Conditions of Initial Purchasers’ Obligations. The obligations of the Initial Purchasers hereunder are subject to the accuracy of the representations and warranties of the Company and the Guarantors contained herein at the Execution Time and the Closing Date or in certificates of any officer of the Company or the Guarantors delivered pursuant to the provisions hereof, to the performance by the Company and the Guarantors of their covenants and other obligations hereunder, and to the following further conditions: (a) Xxxxxx Xxxxxxx Xxxxxx & Xxxxx PLLC shall have furnished to the Representative its written opinion, or letter or letters, as counsel to the Company and the Guarantors, addressed to the Representative and dated the Closing Date, substantially in the form of Exhibit B hereto. (b) The Representative shall have received from Weil, Gotshal & Xxxxxx LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Rights Agreement, the Final Memorandum and other related matters as the Representative may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (c) At time of the execution of this Agreement, the Representative shall have received from: (i) Ernst & Young LLP, two letters, one with respect to the financial information of the Company and the other with respect to the financial information of Ardent Behavioral, included or incorporated by reference in the Final Memorandum, each in form and substance satisfactory to the Representative, addressed to the Representative and dated the date hereof (A) confirming that it is an independent registered public accounting firm within the meaning of the Act and is in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (B) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated by reference in the Final Memorandum, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to Representative in connection with registered public offering; (ii) Xxxxxxxx & Company, LLP, a letter with respect to the financial information of Northern Healthcare, in form and substance satisfactory to the Representative, addressed to the Initial Purchasers and dated the date hereof (A) confirming that they are independent public accountants with respect to Northern Healthcare, (B) stating, as of the date hereof, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to Initial Purchasers in connection with registered public offering; (d) With respect to the letters referred to in the immediately preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (each, an "INITIAL LETTER"), the Representative shall have received a letter (each, a "BRING-DOWN LETTER") addressed to the Representative and dated as of the Closing Date: (i) Ernst & Young LLP, with respect to the financial information of the Company and Ardent Behavioral, incorporated by reference in the Final Memorandum, (A) confirming that it is an independent registered public accounting firm within the meaning of the Act and is in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (B) stating, as of the date of each of the bring-down letters (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated by reference in the Final Memorandum, as of a date not more than five days prior to the date of each of the bring-down letters), the conclusions and findings of such firm with respect to the financial information and other matters covered by each of the initial letters and (C) confirming in all material respects the conclusions and findings set forth in each of the initial letters; (ii) Xxxxxxxx & Company, LLP, with respect to the financial information of Northern Healthcare, incorporated by reference in the Final Memorandum, (A) confirming that they are independent public accountants with respect to Northern Healthcare, (B) stating, as of the date of the bring-down letter, the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter; and (e) The Company shall have furnished to the Representative a certificate, dated the Closing Date, signed by the Chief Executive Officer and Chief Accounting Officer of the Company stating, as applicable, that: (i) The representations, warranties and agreements of the Company and the Guarantors contained herein, as applicable, are true and correct in all material respects (except with respect to representations, warranties and agreements already qualified by materiality) as if made on and as of the Closing Date (other than to the extent any such representation or warranty is made expressly to a certain date), and the Company and the Guarantors have performed all covenants and agreements and satisfied all conditions (after giving effect to all materiality qualifiers herein) on their part to be performed or satisfied hereunder, to the extent a party hereto, at or prior to the Closing Date; and the conditions set forth in Section 6 have been fulfilled; and (ii) They have carefully examined the Final Memorandum (exclusive of any amendment or supplement thereto) and, in their opinion (A) as of the Closing Date, the Final Memorandum did not include, and as of its date and the Closing Date the Final Memorandum did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary, in the light of the circumstances under which made, to make the statements therein not misleading, and (B) since the date of the Final Memorandum, no event has occurred which should have been set forth in an amendment to the Final Memorandum or supplement to the Final Memorandum. (f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (c) or (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto). (g) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company's securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (h) Prior to the Closing Date, the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request. (i) The Representative shall have received a certificate from the Company, at the time of the execution of this Agreement and on the Closing Date, signed by the Chief Accounting Officer of the Company, in respect of the financial data contained in footnote (1) to the Unaudited Pro Forma Condensed Combined Income Statement for the twelve months ended March 31, 2005 and the year ended December 31, 2004 relating to Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions" stating, as applicable, that: (1) The financial statements attached to the certificate are , in fact, a true and accurate copy of the financial data for Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions" used to create the data contained in footnote (1) to the Unaudited Pro Forma Condensed Combined Income Statement for the twelve months ended March 31, 2005 and the year ended December 31, 2004 (the "FINANCIAL STATEMENTS"); (2) As members of management of Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions," he is responsible for the fair presentation of its financial statements and he believes the statements of financial position and results of operations are fairly presented in conformity with accounting principles generally accepted in the United States applied on a basis consistent with that of the preceding periods; (3) There are no unadjusted audit differences identified during the current audit and pertaining to the period presented; (4) No plans or intentions exist that may materially affect the carrying value or classification of assets and liabilities; (5) There are no material transactions that have not been properly recorded in the accounting records underlying the Financial Statements; (6) There are no material weaknesses in internal control, including any for which he believes the cost of corrective actions exceeds the benefits and there have been no significant changes in internal control since December 31, 2004; (7) No events or transactions have occurred since December 31, 2004 or are pending that would have a material effect on the financial statements at that date or for the period then ended, or that are of such significance in relation to the affairs of Brentwood, Northern Healthcare or each of the hospitals consolidated under the column "Non-Significant Acquisitions" to require mention in a note to the Financial Statements or the pro forma financial statements contained in the Final Memorandum in order to make them not misleading regarding the respective financial position, results of operations, or cash flows of Brentwood, Northern Healthcare or each of the hospitals consolidated under the column "Non-Significant Acquisitions." (j) Prior to the Closing Date, the Acquisition shall have been consummated. (k) Concurrently with the closing of the Offering, the Bridge Facility shall be fully repaid and all obligations of the Company and the guarantors thereunder shall be satisfied in full and discharged. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchasers hereunder are subject to the accuracy accuracy, when made and on the Closing Date, of the representations and warranties of the Company Issuers and the Guarantors contained herein at the Execution Time and the Closing Date or in certificates of any officer of the Company or the Guarantors delivered pursuant to the provisions hereofherein, to the performance by the Company Issuers and the Guarantors of their covenants and other respective obligations hereunder, and to each of the following further additional terms and conditions:
(a) Xxxxxx Xxxxxxx The Initial Purchasers shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Pricing Disclosure Package or the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact that, in the opinion of Xxxxxx & Xxxxxxx LLP, is material or omits to state a fact that, in the opinion of such counsel, is material and is required to be stated therein or is necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities, the Offering Memorandum and the Pricing Disclosure Package, and all other legal matters relating to this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Xxxxx PLLC Xxxxx L.L.P. shall have furnished to the Representative Representatives its written opinion, or letter or letters, as counsel to the Company and the GuarantorsIssuers, addressed to the Representative Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit X. XxXxxx & Xxxx shall have furnished to the Representatives its written opinion as special Oklahoma counsel to the Issuers, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C. Xxxxxxx Xxxxx, Assistant General Counsel of the Company, shall have furnished to the Representatives her written opinion, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B hereto.D.
(bd) The Representative Representatives shall have received from Weil, Gotshal Xxxxxx & Xxxxxx Xxxxxxx LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, Offering Memorandum and the Registration Rights Agreement, the Final Memorandum Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company Issuers and the Guarantors shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ce) At the time of the execution of this Agreement, the Representative Representatives shall have received from:
(i) Ernst & Young LLPfrom KPMG LLP a letter, two letters, one with respect to the financial information of the Company and the other with respect to the financial information of Ardent Behavioral, included or incorporated by reference in the Final Memorandum, each in form and substance reasonably satisfactory to the RepresentativeRepresentatives, addressed to the Representative Initial Purchasers and dated the date hereof (Ai) confirming that it is an they are independent registered public accounting firm accountants within the meaning of the Securities Act and is are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (Bii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated by reference in the Final MemorandumPricing Disclosure Package, as of a date not more than five three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "’ “comfort letters" ” to Representative underwriters in connection with registered public offering;offerings.
