holder shall be governed by the laws of that
state, regardless of the choice of laws provisions of California or any other
jurisdiction. Any and all disputes between the Company and the Holder
-23-
which may arise pursuant to this Warrant Certificate shall be heard and
determined before the appropriate federal or state court located in Orange
County, California. The Company and the Holder acknowledge that each such
court has the jurisdiction to interpret and enforce the provisions of this
Warrant Certificate and the parties waive any and all objections that they
may have as to venue in any of the above courts.
19. DESCRIPTIVE HEADINGS. Descriptive headings of the
several Sections of this Warrant Certificate are inserted for convenience only
and shall not control or affect the meaning or construction of any of the
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Warrant Certificate as of the date first set forth above.
ALLIANCE IMAGING, INC.
By:
---------------------------------
Its:
--------------------------------
WARRANT HOLDER
------------------------------------
By:
---------------------------------
Its:
--------------------------------
-24-
ASSIGNMENT
(To be executed by the Holder if such
Holder desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED _________________________________________
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint
__________________________ attorney, to transfer the within Warrant
Certificate on the books of the within-named Company, with full power of
substitution.
Dated ______________
Signature ___________________________________
NOTICE
The signature to the foregoing Assignment must correspond to
the name as written upon the face of this Warrant Certificate in every
particular, without alteration or enlargement or any change whatsoever.
-25-
ELECTION TO PURCHASE
(To be executed if the Holder desires
to exercise the Warrant Certificate)
To: ALLIANCE IMAGING, INC.
The undersigned hereby irrevocably elects to exercise
______________________ Warrants represented by this Warrant Certificate to
purchase the shares of Common Stock issuable upon the exercise of such Warrants
and requests that certificates for such shares be issued in the name of:
(Please print name and address and insert
social security or other identifying number)
If such number of Warrants shall not be all the Warrants evidenced by this
Warrant Certificate, a new Warrant Certificate for the balance remaining of such
Warrants shall be registered in the name of and delivered to:
(Please print name and address and insert
social security or other identifying number)
Dated: ____________________
______________________________________
Signature
(Signature must conform in all respects
to name of the Holder as specified on
the face of this Warrant Certificate)
-26-
SCHEDULE 3.2(d)
ALLIANCE IMAGING, INC.
SUBSIDIARIES
AS OF 9-30-96
SUBSIDIARY INCORPORATION OWNERSHIP
---------- ------------- ---------
Alliance Imaging Centers, Inc. (AIC) California 100%
Alliance Imaging of Central Georgia, Inc. (AICG) Georgia 100%
Epic/Alliance of Texas, Inc. (EPIC) Texas 100%
Alliance Imaging Management, Inc. (AIM) California 100%
Alliance Resonancia Magnetica S.A. de C.V. (ARM) Mexico, D.F. 100%
Royal Medical Health Services, Inc. (RMHS) Pennsylvania 100%
Sun MRI Services, Inc. (SUN) California 100%
-27-
SCHEDULE 3.2(f)
SCHEDULE OF DEBT FOR MONEY BORROWED
SEPTEMBER 30, 1996
INTEREST MATURITY BALANCE
PAYEE UNIT/COLLATERAL RATE DATE 09/30/96
- --------------------------------------------------------------------------------------------------------
ALLIANCE IMAGING, INC.
