EXHIBIT 1.1
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PROVINCE HEALTHCARE COMPANY
(a Delaware corporation)
7 1/2% Senior Subordinated Notes due 2013
PURCHASE AGREEMENT
Dated: May 21, 2003
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Table of Contents
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SECTION 1. Representations and Warranties by the Company..........................................2
(a) Representations and Warranties......................................................2
(i) Compliance with Registration Requirements...................................2
(ii) Incorporated Documents.....................................................3
(iii) Independent Accountants...................................................3
(iv) The Financial Statements...................................................3
(v) No Material Adverse Change in Business......................................4
(vi) Good Standing of the Company...............................................4
(vii) Corporate Subsidiaries....................................................4
(viii) Partnerships.............................................................5
(ix) Limited Liability Companies................................................5
(x) Actions of Subsidiaries.....................................................6
(xi) Capitalization; Authorization of Conversion Shares.........................6
(xii) Authorization of Agreement................................................6
(xiii) Authorization of the Indenture...........................................6
(xiv) Authorization of the Notes................................................7
(xv) Description of the Notes and the Indenture.................................7
(xvi) Absence of Defaults and Conflicts.........................................7
(xvii) Absence of Labor Dispute.................................................8
(xviii) Absence of Proceedings..................................................8
(xix) Possession of Intellectual Property.......................................8
(xx) Absence of Further Requirements............................................8
(xxi) Possession of Licenses and Permits........................................8
(xxii) Accounts Receivable......................................................9
(xxiii) Actions with Respect to Medicare and Medicaid...........................9
(xxiv) Regulatory Filings.......................................................10
(xxv) Title to Property.........................................................10
(xxvi) Investment Company Act...................................................11
(xxvii) Environmental Laws......................................................11
(xxviii) Insurance..............................................................11
(xxix) Internal Accounting Controls.............................................11
(xxx) Solvency..................................................................12
(xxxi) No Event of Default Under Senior Indebtedness............................12
(xxxii) Affiliates..............................................................12
(b) Officer's Certificates...............................................................12
SECTION 2. Sale and Delivery to Underwriters; Closing.............................................12
(a) Sale of the Notes...................................................................12
(b) Payment..............................................................................12
(c) Denominations; Registration..........................................................13
(d) Appointment of Qualified Independent Underwriter.....................................13
SECTION 3. Covenants of the Company...............................................................13
(a) Prospectus Supplement; Delivery of Prospectus........................................13
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(b) Continued Compliance with Securities Laws............................................13
(c) Reporting Requirements...............................................................14
(d) Filing of Amendments.................................................................14
(e) Notice Upon Effectiveness; Commission Requests.......................................14
(f) Delivery of the Registration Statement...............................................14
(g) Blue Sky Qualification of Notes for Offer and Sale...................................15
(h) Rule 158.............................................................................15
(i) Rating of Notes......................................................................15
(j) DTC..................................................................................15
(k) Use of Proceeds......................................................................15
(l) Investment Company Act...............................................................15
(m) No Stabilization or Manipulation.....................................................15
(n) Restrictions on Debt Securities of the Company.......................................16
SECTION 4. Payment of Expenses....................................................................16
(a) Expenses.............................................................................16
(b) Termination of Agreement.............................................................16
SECTION 5. Conditions of Underwriters' Obligations................................................17
(a) Effectiveness and Accuracy of Registration Statement.................................17
(b) Opinion of Counsel for Company.......................................................17
(c) Opinion of Counsel for Underwriters..................................................17
(d) Officers' Certificate................................................................17
(e) Accountants' Comfort Letter..........................................................18
(f) Bring-down Comfort Letter............................................................18
(g) Maintenance of Rating................................................................18
(h) Indenture............................................................................18
(i) Senior Credit Agreement Waiver.......................................................18
(j) Additional Documents.................................................................18
(k) Termination of Agreement.............................................................18
SECTION 6. Indemnification........................................................................19
(a) Indemnification of Underwriters......................................................19
(b) Indemnification of Company, Directors and Officers...................................20
(c) Actions Against Parties; Notification................................................20
(d) Settlement Without Consent if Failure to Reimburse...................................21
SECTION 7. Contribution...........................................................................22
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.........................22
SECTION 9. Termination of Agreement...............................................................23
(a) Termination; General................................................................23
(b) Liabilities..........................................................................23
SECTION 10. Default by One or More of the Underwriters............................................23
SECTION 11. Notices...............................................................................24
SECTION 12. Parties...............................................................................24
SECTION 13. GOVERNING LAW AND TIME................................................................24
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SECTION 14. Effect of Headings....................................................................24
SECTION 15. Counterparts..........................................................................24
SCHEDULES
Schedule A - List of Underwriters..................................................Sch A-1
Schedule B - List of Subsidiaries..................................................Sch B-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel.......................................A-1
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PROVINCE HEALTHCARE COMPANY
(a Delaware corporation)
$200,000,000
7 1/2% Senior Subordinated Notes due 2013
PURCHASE AGREEMENT
May 21, 2003
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Wachovia Securities, Inc.