(iif) Xxxxxxxx & Company, LLP, a letter with With respect to the financial information letter of Northern Healthcare, KPMG LLP referred to in form the preceding paragraph and substance satisfactory delivered to the RepresentativeRepresentatives concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Representatives a letter (the “bring-down letter”) of such accountants, addressed to the Initial Purchasers and dated the date hereof Closing Date (Ai) confirming that they are independent registered public accountants with respect to Northern Healthcare, (B) stating, as of the date hereof, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to Initial Purchasers in connection with registered public offering;
(d) With respect to the letters referred to in the immediately preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (each, an "INITIAL LETTER"), the Representative shall have received a letter (each, a "BRING-DOWN LETTER") addressed to the Representative and dated as of the Closing Date:
(i) Ernst & Young LLP, with respect to the financial information of the Company and Ardent Behavioral, incorporated by reference in the Final Memorandum, (A) confirming that it is an independent registered public accounting firm within the meaning of the Securities Act and is are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (Bii) stating, as of the date of each of the bring-down letters letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated by reference in the Final Offering Memorandum, as of a date not more than five three days prior to the date of each of the bring-down letters), the conclusions and findings of such firm with respect to the financial information and other matters covered by each of the initial letters and (C) confirming in all material respects the conclusions and findings set forth in each of the initial letters;
(ii) Xxxxxxxx & Company, LLP, with respect to the financial information of Northern Healthcare, incorporated by reference in the Final Memorandum, (A) confirming that they are independent public accountants with respect to Northern Healthcare, (B) stating, as of the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter; and.
(eg) The At the time of execution of this Agreement and at the Closing Date, the Representatives shall have received from XxXxxxxx and XxxXxxxxxxx an initial letter (the “initial expert letter”), in form and substance reasonably satisfactory to the Representatives, addressed to the Representatives and dated the date hereof, and a subsequent letter dated as of the Closing Date, which such letter shall cover the period from any initial expert letter to the Closing Date, covering certain matters relating to information about the reserves of the Company presented in the Pricing Disclosure Package.
(h) Each Issuer and each Guarantor shall have furnished to the Representative Representatives a certificate, dated the Closing Date, signed by of each Issuer’s and each Guarantor’s Chief Executive Officer and its Chief Financial Officer (or, in the case of any Guarantor that does not have officers holding such positions or positions of similar authority, of the Chief Executive Officer and Chief Accounting Financial Officer of the Company stating, as applicable, immediate or ultimate parent of such entity on behalf of such entity) stating that each of them severally represents that:
(i) The representations, warranties and agreements of the Company Issuers and the Guarantors contained herein, as applicable, in Section 1 are true and correct in all material respects (except with respect to representations, warranties and agreements already qualified by materiality) as if made on and as of the Closing Date (other than to the extent any such representation or warranty is made expressly to a certain date)Date, and the Company and the Guarantors have performed complied with all covenants and of their respective agreements contained herein in all material respects and satisfied all the conditions (after giving effect to all materiality qualifiers herein) on their part to be performed or satisfied hereunder, to the extent a party hereto, hereunder at or prior to the Closing Date; and the conditions set forth in Section 6 have been fulfilled; and;
(ii) They have Such officer has carefully examined the Final Offering Memorandum (exclusive of any amendment or supplement thereto) and the Pricing Disclosure Package, and, in their opinion such officer’s opinion, (A) as of the Closing DateOffering Memorandum, the Final Memorandum did not include, and as of its date and on the Closing Date Date, and the Final Memorandum Pricing Disclosure Package, as of the Time of Sale, did not include and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessarynecessary in order to make the statements therein, in the light of the circumstances under which they were made, to make the statements therein not misleading, and (B) since the date of the Final Memorandumsuch documents, no event has occurred which that should have been set forth in an a supplement or amendment to the Final Offering Memorandum or supplement to the Final Memorandum.Pricing Disclosure Package that has not been so set forth; and
(fiii) Subsequent to Since the Execution Time or, if earlier, the respective dates as of which information is given in the Final Offering Memorandum (exclusive of any amendment or supplement thereto)and the Pricing Disclosure Package, there shall has not have been any development that resulted in a Material Adverse Effect or any development that could reasonably be expected to result in a Material Adverse Effect, whether or not arising in the ordinary course of business.
(i) Except as described in the Pricing Disclosure Package, neither the Company nor any of its Subsidiaries has sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and since such date, there has not been any change or decrease specified in the letter capitalization or letters referred to in paragraph (c) long-term debt of the Company or (d) any of this Section 6; its Subsidiaries or (ii) any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), prospectsresults of operations, earningsmembers’ equity, properties, management, business or properties prospects of the Company and its subsidiaries Subsidiaries taken as a whole, whether or not arising from transactions in each case except as could not, in the ordinary course aggregate, reasonably be expected to have a Material Adverse Effect.
(j) Subsequent to the execution and delivery of business, except as set forth in or contemplated this Agreement (i) no downgrading shall have occurred in the Final Memorandum rating accorded the Company’s or any of its Subsidiaries’ debt securities or preferred stock by any “nationally recognized statistical rating organization” (exclusive as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Securities Act as in effect on July 20, 2010), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any amendment of the Company’s or supplement thereto)any of its Subsidiaries’ debt securities or preferred stock.
(k) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the NYSE Amex Equities, the Nasdaq Stock Market or in the over-the-counter market shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of the Company on any exchange or in the over-the-counter market shall have been suspended or materially limited, (iii) a banking moratorium shall have been declared by federal or state authorities, (iv) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (v) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of whichinternational conditions on the financial markets in the United States shall be such), in any case referred as to in clause (i) or (ii) above, ismake it, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities as Notes being delivered on such Closing Date on the terms and in the manner contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto)Offering Memorandum.
(gl) Subsequent to The Issuers and the Execution Time, there Guarantors shall not have been any decrease in entered into the rating of any of Registration Rights Agreement and the Company's securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) Initial Purchasers or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible changetheir counsel shall have received executed counterparts thereof.
(hm) Prior to the Closing DateThe Issuers, the Company Guarantors and the Trustee shall have executed and delivered the Indenture, and the Initial Purchasers or their counsel shall have received an executed counterpart thereof, duly executed by the Issuers, the Guarantors and the Trustee.
(n) The Issuers and the Guarantors shall have furnished the Representatives and counsel to the Representative Initial Purchasers with such further informationother certificates, certificates and opinions or other documents as the Representative they may have reasonably request.
(i) The Representative shall have received a certificate from the Companyrequested. All opinions, at the time of the execution of this Agreement and on the Closing Dateletters, signed by the Chief Accounting Officer of the Company, in respect of the financial data contained in footnote (1) to the Unaudited Pro Forma Condensed Combined Income Statement for the twelve months ended March 31, 2005 and the year ended December 31, 2004 relating to Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions" stating, as applicable, that:
(1) The financial statements attached to the certificate are , in fact, a true and accurate copy of the financial data for Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions" used to create the data contained in footnote (1) to the Unaudited Pro Forma Condensed Combined Income Statement for the twelve months ended March 31, 2005 and the year ended December 31, 2004 (the "FINANCIAL STATEMENTS");
(2) As members of management of Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions," he is responsible for the fair presentation of its financial statements and he believes the statements of financial position and results of operations are fairly presented in conformity with accounting principles generally accepted in the United States applied on a basis consistent with that of the preceding periods;
(3) There are no unadjusted audit differences identified during the current audit and pertaining to the period presented;
(4) No plans or intentions exist that may materially affect the carrying value or classification of assets and liabilities;
(5) There are no material transactions that have not been properly recorded in the accounting records underlying the Financial Statements;
(6) There are no material weaknesses in internal control, including any for which he believes the cost of corrective actions exceeds the benefits and there have been no significant changes in internal control since December 31, 2004;
(7) No events or transactions have occurred since December 31, 2004 or are pending that would have a material effect on the financial statements at that date or for the period then ended, or that are of such significance in relation to the affairs of Brentwood, Northern Healthcare or each of the hospitals consolidated under the column "Non-Significant Acquisitions" to require mention in a note to the Financial Statements or the pro forma financial statements contained in the Final Memorandum in order to make them not misleading regarding the respective financial position, results of operations, or cash flows of Brentwood, Northern Healthcare or each of the hospitals consolidated under the column "Non-Significant Acquisitions."
(j) Prior to the Closing Date, the Acquisition shall have been consummated.