GENERAL ELECTRIC MR # 53 (BS-1) 9.50 12/99 608,274.26
MEDICAL SYSTEMS MR # 54 (BS-2) 9.50 12/99 710,796.35
MR # 55 (BS-3) 9.50 12/99 644,059.30
MR # 58 (SIGNA 4) 8.58 5/2000 1,328,028.06
MR # 59 (SIGNA 5) 8.75 6/99 995,556.27
MR # 60 (BS-4) 9.50 12/99 353,084.92
MR # 60 (BS-4) - STEP UP 9.50 12/99 196,292.78
MR # 63 (MAX-13) 8.07 12/96 44,020.56
MR # 64 (MAX-14) 8.07 1/97 58,498.55
MR # 66 (BS-5) 9.50 12/99 867,376.85
MR # 67 (MS-1) 9.95 6/99 769,027.12
MR # 69 (MS-3) 10.40 8/99 795,425.01
MR # 79 (MAX-21) 9.50 12/99 373,115.51
MR # 86 (MAX-24) 10.90 12/97 80,974.32
MR # 87 (MAX-25) 10.90 12/97 77,017.48
MR # 88 (MAX-26) 10.90 3/98 95,000.17
MR # 77 (MAX-19) 10.90 12/97 79,843.77
MR # 100 (MAX-28) 10.91 2/98 91,387.62
MR # 101 (MAX-29) 10.90 5/98 104,139.43
MR # 102 (VECTRA 1) 10.63 12/99 303,194.22
MR # 105 (MAX-31) 10.54 05/98 105,381.56
MR # 106 (MAX-32) 9.83 06/98 106,718.62
MR # 104 (MAX-30) 10.54 05/98 106,116.74
MR # 107 (MS 7) 10.25 06/2000 934,836.66
MR # 108 (MS 8) 9.90 08/2000 1,001,778.44
MR # 112 (C 1) 9.64 12/2000 701,189.24
MR # 113 (MS 13) 9.47 12/2000 1,059,371.32
CT # 14 8.50 4/97 45,835.61
CT # 17 9.64 10/31/98 151,212.20
MR # 114 (C 2) 9.47 02/2001 509,167.04
MR # 113 (C 3) 9.47 06/2001 501,509.37
MR # 117 (C 4) 9.44 06/2001 674,060.01
MR # 120 (MS 11) 9.03 03/2001 1,202,826.01
MR # 128 (MS 14) 9.91 05/2001 1,315,574.09
MR # 137 (C 7) 10.00 06/2001 684,838.60
MR # 118 (C 5) 10.24 10/2001 697,395.64
MR # 135 (MS 15) 10.24 08/2001 1,340,059.84
MR # 141 (MS 16) 10.384 09/2001 1,285,445.00
MR # 119 (C 6) 10.30 10/2001 549,997.50
-------------
SUBTOTAL 21,548,426.04
-------------
U.S. CONCORD MR # 47 & 49 (HPQ 5 & 6) 8.00 6/98 1,312,442.17
MR # 51 (HPQ 8) 8.00 12/98 772,884.89
MR # 56 (HPQ 9) 8.00 12/98 781,998.82
MR # 57 (SIGNA 6) 8.00 3/99 488,469.12
CT # 13 8.00 8/99 218,354.11
-------------
SUBTOTAL 3,574,149.11
-------------
DVI FINANCIAL SERVICES MR # 21 (T 7) 9.99 12/98 44,373.15
MR # 61 (HPQ 10) 9.99 12/98 705,066.97
MR # 65 (EDGE 2) 10.79 9/00 1,317,955.31
MR # 70 (MS 4) 11.36 3/00 1,009,339.89
MR # 110 (S 6) 11.36 3/00 593,663.77
MR # 84 (MS 5) 11.36 3/00 992,011.51
MR # 85 (MS 6) 11.36 3/00 956,169.61
MR # 127 (MS 12) 9.873 05/2001 1,862,141.78
MR # 123 (MAX 33) 10.25 5/99 175,746.38
MR # 126 (HPQ 11) 10.25 05/2001 792,669.61
-------------
SUBTOTAL 8,449,137.98
-------------
-28-
SCHEDULE 3.2(f)
SCHEDULE OF DEBT FOR MONEY BORROWED
SEPTEMBER 30, 1996
INTEREST MATURITY BALANCE
PAYEE UNIT/COLLATERAL RATE DATE 09/30/96
- --------------------------------------------------------------------------------------------------------