Banc of America Securities LLC
Citigroup Global Markets Inc.
SunTrust Capital Markets, Inc.
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Province Healthcare Company, a Delaware corporation (the
"Company"), confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), Wachovia Securities,
Inc., Banc of America Securities LLC, Citigroup Global Markets Inc., SunTrust
Capital Markets, Inc. and U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. (the "Underwriters")
with respect to the issue and sale by the Company and the purchase by the
Underwriters of $200,000,000 aggregate principal amount of the Company's 7 1/2%
Senior Subordinated Notes due 2013 (the "Notes"). The Notes are to be sold to
each Underwriter, acting severally and not jointly, in the respective principal
amounts as are set forth in Schedule A hereto opposite the name of such
Underwriter. The Notes are to be issued pursuant to an indenture dated as of May
27, 2003, as supplemented by a supplemental indenture dated as of May 27, 2003
(together, the "Indenture"), between the Company and U.S. Bank Trust National
Association, as trustee (the "Trustee").
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(Registration No. 333-86578). The registration statement includes a prospectus
relating to shares of common stock, par value $0.01 per share, and debt
securities of the Company and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended (the "1933
Act"), pursuant to the registration statement. The registration statement has
been declared effective by the Commission and the Indenture has been qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). As provided
in Section 3(a), a prospectus supplement reflecting the terms of the Notes, the
terms of the offering thereof and other matters set forth
therein has been prepared and will be filed pursuant to Rule 424 under the 1933
Act. Such prospectus supplement, in the form first filed after the date hereof
pursuant to Rule 424, and as amended or supplemented after such date, is herein
referred to as the "Prospectus Supplement." Such registration statement as
amended at the date hereof, including the exhibits thereto and the documents
incorporated by reference therein, is hereinafter referred to as the
"Registration Statement," and the base prospectus included in the Registration
Statement relating to all offerings of securities under the Registration
Statement, as supplemented by the Prospectus Supplement, is herein called the
"Prospectus," except that, if such base prospectus is amended or supplemented on
or prior to the date on which the Prospectus Supplement is first filed pursuant
to Rule 424, the term "Prospectus" shall refer to the base prospectus as so
amended or supplemented and as supplemented by the Prospectus Supplement, in
either case including the documents filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"),
that are incorporated by reference therein.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (or other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is included or incorporated by reference
in the Registration Statement or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the Registration
Statement or the Prospectus shall be deemed to mean and include the filing of
any document under the 1934 Act which is incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.
The Company understands that the Underwriters propose to make
a public offering of the Notes as soon as the Underwriters deem advisable after
this Agreement has been executed and delivered.