(k) Concurrently with the closing of the Offering, the Bridge Facility shall be fully repaid and all obligations of the Company and the guarantors thereunder shall be satisfied in full and discharged. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions evidence and certificates mentioned above or elsewhere in this Agreement shall not be deemed to be in compliance with the provisions hereof only if they are in all material respects reasonably satisfactory in form and substance to the Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchasers hereunder are subject to the accuracy accuracy, when made and on the Closing Date, of the representations and warranties of the Company Issuers and the Guarantors contained herein at the Execution Time and the Closing Date or in certificates of any officer of the Company or the Guarantors delivered pursuant to the provisions hereofherein, to the performance by the Company Issuers and the Guarantors of their covenants and other respective obligations hereunder, and to each of the following further additional terms and conditions:
(a) Xxxxxx Xxxxxxx The Initial Purchasers shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Pricing Disclosure Package or the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact that, in the opinion of Xxxxxx & Xxxxxxx LLP, is material or omits to state a fact that, in the opinion of such counsel, is material and is necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities, the Offering Memorandum and the Pricing Disclosure Package, and all other legal matters relating to this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Xxxxx PLLC Xxxxx L.L.P. shall have furnished to the Representative Representatives its written opinion, or letter or letters, as counsel to the Company and the GuarantorsIssuers, addressed to the Representative Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B. GableGotwals, shall have furnished to the Representatives its written opinion, as special Oklahoma counsel to the Issuers, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C. Xxxxxxxx Xxxxxx, General Counsel of the Company, shall have furnished to the Representatives her written opinion, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B hereto.D.
(bd) The Representative Representatives shall have received from Weil, Gotshal Xxxxxx & Xxxxxx Xxxxxxx LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, Offering Memorandum and the Registration Rights Agreement, the Final Memorandum Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company Issuers and the Guarantors shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ce) At the time of the execution of this Agreement, the Representative Representatives shall have received from:
(i) Ernst & Young LLPfrom KPMG LLP a letter, two letters, one with respect to the financial information of the Company and the other with respect to the financial information of Ardent Behavioral, included or incorporated by reference in the Final Memorandum, each in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Representative Initial Purchasers and dated the date hereof (Ai) confirming that it is an they are independent registered public accounting firm accountants within the meaning of the Securities Act and is are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (Bii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated by reference in the Final MemorandumPricing Disclosure Package, as of a date not more than five three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "’ “comfort letters" ” to Representative underwriters in connection with registered public offering;offerings.
(iif) Xxxxxxxx & Company, LLP, a letter with With respect to the financial information letter of Northern Healthcare, KPMG LLP referred to in form the preceding paragraph and substance satisfactory delivered to the RepresentativeRepresentatives concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Representatives a letter (the “bring-down letter”) of such accountants, addressed to the Initial Purchasers and dated the date hereof Closing Date (Ai) confirming that they are independent registered public accountants with respect to Northern Healthcare, (B) stating, as of the date hereof, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to Initial Purchasers in connection with registered public offering;
(d) With respect to the letters referred to in the immediately preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (each, an "INITIAL LETTER"), the Representative shall have received a letter (each, a "BRING-DOWN LETTER") addressed to the Representative and dated as of the Closing Date:
(i) Ernst & Young LLP, with respect to the financial information of the Company and Ardent Behavioral, incorporated by reference in the Final Memorandum, (A) confirming that it is an independent registered public accounting firm within the meaning of the Securities Act and is are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (Bii) stating, as of the date of each of the bring-down letters letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated by reference in the Final Offering Memorandum, as of a date not more than five three days prior to the date of each of the bring-down letters), the conclusions and findings of such firm with respect to the financial information and other matters covered by each of the initial letters and (C) confirming in all material respects the conclusions and findings set forth in each of the initial letters;
(ii) Xxxxxxxx & Company, LLP, with respect to the financial information of Northern Healthcare, incorporated by reference in the Final Memorandum, (A) confirming that they are independent public accountants with respect to Northern Healthcare, (B) stating, as of the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter; and.
(eg) The At the time of execution of this Agreement and at the Closing Date, the Representatives shall have received from XxXxxxxx and XxxXxxxxxxx a letter, in form and substance reasonably satisfactory to the Representatives, addressed to the Initial Purchasers and dated the date hereof covering certain matters relating to information about the reserves of the Company presented in the Pricing Disclosure Package.
(h) Each Issuer and each Guarantor shall have furnished to the Representative Representatives a certificate, dated the Closing Date, signed by of each Issuer’s and each Guarantor’s Chief Executive Officer and its Chief Financial Officer (or, in the case of any Guarantor that does not have officers holding such positions or positions of similar authority, of the Chief Executive Officer and Chief Accounting Financial Officer of the Company stating, as applicable, immediate or ultimate parent of such entity on behalf of such entity) stating that each of them severally represents that:
(i) The representations, warranties and agreements of the Company Issuers and the Guarantors contained herein, as applicable, in Section 1 are true and correct in all material respects (except with respect to representations, warranties and agreements already qualified by materiality) as if made on and as of the Closing Date (other than to the extent any such representation or warranty is made expressly to a certain date)Date, and the Company and the Guarantors have performed complied with all covenants and of their respective agreements contained herein in all material respects and satisfied all the conditions (after giving effect to all materiality qualifiers herein) on their part to be performed or satisfied hereunder, to the extent a party hereto, hereunder at or prior to the Closing Date; and the conditions set forth in Section 6 have been fulfilled; and;
(ii) They have He or she has carefully examined the Final Offering Memorandum (exclusive of any amendment or supplement thereto) and the Pricing Disclosure Package, and, in their opinion his or her opinion, (A) as of the Closing DateOffering Memorandum, the Final Memorandum did not include, and as of its date and on the Closing Date Date, and the Final Memorandum Pricing Disclosure Package, as of the Time of Sale, did not include and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required necessary in order to be stated therein or necessarymake the statements therein, in the light of the circumstances under which they were made, to make the statements therein not misleading, and (B) since the date of the Final Memorandumsuch documents, no event has occurred which that should have been set forth in an a supplement or amendment to the Final Offering Memorandum or supplement to the Final Memorandum.Pricing Disclosure Package that has not been so set forth; and
(fiii) Subsequent to Since the Execution Time or, if earlier, the respective dates as of which information is given in the Final Offering Memorandum (exclusive of any amendment or supplement thereto)and the Pricing Disclosure Package, there shall has not have been any development that resulted in a Material Adverse Effect or any development that could reasonably be expected to result in a Material Adverse Effect, whether or not arising in the ordinary course of business.
(i) Except as described in the Pricing Disclosure Package, neither the Company nor any of its subsidiaries has sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and since such date, there has not been any change or decrease specified in the letter capitalization or letters referred to in paragraph (c) long-term debt of the Company or (d) any of this Section 6; its subsidiaries or (ii) any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), prospectsresults of operations, earningsmembers’ equity, properties, management, business or properties prospects of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in each case except as could not, in the ordinary course aggregate, reasonably be expected to have a Material Adverse Effect.
(j) Subsequent to the execution and delivery of business, except as set forth in or contemplated this Agreement (i) no downgrading shall have occurred in the Final Memorandum rating accorded the Company’s or any of its subsidiaries’ debt securities or preferred stock by any “nationally recognized statistical rating organization” (exclusive as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Securities Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any amendment of the Company’s or supplement thereto)any of its subsidiaries’ debt securities or preferred stock.
(k) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the NYSE Amex Equities, the Nasdaq Stock Market or in the over-the-counter market shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of the Company on any exchange or in the over-the-counter market shall have been suspended or materially limited, (iii) a banking moratorium shall have been declared by federal or state authorities, (iv) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (v) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of whichinternational conditions on the financial markets in the United States shall be such), in any case referred as to in clause (i) or (ii) above, ismake it, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering, sale offering or delivery of the Securities as Notes being delivered on such Closing Date on the terms and in the manner contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto)Offering Memorandum.
(gl) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company's securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to At the Closing Date, the Company Notes shall have been designated for trading on the PORTAL Market.
(m) The Issuers and the Guarantors shall have entered into the Registration Rights Agreement and the Initial Purchasers or their counsel shall have received executed counterparts thereof.
(n) The Issuers, the Guarantors and the Trustee shall have executed and delivered the Indenture, and the Initial Purchasers or their counsel shall have received an executed counterpart thereof, duly executed by the Issuers, the Guarantors and the Trustee.
(o) The Issuers and the Guarantors shall have furnished the Representatives and counsel to the Representative Initial Purchasers with such further informationother certificates, certificates and opinions or other documents as the Representative they may have reasonably request.