SIEMENS CREDIT CORPORATION MR # 81 (S-3) 10.25 9/99 678,181.93
MR # 81 (S-3) 10.69 9/99 18,285.91
MR # 82 (S-4) 10.25 9/99 674,999.27
MR # 103 (S-5) 10.70 1/2000 893,199.18
MR # 115 (S-7) 9.50 1/2002 1,267,115.35
MR # 138 (S-8) 10.251 6/2001 1,357,753.02
MR # 136 (S-9) 10.745 8/2001 1,277,596.00
-------------
SUBTOTAL 6,167,130.66
-------------
LYON CREDIT CORPORATION MR # 50 (HPQ 7) 9.522 10/2001 921,223.16
-------------
NATIONSBANC LEASING MR # 45 (HPQ 4) 7.30 9/97 437,220.85
-------------
COMERICA BANK MR # 98 (MAX 8) 10.25 03/97 136,058.00
-------------
PNC TRACTOR # 895 9.00 10/98 28,909.51
TRACTOR # 896 8.50 2/99 36,250.10
-------------
65,159.61
-------------
TOTAL ACCT 2710 41,298,505.41
-------------
AVB (A & M) TRACTOR # 894 9.321 11/97 18,039.74
TRACTOR # 879 9.321 04/97 8,565.81
-------------
SUBTOTAL 26,605.55
-------------
CIGNA SENIOR SECURED DEBT 7.50 12/2003 25,400,000.00
SENIOR SUB. DEBT 7.50 6/2005 16,070,312.50
-------------
41,470,312.50
-------------
82,795,423.46
-------------
-------------
TOTAL ALLIANCE IMAGING
ALLIANCE IMAGING CENTERS
DVI CT # 10 (IQ) 9.99 12/98 207,744.86
-------------
-------------
ROYAL MEDICAL HEALTH SERVICES
NOTES PAYABLE
DVI MR #129 (H 1) 8.6 5/99 541,641.56
DVI OLD # 7 8.6 5/99 138,428.92
PNC 9.25 07/97 27,777.42
PNC 9.25 07/97 24,388.83
INTEGRA 9.25 04/97 5,993.00
AVB COMPUTER LEASE 9.30 11/97 6,358.42
-------------
SUBTOTAL 744,588.15
-------------
NOTES PAYABLE-OTHER
MRI # 8 UNSECURED 9.50 10/98 150,000.00
MRI # 9 UNSECURED 9.50 10/98 77,000.00
MRI # 11 UNSECURED 9.50 10/98 101,868.00
-------------
SUBTOTAL 328,868.00
-------------
-------------
-29-
SCHEDULE 3.2(f)
SCHEDULE OF DEBT FOR MONEY BORROWED
SEPTEMBER 30, 1996
INTEREST MATURITY BALANCE
PAYEE UNIT/COLLATERAL RATE DATE 09/30/96
- --------------------------------------------------------------------------------------------------------
UNFAVORABLE LEASE OBLIGATIONS
DVI MR # 130 (H 2) 8.60 01/98 240,955.09
Siemens MR # 131 (S 11) 8.60 06/98 278,564.19
Siemens MR # 132 (S 12) 8.60 07/99 278,303.22
-------------
SUBTOTAL 797,822.50
-------------
CAPITAL LEASE OBLIGATIONS
Siemens MR # 133 (S 14) 8.988 03/2000 1,168,893.42
Siemens MR # 134 (S 15) 10.075 01/2001 1,478,610.20
-------------
SUBTOTAL 2,647,503.62
-------------
TOTAL ROYAL MEDICAL 4,518,782.27
-------------
-------------
SUN MRI
PICKER MR # 140 (HPQ 13) 11.165 11/98 1,025,213.54
DVI TRACTOR 899 14.603 11/98 50,882.48
-------------
TOTAL SUN MRI 1,076,096.02
-------------
-------------
CONSOLIDATED TOTALS 88,598,046.61
-------------
-------------
-30-