SECTION 1. Representations and Warranties by the Company. (a)
Representations and Warranties. The Company represents and warrants to the
Underwriters, as of the date hereof and as of the Delivery Date referred to in
Section 2(b) hereof, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied
with. On the original effective date of the Registration Statement, on
the effective date of the most recent post-effective amendment thereto,
if any, and on the date of the filing by the Company of any annual
report on Form 10-K after the original filing of the Registration
Statement, the Registration Statement complied in all material respects
with the requirements of the 1933 Act, the rules and regulations of the
Commission thereunder (the "1933 Act Regulations"), the 1939 Act and
the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations") and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; on
the date hereof and at the Delivery Date (as hereinafter defined), (A)
the
Registration Statement and any amendments and supplements thereto
comply and will comply in all material respects with the requirements
of the 1933 Act, the 1933 Act Regulations, the 1939 Act and the 1939
Act Regulations, (B) neither the Registration Statement nor any
amendment or supplement thereto includes or will include an untrue
statement of a material fact or omits or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and (C) neither the Prospectus nor
any amendment or supplement thereto includes or will include an untrue
statement of a material fact or omits or will omit to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of or relating to
any Underwriter, directly or through ▇▇▇▇▇▇▇ ▇▇▇▇▇, expressly for use
in the Registration Statement or the Prospectus.
Each Prospectus and Prospectus Supplement filed as part of the
Registration Statement, as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied
when so filed in all material respects with the 1933 Act Regulations,
and each Prospectus and Prospectus Supplement delivered to the
Underwriters for use in connection with this offering was identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act,
for so long as the Prospectus shall be required to be delivered in
connection with sales of Notes hereunder, will comply in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder (the "1934 Act Regulations"),
as applicable, and, when read together with the other information in
the Prospectus at the time the Registration Statement became effective,
at the time the Prospectus was issued and at the Delivery Date, did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included or
incorporated by reference in the Registration Statement and the
Prospectus are independent certified public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iv) The Financial Statements. The financial statements,
including the notes thereto, and the supporting schedules included in
the Registration Statement and the Prospectus present fairly the
financial position of the Company and its subsidiaries on a
consolidated basis, as of the dates indicated, and the respective
results of operations for the periods specified, in conformity with
generally accepted accounting principles (GAAP) applied on a consistent
basis during the periods involved. The supporting
schedules, if any, included in the Prospectus present fairly in
accordance with GAAP the information required to be stated therein. The
selected historical financial data included in the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in
the Prospectus. The pro forma financial statements and the related
notes thereto included in the Registration Statement and the Prospectus
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate
to give effect to the transactions and circumstances referred to
therein.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Prospectus,
except as otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
Subsidiaries (as defined below), considered as one enterprise, whether
or not arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the
Company or any of its Subsidiaries (as defined below), other than those
in the ordinary course of business, which are material with respect to
the Company and its Subsidiaries (as defined below), considered as one
enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class if its capital
stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement, the Indenture and the Notes; and
the Company is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(vii) Corporate Subsidiaries. All of the consolidated
corporations, partnerships (including, without limitation, general,
limited and limited liability partnerships) and limited liability
companies in which the Company has a direct or indirect ownership
interest are listed in Schedule B to this Agreement (collectively, the
"Subsidiaries"). Each Subsidiary that is a corporation (a "Corporate
Subsidiary") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus. Each Corporate Subsidiary is duly qualified and in good
standing as a foreign corporation authorized to do business in each
other jurisdiction in which the nature of its business or its ownership
or leasing of property requires such qualification, except where the
failure to be so qualified would not have a Material Adverse Effect.
All of the outstanding shares of capital stock of each Corporate
Subsidiary have been duly authorized and validly issued,
are fully paid and nonassessable, were not issued in violation of or
subject to any preemptive or similar rights, and, except as set forth
on Schedule B, are owned by the Company directly, or indirectly through
one of its Subsidiaries, free and clear of all security interests,
liens, encumbrances, equities and claims; and no options, warrants or
other rights to purchase, agreements or other obligations to issue or
other rights to convert any obligations into shares of capital stock or
ownership interests in any Corporate Subsidiary are outstanding.