(i) The Representative shall have received a certificate from the Companyrequested. All opinions, at the time of the execution of this Agreement and on the Closing Dateletters, signed by the Chief Accounting Officer of the Company, in respect of the financial data contained in footnote (1) to the Unaudited Pro Forma Condensed Combined Income Statement for the twelve months ended March 31, 2005 and the year ended December 31, 2004 relating to Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions" stating, as applicable, that:
(1) The financial statements attached to the certificate are , in fact, a true and accurate copy of the financial data for Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions" used to create the data contained in footnote (1) to the Unaudited Pro Forma Condensed Combined Income Statement for the twelve months ended March 31, 2005 and the year ended December 31, 2004 (the "FINANCIAL STATEMENTS");
(2) As members of management of Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions," he is responsible for the fair presentation of its financial statements and he believes the statements of financial position and results of operations are fairly presented in conformity with accounting principles generally accepted in the United States applied on a basis consistent with that of the preceding periods;
(3) There are no unadjusted audit differences identified during the current audit and pertaining to the period presented;
(4) No plans or intentions exist that may materially affect the carrying value or classification of assets and liabilities;
(5) There are no material transactions that have not been properly recorded in the accounting records underlying the Financial Statements;
(6) There are no material weaknesses in internal control, including any for which he believes the cost of corrective actions exceeds the benefits and there have been no significant changes in internal control since December 31, 2004;
(7) No events or transactions have occurred since December 31, 2004 or are pending that would have a material effect on the financial statements at that date or for the period then ended, or that are of such significance in relation to the affairs of Brentwood, Northern Healthcare or each of the hospitals consolidated under the column "Non-Significant Acquisitions" to require mention in a note to the Financial Statements or the pro forma financial statements contained in the Final Memorandum in order to make them not misleading regarding the respective financial position, results of operations, or cash flows of Brentwood, Northern Healthcare or each of the hospitals consolidated under the column "Non-Significant Acquisitions."
(j) Prior to the Closing Date, the Acquisition shall have been consummated.
(k) Concurrently with the closing of the Offering, the Bridge Facility shall be fully repaid and all obligations of the Company and the guarantors thereunder shall be satisfied in full and discharged. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions evidence and certificates mentioned above or elsewhere in this Agreement shall not be deemed to be in compliance with the provisions hereof only if they are in all material respects reasonably satisfactory in form and substance to the Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchasers hereunder are subject to the accuracy accuracy, when made and on the Closing Date, of the representations and warranties of the Company and the Guarantors contained herein at the Execution Time and the Closing Date or in certificates of any officer of the Company or the Guarantors delivered pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of their covenants and other obligations hereunder, and to each of the following further additional terms and conditions:
(a) Xxxxxx Xxxxxxx No Initial Purchaser shall have discovered and disclosed to the Company on or prior to the Closing Date that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of Xxxxxx & Xxxxx PLLC Xxxxxxx LLP, counsel for the Initial Purchasers, is material or omits to state a fact which, in the opinion of such counsel, is material and is necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the other Operative Documents, the Offering Memorandum, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Xxxxxxx Xxxxxxx & Xxxxxxxx shall have furnished to the Representative Initial Purchasers, its written opinion, or letter or letters, as counsel to the Company and the GuarantorsCompany, addressed to the Representative Initial Purchasers and dated the Closing Date, substantially in the form of attached hereto as Exhibit B hereto.A.
(bd) Xxxxxxxxxxx X. Xxxxxxx, General Counsel of the Company, shall have furnished to the Initial Purchasers his written opinion, as General Counsel to the Company, addressed to the Initial Purchasers and dated the Closing Date, in the form attached hereto as Exhibit B.
(e) The Representative Initial Purchasers shall have received from Weil, Gotshal Xxxxxx & Xxxxxx Xxxxxxx LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the SecuritiesSeries A Notes, the IndentureSeries A Guarantees, the Registration Rights Agreement, the Final Offering Memorandum and other related matters as the Representative Initial Purchasers may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(cf) At the time of the execution of this Agreement, the Representative Initial Purchasers shall have received from:
(i) Ernst & Young from PricewaterhouseCoopers LLP, two lettersa letter, one in accordance with respect to professional standards established by the financial information of the Company AICPA and the other with respect to the financial information of Ardent Behavioral, included or incorporated by reference in the Final Memorandum, each in form and substance satisfactory to the RepresentativeInitial Purchasers, addressed to the Representative and dated the date hereof Initial Purchasers (Ai) confirming that it is an they are independent registered public accounting firm within the meaning of the Act and is in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X 101 of the CommissionAICPA's Code of Professional Conduct, and its interpretation and rulings and (Bii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated by reference in the Final Offering Memorandum, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to Representative Initial Purchasers in connection with registered public offering;offerings.
(iig) Xxxxxxxx & Company, LLP, a letter with With respect to the financial information letter of Northern Healthcare, PricewaterhouseCoopers LLP referred to in form the preceding paragraph and substance satisfactory delivered to the RepresentativeInitial Purchasers concurrently with the execution of this Agreement (the "initial letter"), the Company shall have furnished to the Initial Purchasers a letter (the "bring-down letter") of such accountants in accordance with professional standards established by the AICPA, addressed to the Initial Purchasers and dated the date hereof Closing Date (Ai) confirming that they are independent public accountants with respect to Northern Healthcare, (B) stating, as under Rule 101 of the date hereofAICPA's Code of Professional Conduct, the conclusions and findings of such firm with respect to the financial information its interpretation and other matters ordinarily covered by accountants' "comfort letters" to Initial Purchasers in connection with registered public offering;
rulings and (d) With respect to the letters referred to in the immediately preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (each, an "INITIAL LETTER"), the Representative shall have received a letter (each, a "BRING-DOWN LETTER") addressed to the Representative and dated as of the Closing Date:
(i) Ernst & Young LLP, with respect to the financial information of the Company and Ardent Behavioral, incorporated by reference in the Final Memorandum, (A) confirming that it is an independent registered public accounting firm within the meaning of the Act and is in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (Bii) stating, as of the date of each of the bring-down letters letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated by reference in the Final Offering Memorandum, as of a date not more than five days prior to the date of each of the bring-down letters), the conclusions and findings of such firm with respect to the financial information and other matters covered by each of the initial letters and (C) confirming in all material respects the conclusions and findings set forth in each of the initial letters;
(ii) Xxxxxxxx & Company, LLP, with respect to the financial information of Northern Healthcare, incorporated by reference in the Final Memorandum, (A) confirming that they are independent public accountants with respect to Northern Healthcare, (B) stating, as of the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter; and.
(eh) The Company and the Guarantors shall have furnished to the Representative Initial Purchasers a certificate, dated the Closing Date, signed by the Chief Executive Officer and Chief Accounting Officer of their respective Chairman of the Company statingBoard, as applicable, their respective President or a Vice President and their respective chief financial officer stating that:
(i) The representations, representations and warranties and agreements of the Company and the Guarantors contained herein, as applicable, in Section 1 are true and correct in all material respects (except with respect to representations, warranties and agreements already qualified by materiality) as if made on and as of the Closing Date (other than to the extent any such representation or warranty is made expressly to a certain date), and Date; the Company and the Guarantors have performed complied with all covenants and their agreements and satisfied all conditions (after giving effect to all materiality qualifiers contained herein) on their part to be performed or satisfied hereunder, to the extent a party hereto, at or prior to the Closing Date; and the conditions set forth in Section 6 Sections 7(i) and 7(j) have been fulfilled; and
(ii) They have carefully examined the Final Offering Memorandum (exclusive of any amendment or supplement thereto) and, in their opinion (A) the Offering Memorandum as of its date and as of the Closing Date, the Final Memorandum did not include, and as of its date and the Closing Date the Final Memorandum did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary, in the light of the circumstances under which made, necessary to make the statements therein not misleading, and (B) since the date of the Final Offering Memorandum, no event has occurred which should have been set forth in an a supplement or amendment to the Final Memorandum or supplement to the Final Offering Memorandum.
(fi) Subsequent to Neither the Execution Time or, if earlier, Company nor any of its subsidiaries shall have sustained since the dates as date of which information is given the latest audited financial statements incorporated by reference in the Final Offering Memorandum any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto), in the documents incorporated therein by reference) or (ii) since such date there shall not have been (i) any change or decrease specified in the letter capital stock or letters referred to in paragraph (c) long-term debt of the Company or (d) any of this Section 6; its subsidiaries or (ii) any change, or any development involving a prospective change, in or affecting the condition (business, management, financial position, stockholders' equity or otherwise), prospects, earnings, business or properties results of operations of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except otherwise than as set forth in or contemplated in the Final Offering Memorandum (exclusive of any amendment or supplement theretoin the documents incorporated therein by reference), the effect of which, in any such case referred to described in clause (i) or (ii) above), is, in the sole judgment of the RepresentativeInitial Purchasers, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering, sale public offering or the delivery of the Securities as Notes and the Guarantees being delivered on the Closing Date on the terms and in the manner contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto)Offering Memorandum.
(gj) Subsequent to the Execution Time, there execution and delivery of this Agreement (i) no downgrading shall not have been any decrease occurred in the rating of any of accorded the Company's debt securities by any "nationally recognized statistical rating organization," (as that term is defined by the Commission for purposes of Rule 436(g436(g)(2) under the ActSecurities Act and (ii) no such organization shall have publicly announced that it has under surveillance or any notice given review, with possible negative implications, its rating of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible changeCompany's debt securities.