(viii) Partnerships. Each Subsidiary that is a partnership (a
"Partnership") has been duly organized, is validly existing as a
partnership in good standing under the laws of its jurisdiction of
organization and has the partnership power and authority to own, lease
and operate its properties and to conduct its business as described in
the Prospectus. Each Partnership is duly qualified and in good standing
as a foreign partnership authorized to do business in each other
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the
failure to be so qualified would not have a Material Adverse Effect.
The capital contributions with respect to the outstanding units of each
Partnership have been made to the Partnership. Except as set forth in
Schedule B, the general and limited partnership interests therein held
directly or indirectly by the Company are owned free and clear of all
security interests, liens, encumbrances, equities and claims; and no
options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations into
ownership interests in any Partnership are outstanding. Each
partnership agreement pursuant to which the Company or a Subsidiary
holds an interest in a Partnership is in full force and effect and
constitutes the legal, valid and binding agreement of the parties
thereto, enforceable against such parties in accordance with the terms
thereof, except as enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of
creditors' rights generally. There has been no material breach of or
default under, and no event which with notice or lapse of time would
constitute a material breach of or default under, such partnership
agreements by the Company or any Subsidiary or, to the Company's
knowledge, any other party to such agreements.
(ix) Limited Liability Companies. Each Subsidiary that is a
limited liability company (an "LLC") has been duly organized, is
validly existing as a limited liability company in good standing under
the laws of its jurisdiction of organization and has the power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus. Each LLC is duly qualified and
in good standing as a foreign limited liability company authorized to
do business in each other jurisdiction in which the nature of its
business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not
have a Material Adverse Effect. The capital contributions with respect
to the outstanding membership interests of each LLC have been made to
each such LLC. All outstanding membership interests in the LLCs were
issued and sold in compliance with the applicable operating agreements
of such LLCs and all applicable federal and state securities laws, and,
except as set forth in Schedule B, the membership interests therein
held directly or indirectly by the Company are owned free and clear of
all security interests, liens, encumbrances and equities and claims;
and no options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any obligations
into ownership interests in any LLC are outstanding. Each operating
agreement pursuant to which the Company or a Subsidiary holds a
membership interest in an LLC is in full force and effect and
constitutes the legal, valid and binding agreement of the parties
thereto, enforceable against such parties in accordance with the terms
thereof, except as enforcement thereof may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of
creditors' rights generally. There has been no material breach of or
default under, and no event which with notice or lapse of time would
constitute a material breach of or default under, such operating
agreements by the Company or any Subsidiary or, to the Company's
knowledge, any other party to such agreements.
(x) Actions of Subsidiaries. Except to the extent disclosed in
the Prospectus, each of the hospitals described in the Prospectus as
owned or leased by the Company is owned or leased and operated by a
Subsidiary in which the Company directly or indirectly owns at least
80% of the outstanding ownership interests. Except as disclosed in the
Prospectus, there are no encumbrances or restrictions on the ability of
any Subsidiary (A) to pay any dividends or make any distributions on
such Corporate Subsidiary's capital stock, such Partnership's
partnership interests or such LLC's membership interests or to pay any
indebtedness owed to the Company or any other Subsidiary, (B) to make
any loans or advances to, or investments in, the Company or any other
Subsidiary or (C) to transfer any of its property or assets to the
Company or any other Subsidiary.