(hk) Prior Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange, the NASDAQ National Market or the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market shall have been suspended or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or there shall have occurred any other calamity or crisis (including, without limitation, as a result of terrorist activities) or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including without limitation as a result of terrorist activities after the date hereof, or the effect of international conditions on the financial markets in the United States shall be such, as to make it in the case of (iii) or (iv), in the sole judgment of a majority in interest of the several Initial Purchasers, impracticable or inadvisable to proceed with the public offering or delivery of the Notes being delivered on the Closing Date on the terms and in the manner contemplated in the Offering Memorandum.
(l) On or prior to the Closing Date, the The Depository Trust Company shall have furnished to accepted the Representative such further informationSeries A Notes for clearance. All opinions, certificates and documents as the Representative may reasonably request.
(i) The Representative shall have received a certificate from the Companyletters, at the time of the execution of this Agreement and on the Closing Date, signed by the Chief Accounting Officer of the Company, in respect of the financial data contained in footnote (1) to the Unaudited Pro Forma Condensed Combined Income Statement for the twelve months ended March 31, 2005 and the year ended December 31, 2004 relating to Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions" stating, as applicable, that:
(1) The financial statements attached to the certificate are , in fact, a true and accurate copy of the financial data for Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions" used to create the data contained in footnote (1) to the Unaudited Pro Forma Condensed Combined Income Statement for the twelve months ended March 31, 2005 and the year ended December 31, 2004 (the "FINANCIAL STATEMENTS");
(2) As members of management of Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions," he is responsible for the fair presentation of its financial statements and he believes the statements of financial position and results of operations are fairly presented in conformity with accounting principles generally accepted in the United States applied on a basis consistent with that of the preceding periods;
(3) There are no unadjusted audit differences identified during the current audit and pertaining to the period presented;
(4) No plans or intentions exist that may materially affect the carrying value or classification of assets and liabilities;
(5) There are no material transactions that have not been properly recorded in the accounting records underlying the Financial Statements;
(6) There are no material weaknesses in internal control, including any for which he believes the cost of corrective actions exceeds the benefits and there have been no significant changes in internal control since December 31, 2004;
(7) No events or transactions have occurred since December 31, 2004 or are pending that would have a material effect on the financial statements at that date or for the period then ended, or that are of such significance in relation to the affairs of Brentwood, Northern Healthcare or each of the hospitals consolidated under the column "Non-Significant Acquisitions" to require mention in a note to the Financial Statements or the pro forma financial statements contained in the Final Memorandum in order to make them not misleading regarding the respective financial position, results of operations, or cash flows of Brentwood, Northern Healthcare or each of the hospitals consolidated under the column "Non-Significant Acquisitions."
(j) Prior to the Closing Date, the Acquisition shall have been consummated.
(k) Concurrently with the closing of the Offering, the Bridge Facility shall be fully repaid and all obligations of the Company and the guarantors thereunder shall be satisfied in full and discharged. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions evidence and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to the Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Samples: Purchase Agreement (Microdyne Corp)
Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchasers hereunder are subject to the accuracy accuracy, when made and on the Closing Date, of the representations and warranties of the Company Issuers and the Guarantors contained herein at the Execution Time and the Closing Date or in certificates of any officer of the Company or the Guarantors delivered pursuant to the provisions hereofherein, to the performance by the Company Issuers and the Guarantors of their covenants and other respective obligations hereunder, and to each of the following further additional terms and conditions:
(a) Xxxxxx Xxxxxxx The Initial Purchasers shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Pricing Disclosure Package or the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact that, in the opinion of Xxxxxx & Xxxxxxx LLP, is material or omits to state a fact that, in the opinion of such counsel, is material and is necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities, the Offering Memorandum and the Pricing Disclosure Package, and all other legal matters relating to this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Xxxxx PLLC Xxxxx L.L.P. shall have furnished to the Representative Representatives its written opinion, or letter or letters, as counsel to the Company and the GuarantorsIssuers, addressed to the Representative Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B. GableGotwals, shall have furnished to the Representatives its written opinion, as special Oklahoma counsel to the Issuers, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit C. Xxxxxxxx Xxxxxx, General Counsel of the Company, shall have furnished to the Representatives her written opinion, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B hereto.D.
(bd) The Representative Representatives shall have received from Weil, Gotshal Xxxxxx & Xxxxxx Xxxxxxx LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, Offering Memorandum and the Registration Rights Agreement, the Final Memorandum Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company Issuers and the Guarantors shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ce) At the time of the execution of this Agreement, the Representative Representatives shall have received from:
(i) Ernst & Young LLPfrom KPMG LLP a letter, two letters, one with respect to the financial information of the Company and the other with respect to the financial information of Ardent Behavioral, included or incorporated by reference in the Final Memorandum, each in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Representative Initial Purchasers and dated the date hereof (Ai) confirming that it is an they are independent registered public accounting firm accountants within the meaning of the Securities Act and is are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (Bii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated by reference in the Final MemorandumPricing Disclosure Package, as of a date not more than five three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "’ “comfort letters" ” to Representative underwriters in connection with registered public offering;offerings.
(iif) Xxxxxxxx & Company, LLP, a letter with With respect to the financial information letter of Northern Healthcare, KPMG LLP referred to in form the preceding paragraph and substance satisfactory delivered to the RepresentativeRepresentatives concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Representatives a letter (the “bring-down letter”) of such accountants, addressed to the Initial Purchasers and dated the date hereof Closing Date (Ai) confirming that they are independent registered public accountants with respect to Northern Healthcare, (B) stating, as of the date hereof, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to Initial Purchasers in connection with registered public offering;
(d) With respect to the letters referred to in the immediately preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (each, an "INITIAL LETTER"), the Representative shall have received a letter (each, a "BRING-DOWN LETTER") addressed to the Representative and dated as of the Closing Date:
(i) Ernst & Young LLP, with respect to the financial information of the Company and Ardent Behavioral, incorporated by reference in the Final Memorandum, (A) confirming that it is an independent registered public accounting firm within the meaning of the Securities Act and is are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (Bii) stating, as of the date of each of the bring-down letters letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated by reference in the Final Offering Memorandum, as of a date not more than five three days prior to the date of each of the bring-down letters), the conclusions and findings of such firm with respect to the financial information and other matters covered by each of the initial letters and (C) confirming in all material respects the conclusions and findings set forth in each of the initial letters;
(ii) Xxxxxxxx & Company, LLP, with respect to the financial information of Northern Healthcare, incorporated by reference in the Final Memorandum, (A) confirming that they are independent public accountants with respect to Northern Healthcare, (B) stating, as of the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter; and.
(eg) The At the time of execution of this Agreement and at the Closing Date, the Representatives shall have received from XxXxxxxx and XxxXxxxxxxx a letter, in form and substance reasonably satisfactory to the Representatives, addressed to the Initial Purchasers and dated the date hereof and the Closing Date, as applicable, covering certain matters relating to information about the reserves of the Company presented in the Pricing Disclosure Package.
(h) Each Issuer and each Guarantor shall have furnished to the Representative Representatives a certificate, dated the Closing Date, signed by of each Issuer’s and each Guarantor’s Chief Executive Officer and its Chief Financial Officer (or, in the case of any Guarantor that does not have officers holding such positions or positions of similar authority, of the Chief Executive Officer and Chief Accounting Financial Officer of the Company stating, as applicable, immediate or ultimate parent of such entity on behalf of such entity) stating that each of them severally represents that:
(i) The representations, warranties and agreements of the Company Issuers and the Guarantors contained herein, as applicable, in Section 1 are true and correct in all material respects (except with respect to representations, warranties and agreements already qualified by materiality) as if made on and as of the Closing Date (other than to the extent any such representation or warranty is made expressly to a certain date)Date, and the Company and the Guarantors have performed complied with all covenants and of their respective agreements contained herein in all material respects and satisfied all the conditions (after giving effect to all materiality qualifiers herein) on their part to be performed or satisfied hereunder, to the extent a party hereto, hereunder at or prior to the Closing Date; and the conditions set forth in Section 6 have been fulfilled; and;
(ii) They have He or she has carefully examined the Final Offering Memorandum (exclusive of any amendment or supplement thereto) and the Pricing Disclosure Package, and, in their opinion his or her opinion, (A) as of the Closing DateOffering Memorandum, the Final Memorandum did not include, and as of its date and on the Closing Date Date, and the Final Memorandum Pricing Disclosure Package, as of the Time of Sale, did not include and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required necessary in order to be stated therein or necessarymake the statements therein, in the light of the circumstances under which they were made, to make the statements therein not misleading, and (B) since the date of the Final Memorandumsuch documents, no event has occurred which that should have been set forth in an a supplement or amendment to the Final Offering Memorandum or supplement to the Final Memorandum.Pricing Disclosure Package that has not been so set forth; and
(fiii) Subsequent to Since the Execution Time or, if earlier, the respective dates as of which information is given in the Final Offering Memorandum (exclusive of any amendment or supplement thereto)and the Pricing Disclosure Package, there shall has not have been any development that resulted in a Material Adverse Effect or any development that could reasonably be expected to result in a Material Adverse Effect, whether or not arising in the ordinary course of business.
(i) Except as described in the Pricing Disclosure Package, neither the Company nor any of its subsidiaries has sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and since such date, there has not been any change or decrease specified in the letter capitalization or letters referred to in paragraph (c) long-term debt of the Company or (d) any of this Section 6; its subsidiaries or (ii) any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), prospectsresults of operations, earningsmembers’ equity, properties, management, business or properties prospects of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in each case except as could not, in the ordinary course aggregate, reasonably be expected to have a Material Adverse Effect.
(j) Subsequent to the execution and delivery of business, except as set forth in or contemplated this Agreement (i) no downgrading shall have occurred in the Final Memorandum rating accorded the Company’s or any of its subsidiaries’ debt securities or preferred stock by any “nationally recognized statistical rating organization” (exclusive as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Securities Act as in effect on July 20, 2010), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any amendment of the Company’s or supplement thereto)any of its subsidiaries’ debt securities or preferred stock.
(k) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the NYSE Amex Equities, the Nasdaq Stock Market or in the over-the-counter market shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of the Company on any exchange or in the over-the-counter market shall have been suspended or materially limited, (iii) a banking moratorium shall have been declared by federal or state authorities, (iv) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (v) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of whichinternational conditions on the financial markets in the United States shall be such), in any case referred as to in clause (i) or (ii) above, ismake it, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering, sale offering or delivery of the Securities as Notes being delivered on such Closing Date on the terms and in the manner contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto)Offering Memorandum.
(gl) Subsequent to The Issuers and the Execution Time, there Guarantors shall not have been any decrease in entered into the rating of any of Registration Rights Agreement and the Company's securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) Initial Purchasers or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible changetheir counsel shall have received executed counterparts thereof.
(hm) Prior to the Closing DateThe Issuers, the Company Guarantors and the Trustee shall have executed and delivered the Indenture, and the Initial Purchasers or their counsel shall have received an executed counterpart thereof, duly executed by the Issuers, the Guarantors and the Trustee.
(n) The Issuers and the Guarantors shall have furnished the Representatives and counsel to the Representative Initial Purchasers with such further informationother certificates, certificates and opinions or other documents as the Representative they may have reasonably request.
(i) The Representative shall have received a certificate from the Companyrequested. All opinions, at the time of the execution of this Agreement and on the Closing Dateletters, signed by the Chief Accounting Officer of the Company, in respect of the financial data contained in footnote (1) to the Unaudited Pro Forma Condensed Combined Income Statement for the twelve months ended March 31, 2005 and the year ended December 31, 2004 relating to Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions" stating, as applicable, that:
(1) The financial statements attached to the certificate are , in fact, a true and accurate copy of the financial data for Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions" used to create the data contained in footnote (1) to the Unaudited Pro Forma Condensed Combined Income Statement for the twelve months ended March 31, 2005 and the year ended December 31, 2004 (the "FINANCIAL STATEMENTS");
(2) As members of management of Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions," he is responsible for the fair presentation of its financial statements and he believes the statements of financial position and results of operations are fairly presented in conformity with accounting principles generally accepted in the United States applied on a basis consistent with that of the preceding periods;
(3) There are no unadjusted audit differences identified during the current audit and pertaining to the period presented;
(4) No plans or intentions exist that may materially affect the carrying value or classification of assets and liabilities;
(5) There are no material transactions that have not been properly recorded in the accounting records underlying the Financial Statements;
(6) There are no material weaknesses in internal control, including any for which he believes the cost of corrective actions exceeds the benefits and there have been no significant changes in internal control since December 31, 2004;
(7) No events or transactions have occurred since December 31, 2004 or are pending that would have a material effect on the financial statements at that date or for the period then ended, or that are of such significance in relation to the affairs of Brentwood, Northern Healthcare or each of the hospitals consolidated under the column "Non-Significant Acquisitions" to require mention in a note to the Financial Statements or the pro forma financial statements contained in the Final Memorandum in order to make them not misleading regarding the respective financial position, results of operations, or cash flows of Brentwood, Northern Healthcare or each of the hospitals consolidated under the column "Non-Significant Acquisitions."
(j) Prior to the Closing Date, the Acquisition shall have been consummated.
(k) Concurrently with the closing of the Offering, the Bridge Facility shall be fully repaid and all obligations of the Company and the guarantors thereunder shall be satisfied in full and discharged. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions evidence and certificates mentioned above or elsewhere in this Agreement shall not be deemed to be in compliance with the provisions hereof only if they are in all material respects reasonably satisfactory in form and substance to the Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchasers hereunder are subject to the accuracy accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Guarantors contained herein at the Execution Time and the Closing Date or in certificates of any officer of the Company or the Guarantors delivered pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of their covenants and other its obligations hereunder, and to each of the following further additional terms and conditions:
(a) Xxxxxx No Initial Purchaser shall have discovered and disclosed to the Company on or prior to such Delivery Date that the Pricing Disclosure Package or the Offering Memorandum, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Xxxxxxx Xxxxxx Xxxxxxx & Xxxxx PLLC Xxxxxxxx LLP, counsel for the Initial Purchasers, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Notes, the Indenture, the Pricing Disclosure Package and the Offering Memorandum, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Xxxx, Gerber & Xxxxxxxxx LLP shall have furnished to the Representative Representatives its written opinion, or letter or lettersopinion and statement, as counsel to the Company and the GuarantorsCompany, addressed to the Representative Initial Purchasers and dated such Delivery Date, in form and substance reasonably satisfactory to the Closing Representatives, substantially in the form attached hereto as Exhibit B-1.
(d) Xxxxxx & Xxxxxxx LLP shall have furnished to the Representatives its written opinions, as special counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B-2.
(e) The General Counsel of the Company shall have furnished to the Representatives its written opinion, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B-3.
(f) Xxxxx & XxXxxxx LLP shall have furnished to the Representatives its written opinion, as regulatory counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form of attached hereto as Exhibit B heretoB-4.
(bg) The Representative Representatives shall have received from Weil, Gotshal Xxxxxxx Xxxxxxx & Xxxxxx Xxxxxxxx LLP, counsel for the Initial Purchasers, such opinion or opinionsand statement, dated the Closing such Delivery Date, with respect to the issuance and sale of the SecuritiesNotes, the IndenturePricing Disclosure Package, the Registration Rights Agreement, the Final Offering Memorandum and other related matters as the Representative Representatives may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ch) At the time of the execution of this Agreement, the Representative Representatives shall have received from:
(i) from Ernst & Young LLPLLP a letter, two letters, one with respect to the financial information of the Company and the other with respect to the financial information of Ardent Behavioral, included or incorporated by reference in the Final Memorandum, each in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Representative Initial Purchasers and dated the date hereof (Ai) confirming that it is an they are independent registered public accounting firm accountants within the meaning of the Securities Act and is are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (Bii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated by reference in the Final MemorandumPricing Disclosure Package, as of a date not more than five three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "’ “comfort letters" ” to Representative initial purchasers in connection with registered public offering;offerings.
(iii) Xxxxxxxx & Company, LLP, a letter with With respect to the financial information letter of Northern Healthcare, Ernst & Young LLP referred to in form the preceding paragraph and substance satisfactory delivered to the RepresentativeRepresentatives concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Representatives a letter (the “bring-down letter”) of such accountants, addressed to the Initial Purchasers and dated the date hereof such Delivery Date (Ai) confirming that they are independent public accountants with respect to Northern Healthcare, (B) stating, as of the date hereof, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to Initial Purchasers in connection with registered public offering;
(d) With respect to the letters referred to in the immediately preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (each, an "INITIAL LETTER"), the Representative shall have received a letter (each, a "BRING-DOWN LETTER") addressed to the Representative and dated as of the Closing Date:
(i) Ernst & Young LLP, with respect to the financial information of the Company and Ardent Behavioral, incorporated by reference in the Final Memorandum, (A) confirming that it is an independent registered public accounting firm within the meaning of the Securities Act and is are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (Bii) stating, as of the date of each of the bring-down letters letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated by reference in each of the Final Pricing Disclosure Package and the Offering Memorandum, as of a date not more than five three days prior to the date of each of the bring-down letters), the conclusions and findings of such firm with respect to the financial information and other matters covered by each of the initial letters and (C) confirming in all material respects the conclusions and findings set forth in each of the initial letters;
(ii) Xxxxxxxx & Company, LLP, with respect to the financial information of Northern Healthcare, incorporated by reference in the Final Memorandum, (A) confirming that they are independent public accountants with respect to Northern Healthcare, (B) stating, as of the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter; and.