(xi) Capitalization; Authorization of Conversion Shares. The
authorized, issued and outstanding capital stock of the Company is as
set forth in the Prospectus in the column entitled "Actual" under the
caption "Capitalization" (except for subsequent issuances, if any,
pursuant to reservations, agreements or employee benefit plans referred
to in the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus). The shares of
issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable;
none of the outstanding shares of capital stock of the Company was
issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
(xii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(xiii) Authorization of the Indenture. The Indenture has been
duly authorized by the Company and duly qualified under the 1939 Act
and, when duly executed and delivered by the Company and the Trustee,
will constitute a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as
(x) the enforceability thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws of equity
affecting enforcement of creditors' rights generally and (y) the
enforceability thereof may be limited by general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(xiv) Authorization of the Notes. The Notes have been duly
authorized and, at the Delivery Date, will have been duly executed by
the Company and, when authenticated, issued and delivered in the manner
provided for in the Indenture and delivered against payment of the
purchase price therefor as provided in this Agreement, will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and (y) the enforceability
thereof may be limited by general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law),
and will be in the form contemplated by, and entitled to the benefits
of, the Indenture.
(xv) Description of the Notes and the Indenture. The Notes and
the Indenture will conform in all material respects to the respective
statements relating thereto contained in the Prospectus and will be
substantially in the respective forms previously delivered to the
Underwriters.
(xvi) Absence of Defaults and Conflicts. Neither the Company
nor any of its Subsidiaries is in violation of its certificate of
incorporation or by-laws or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any
Subsidiary is subject (collectively, "Agreements and Instruments"),
except for such defaults that would not result in a Material Adverse
Effect; and the execution, delivery and performance of this Agreement,
the Indenture and the Notes and the consummation of the transactions
contemplated herein and in the Prospectus (including the issuance and
sale of the Notes and the use of the proceeds from the sale of the
Notes as described in the Prospectus under the caption "Use of
Proceeds") and compliance by the Company with its obligations
thereunder have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Subsidiary pursuant to, the
Agreements and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation
of the provisions of the certificate of incorporation or by-laws of the
Company or any Subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of its assets,
properties or operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any Subsidiary.
No event has occurred nor has any circumstance arisen which, had the
Notes been issued
on any given Delivery Date, would constitute an Event of Default (as
such term is defined in the Indenture).
(xvii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any Subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any Subsidiary's principal suppliers, customers or contractors,
which, in either case, may reasonably be expected to result in a
Material Adverse Effect.
(xviii) Absence of Proceedings. Except as disclosed in the
Prospectus, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any Subsidiary
which might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to affect the properties
or assets of the Company or any Subsidiary, such that it might
reasonably be expected to result in a Material Adverse Effect, or which
might be expected to affect the consummation of the transactions
contemplated in this Agreement, or the performance by the Company of
its obligations hereunder; the resolution of pending legal or
governmental proceedings to which the Company or any Subsidiary is a
party or of which any of their respective property or assets is the
subject which are not described in the Prospectus, including ordinary
routine litigation incidental to the business, when considered
together, could not reasonably be expected to result in a Material
Adverse Effect.
(xix) Possession of Intellectual Property. The Company and its
Subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its Subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
Subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy would result in a Material Adverse Effect.
(xx) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder in connection with the offering, issuance or
sale of the Notes hereunder or the consummation of the transactions
contemplated by this Agreement and the Indenture by the Company, except
such as have been already obtained.
(xxi) Possession of Licenses and Permits. Each of the Company
and its Subsidiaries have operated and currently operates its business
in compliance with the
requirements of all laws, rules, regulations and orders applicable to
the Company or such Subsidiaries or their business, and has filed all
notices, reports, documents or other information required to be filed
thereunder, except where the failure to comply with such requirement
could not reasonably be expected to have a Material Adverse Effect.