(ej) The Company shall have furnished to the Representative Representatives a certificate, dated the Closing such Delivery Date, signed by the of its Chief Executive Officer and its Chief Accounting Financial Officer of the Company stating, as applicable, stating that:
(i) The representations, warranties and agreements of the Company and the Guarantors contained herein, as applicable, in Section 2 are true and correct in all material respects (except with respect to representations, warranties and agreements already qualified by materiality) as if made on and as of the Closing Date (other than to the extent any such representation or warranty is made expressly to a certain date)Delivery Date, and the Company and the Guarantors have performed has complied with all covenants and its agreements contained herein and satisfied all the conditions (after giving effect to all materiality qualifiers herein) on their its part to be performed or satisfied hereunder, to the extent a party hereto, hereunder at or prior to the Closing such Delivery Date; and the conditions set forth in Section 6 have been fulfilled; and
(ii) They have carefully examined the Final Memorandum (exclusive of any amendment or supplement thereto) Pricing Disclosure Package and the Offering Memorandum, and, in their opinion opinion, (A) the Pricing Disclosure Package, as of the Closing Applicable Time and as of the applicable Delivery Date, and the Final Memorandum did not includeOffering Memorandum, and as of its date and as of the Closing Date the Final Memorandum applicable Delivery Date, did not include and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required necessary to be stated therein or necessarymake the statements therein, in the light of the circumstances under which they were made, to make the statements therein not misleading, and (B) since the date of the Final MemorandumPricing Disclosure Package, no event has occurred which that should have been set forth in an a supplement or amendment to the Final Memorandum Pricing Disclosure Package or supplement to the Final Offering Memorandum.
(fk) Subsequent to Except as described in each of the Execution Time orPricing Disclosure Package or the Offering Memorandum, if earlier(i) neither the Company nor any of its subsidiaries shall have sustained, since the dates as date of which information is given the latest audited financial statements included or incorporated by reference in the Final Memorandum Pricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (exclusive of any amendment or supplement thereto), ii) since such date there shall not have been (i) any change or decrease specified in the letter capital stock of the Company or letters referred to in paragraph (c) the long-term debt of the Company or (d) any of this Section 6; its subsidiaries or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial condition, results of operations, stockholders’ equity, properties, management or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case referred to described in clause (i) or (ii) above), is, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering, sale public offering or the delivery of the Securities as Notes being delivered on such Delivery Date on the terms and in the manner contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto)Offering Memorandum.
(gl) Subsequent to the Execution Time, there execution and delivery of this Agreement (i) no downgrading shall not have been any decrease occurred in the rating accorded the debt securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization” (as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) Company or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible changeits subsidiaries.
(hm) Prior Subsequent to the Closing Date, execution and delivery of this Agreement there shall not have occurred any of the Company shall have furnished to the Representative such further information, certificates and documents as the Representative may reasonably request.
following: (i) The Representative trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have received been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a certificate from banking moratorium shall have been declared by federal or state authorities, (iii) the CompanyUnited States shall have become engaged in hostilities, at there shall have been an escalation in hostilities involving the time United States or there shall have been a declaration of a national emergency or war by the execution United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of this Agreement and terrorist activities after the date hereof (or the effect of international conditions on the Closing Date, signed by the Chief Accounting Officer of the Company, in respect of the financial data contained in footnote (1) to the Unaudited Pro Forma Condensed Combined Income Statement for the twelve months ended March 31, 2005 and the year ended December 31, 2004 relating to Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions" stating, as applicable, that:
(1) The financial statements attached to the certificate are , in fact, a true and accurate copy of the financial data for Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions" used to create the data contained in footnote (1) to the Unaudited Pro Forma Condensed Combined Income Statement for the twelve months ended March 31, 2005 and the year ended December 31, 2004 (the "FINANCIAL STATEMENTS");
(2) As members of management of Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions," he is responsible for the fair presentation of its financial statements and he believes the statements of financial position and results of operations are fairly presented in conformity with accounting principles generally accepted markets in the United States applied on a basis consistent with that shall be such), as to make it, in the judgment of the preceding periods;Representatives, impracticable or inadvisable to proceed with the public offering or delivery of the Notes being delivered on such Delivery Date on the terms and in the manner contemplated in the Offering Memorandum.
(3n) There are no unadjusted audit differences identified during The Lock-Up Agreements between the current audit Representatives and pertaining the officers, directors and certain stockholders of the Company set forth on Schedule 5, delivered to the period presented;Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date.
(4o) No plans or intentions exist that may materially affect the carrying value or classification of assets and liabilities;
(5) There are no material transactions that have not been properly recorded in the accounting records underlying the Financial Statements;
(6) There are no material weaknesses in internal control, including any for which he believes the cost of corrective actions exceeds the benefits and there have been no significant changes in internal control since December 31, 2004;
(7) No events or transactions have occurred since December 31, 2004 or are pending that would have a material effect on the financial statements at that date or for the period then ended, or that are of such significance in relation to the affairs of Brentwood, Northern Healthcare or each of the hospitals consolidated under the column "Non-Significant Acquisitions" to require mention in a note to the Financial Statements or the pro forma financial statements contained in the Final Memorandum in order to make them not misleading regarding the respective financial position, results of operations, or cash flows of Brentwood, Northern Healthcare or each of the hospitals consolidated under the column "Non-Significant Acquisitions."
(j) Prior to the Closing Date, the Acquisition The Notes shall have been consummatedmade eligible for clearance on DTC.
(kp) Concurrently The conditions to the effectiveness of the cash convertible note hedge transactions and warrant transactions in connection with the closing issuance of the Offering, the Bridge Facility Notes shall be fully repaid and all obligations of the Company and the guarantors thereunder shall be satisfied in full and discharged. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreementsatisfied. All opinions, or if any of the opinions letters, evidence and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to the Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective obligations of the Initial Purchasers hereunder are subject to the accuracy accuracy, when made and on the Closing Date, of the representations and warranties of the Company Issuers and the Guarantors contained herein at the Execution Time and the Closing Date or in certificates of any officer of the Company or the Guarantors delivered pursuant to the provisions hereofherein, to the performance by the Company Issuers and the Guarantors of their covenants and other respective obligations hereunder, and to each of the following further additional terms and conditions:
(a) Xxxxxx The Initial Purchasers shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Pricing Disclosure Package or the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact that, in the opinion of Xxxxx Xxxxx L.L.P., is material or omits to state a fact that, in the opinion of such counsel, is material and is necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities, the Offering Memorandum and the Pricing Disclosure Package, and all other legal matters relating to this Agreement, the Registration Rights Agreement, the Indenture, the Securities, the Exchange Securities and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Xxxx Xxxx Xxxxxxx Xxxxxx Xxxxx & Xxxxx PLLC Xxxx LLP shall have furnished to the Representative Representatives its written opinion, or letter or letters, as counsel to the Company and the GuarantorsIssuers, addressed to the Representative Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B. GableGotwals, shall have furnished to the Representatives its written opinion, as special Oklahoma counsel to the Issuers, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit X. Xxxxxxxx Xxxxxx, General Counsel of the Company, shall have furnished to the Representatives her written opinion, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B hereto.D.
(bd) The Representative Representatives shall have received from Weil, Gotshal & Xxxxxx LLPXxxxx Xxxxx L.L.P., counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, Offering Memorandum and the Registration Rights Agreement, the Final Memorandum Pricing Disclosure Package and other related matters as the Representative Representatives may reasonably require, and the Company Issuers and the Guarantors shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(ce) At the time of the execution of this Agreement, the Representative Representatives shall have received from:
(i) Ernst & Young from each of KPMG LLP, two lettersXxxx & Associates LLP and Deloitte & Touche LLP a letter, one with respect to the financial information of the Company and the other with respect to the financial information of Ardent Behavioral, included or incorporated by reference in the Final Memorandum, each in form and substance satisfactory to the RepresentativeRepresentatives, addressed to the Representative Initial Purchasers and dated the date hereof (Ai) confirming that it is an they are independent registered public accounting firm accountants within the meaning of the Securities Act and is are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (Bii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated by reference in the Final MemorandumPricing Disclosure Package, as of a date not more than five three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "’ “comfort letters" ” to Representative underwriters in connection with registered public offering;offerings.
(iif) Xxxxxxxx & Company, LLP, a letter with With respect to the financial information letter of Northern Healthcare, KPMG LLP referred to in form the preceding paragraph and substance satisfactory delivered to the RepresentativeRepresentatives concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Representatives a letter (the “bring-down letter”) of such accountants, addressed to the Initial Purchasers and dated the date hereof Closing Date (Ai) confirming that they are independent public accountants with respect to Northern Healthcare, (B) stating, as of the date hereof, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to Initial Purchasers in connection with registered public offering;
(d) With respect to the letters referred to in the immediately preceding paragraph and delivered to the Representative concurrently with the execution of this Agreement (each, an "INITIAL LETTER"), the Representative shall have received a letter (each, a "BRING-DOWN LETTER") addressed to the Representative and dated as of the Closing Date:
(i) Ernst & Young LLP, with respect to the financial information of the Company and Ardent Behavioral, incorporated by reference in the Final Memorandum, (A) confirming that it is an independent registered public accounting firm within the meaning of the Securities Act and is are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (Bii) stating, as of the date of each of the bring-down letters letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated by reference in the Final Offering Memorandum, as of a date not more than five three days prior to the date of each of the bring-down letters), the conclusions and findings of such firm with respect to the financial information and other matters covered by each of the initial letters and (C) confirming in all material respects the conclusions and findings set forth in each of the initial letters;
(ii) Xxxxxxxx & Company, LLP, with respect to the financial information of Northern Healthcare, incorporated by reference in the Final Memorandum, (A) confirming that they are independent public accountants with respect to Northern Healthcare, (B) stating, as of the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter; and.
(eg) The At the time of execution of this Agreement, the Representatives shall have received from each of XxXxxxxx & XxXxxxxxxx and Schlumberger Data and Technology Corporation a letter, in form and substance reasonably satisfactory to the Representatives, addressed to the Initial Purchasers and dated the date hereof covering certain matters relating to information about the reserves of the Company presented in the Pricing Disclosure Package.
(h) Each Issuer and each Guarantor shall have furnished to the Representative Representatives a certificate, dated the Closing Date, signed by of each Issuer’s and each Guarantor’s Chief Executive Officer and its Chief Financial Officer (or, in the case of any Guarantor that does not have officers holding such positions or positions of similar authority, of the Chief Executive Officer and Chief Accounting Financial Officer of the Company stating, as applicable, immediate or ultimate parent of such entity on behalf of such entity) stating that each of them severally represents that:
(i) The representations, warranties and agreements of the Company Issuers and the Guarantors contained herein, as applicable, in Section 1 are true and correct in all material respects (except with respect to representations, warranties and agreements already qualified by materiality) as if made on and as of the Closing Date (other than to the extent any such representation or warranty is made expressly to a certain date)Date, and the Company and the Guarantors have performed complied with all covenants and of their respective agreements contained herein in all material respects and satisfied all the conditions (after giving effect to all materiality qualifiers herein) on their part to be performed or satisfied hereunder, to the extent a party hereto, hereunder at or prior to the Closing Date; and the conditions set forth in Section 6 have been fulfilled; and;
(ii) They have He or she has carefully examined the Final Offering Memorandum (exclusive of any amendment or supplement thereto) and the Pricing Disclosure Package, and, in their opinion his or her opinion, (A) as of the Closing DateOffering Memorandum, the Final Memorandum did not include, and as of its date and on the Closing Date Date, and the Final Memorandum Pricing Disclosure Package, as of the Time of Sale, did not include and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required necessary in order to be stated therein or necessarymake the statements therein, in the light of the circumstances under which they were made, to make the statements therein not misleading, and (B) since the date of the Final Memorandumsuch documents, no event has occurred which that should have been set forth in an a supplement or amendment to the Final Offering Memorandum or supplement to the Final Memorandum.Pricing Disclosure Package that has not been so set forth; and
(fiii) Subsequent to Since the Execution Time or, if earlier, the respective dates as of which information is given in the Final Offering Memorandum (exclusive of any amendment or supplement thereto)and the Pricing Disclosure Package, there shall has not have been any development that resulted in a Material Adverse Effect or any development that could reasonably be expected to result in a Material Adverse Effect, whether or not arising in the ordinary course of business.
(i) Except as described in the Pricing Disclosure Package, neither the Company nor any of its subsidiaries has sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and since such date, there has not been any change or decrease specified in the letter capitalization or letters referred to in paragraph (c) long-term debt of the Company or (d) any of this Section 6; its subsidiaries or (ii) any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), prospectsresults of operations, earningsmembers’ equity, properties, management, business or properties prospects of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in each case except as could not, in the ordinary course aggregate, reasonably be expected to have a Material Adverse Effect.
(j) Subsequent to the execution and delivery of business, except as set forth in or contemplated this Agreement (i) no downgrading shall have occurred in the Final Memorandum rating accorded the Company’s or any of its subsidiaries’ debt securities or preferred stock by any “nationally recognized statistical rating organization” (exclusive as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any amendment of the Company’s or supplement thereto)any of its subsidiaries’ debt securities or preferred stock.
(k) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange, the Nasdaq Stock Market or in the over-the-counter market shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) trading in any securities of the Company on any exchange or in the over-the-counter market shall have been suspended or materially limited, (iii) a banking moratorium shall have been declared by federal or state authorities, (iv) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (v) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of whichinternational conditions on the financial markets in the United States shall be such), in any case referred as to in clause (i) or (ii) above, ismake it, in the sole judgment of the RepresentativeRepresentatives, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the offering, sale public offering or delivery of the Securities as Notes being delivered on such Delivery Date on the terms and in the manner contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto)Offering Memorandum.
(gl) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company's securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to At the Closing Date, the Company Notes shall have been designated for trading on the PORTAL Market.
(m) The Issuers and the Guarantors shall have entered into the Registration Rights Agreement and the Initial Purchasers or their counsel shall have received executed counterparts thereof.
(n) The Issuers, the Guarantors and the Trustee shall have executed and delivered the Indenture, and the Initial Purchasers or their counsel shall have received an executed counterpart thereof, duly executed by the Issuers, the Guarantors and the Trustee.
(o) The Issuers and the Guarantors shall have furnished the Representatives and counsel to the Representative Initial Purchasers with such further informationother certificates, certificates and opinions or other documents as the Representative they may have reasonably request.
(i) The Representative shall have received a certificate from the Companyrequested. All opinions, at the time of the execution of this Agreement and on the Closing Dateletters, signed by the Chief Accounting Officer of the Company, in respect of the financial data contained in footnote (1) to the Unaudited Pro Forma Condensed Combined Income Statement for the twelve months ended March 31, 2005 and the year ended December 31, 2004 relating to Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions" stating, as applicable, that:
(1) The financial statements attached to the certificate are , in fact, a true and accurate copy of the financial data for Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions" used to create the data contained in footnote (1) to the Unaudited Pro Forma Condensed Combined Income Statement for the twelve months ended March 31, 2005 and the year ended December 31, 2004 (the "FINANCIAL STATEMENTS");
(2) As members of management of Brentwood, Northern Healthcare and each of the hospitals consolidated under the column "Non-Significant Acquisitions," he is responsible for the fair presentation of its financial statements and he believes the statements of financial position and results of operations are fairly presented in conformity with accounting principles generally accepted in the United States applied on a basis consistent with that of the preceding periods;
(3) There are no unadjusted audit differences identified during the current audit and pertaining to the period presented;
(4) No plans or intentions exist that may materially affect the carrying value or classification of assets and liabilities;
(5) There are no material transactions that have not been properly recorded in the accounting records underlying the Financial Statements;
(6) There are no material weaknesses in internal control, including any for which he believes the cost of corrective actions exceeds the benefits and there have been no significant changes in internal control since December 31, 2004;
(7) No events or transactions have occurred since December 31, 2004 or are pending that would have a material effect on the financial statements at that date or for the period then ended, or that are of such significance in relation to the affairs of Brentwood, Northern Healthcare or each of the hospitals consolidated under the column "Non-Significant Acquisitions" to require mention in a note to the Financial Statements or the pro forma financial statements contained in the Final Memorandum in order to make them not misleading regarding the respective financial position, results of operations, or cash flows of Brentwood, Northern Healthcare or each of the hospitals consolidated under the column "Non-Significant Acquisitions."
(j) Prior to the Closing Date, the Acquisition shall have been consummated.
(k) Concurrently with the closing of the Offering, the Bridge Facility shall be fully repaid and all obligations of the Company and the guarantors thereunder shall be satisfied in full and discharged. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions evidence and certificates mentioned above or elsewhere in this Agreement shall not be deemed to be in compliance with the provisions hereof only if they are in all material respects reasonably satisfactory in form and substance to the Representative and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
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