Each of the Company and its Subsidiaries holds all certificates,
consents, exemptions, orders, licenses, authorizations, accreditations,
permits or other approvals or rights from all governmental authorities,
all self-regulatory organizations, all governmental and private
accrediting bodies and all courts and other tribunals (collectively,
"Permits") which are necessary to own their properties and to conduct
its business, including, without limitation, such Permits as are
required (i) under such federal and state healthcare laws as are
applicable to the Company and its Subsidiaries and (ii) with respect to
those facilities operated by the Company or any Subsidiary of the
Company that participate in Medicare and/or Medicaid, to receive
reimbursement thereunder, except for such failures to have Permits
which would not, individually or in the aggregate, result in a Material
Adverse Effect. Each of the Company and its Subsidiaries has fulfilled
and performed all of its material obligations with respect to such
Permits, and no event or change in condition has occurred which allows,
or after notice or lapse of time would allow, revocation or termination
thereof or results in any other material impairment of the rights of
the holder of any such Permit, except as to such qualifications as may
be set forth in the Prospectus and except for such failures which would
not, individually or in the aggregate, result in a Material Adverse
Effect. During the period for which financial statements are included
in the Prospectus, denials by third-party payors of claims for
reimbursement for services rendered by the Company or any Subsidiary
have not had a Material Adverse Effect, and any such denials are either
under appeal or the Company or such Subsidiary has ceased seeking
reimbursement for the services or supplies to which they relate.
(xxii) Accounts Receivable. The accounts receivable of the
Company and its Subsidiaries have been and will continue to be adjusted
to reflect reimbursement policies of third-party payors, such as
Medicare, Medicaid, Medical, Blue Cross/Blue Shield, private insurance
companies, health maintenance organizations, preferred provider
organizations, managed care systems and other third-party payors. The
accounts receivable relating to such third-party payors do not and
shall not exceed amounts the Company and its Subsidiaries are entitled
to receive, subject to adjustments to reflect reimbursement policies of
third-party payors and normal discounts in the ordinary course of
business.
(xxiii) Actions with Respect to Medicare and Medicaid. None of
the Company, its Subsidiaries or any of their respective officers or
directors or, to the knowledge of the Company, any employee or other
agent of the Company or its Subsidiaries or any stockholder of any
Subsidiary has engaged on behalf of the Company or its Subsidiaries in
any of the following: (A) knowingly and willfully making or causing to
be made a false statement or representation of a material fact in any
applications for any benefit or payment under the Medicare or Medicaid
program or from any third party (where applicable federal or state law
prohibits such payments to third parties); (B) knowingly and willfully
making or causing to be made any false statement or representation of a
material fact for use in determining rights to any benefit or payment
under the Medicare or Medicaid program or from any third party (where
applicable federal or state law prohibits such payments to third
parties); (C) failing to disclose knowledge by a claimant of the
occurrence of any event affecting the initial or continued right to any
benefit or payment under the Medicare or Medicaid program or from any
third party (where applicable federal or state law
prohibits such payments to third parties) on its own behalf or on
behalf of another, with intent to secure such benefit or payment
fraudulently; and (D) knowingly and willfully offering, paying,
soliciting or receiving any remuneration (including any kickback, bribe
or rebate), directly or indirectly, overtly or covertly, in cash or in
kind (1) in return for referring an individual to a person for the
furnishing or arranging for the furnishing of any item or service for
which payment may be made in whole or in part by Medicare or Medicaid
or any third party (where applicable federal or state law prohibits
such payments to third parties) or (2) in return for purchasing,
leasing or ordering or arranging for or recommending the purchasing,
leasing or ordering of any good, facility, service or item for which
payment may be made in whole or in part by Medicare or Medicaid or any
third party (where applicable federal or state law prohibits such
payments to third parties); provided, however, that it is agreed and
understood that (x) from time to time the Company settles, without
admitting liability, claims made by governmental authorities which
allege conduct which may be deemed to violate clause (A) or (B) above;
(y) such settlements have not, individually or in the aggregate,
resulted in a Material Adverse Effect; and (z) such claims and
settlements do not constitute a breach of the representations and
warranties contained in this paragraph (xxii).
(xxiv) Regulatory Filings. Neither the Company nor any of its
Subsidiaries has failed to file with applicable regulatory authorities
any statement, report, information or form required by any applicable
law, regulation or order, except where the failure to be so in
compliance would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; all such filings or
submissions were in material compliance with applicable laws when filed
and no material deficiencies have been asserted by any regulatory
commission, agency or authority with respect to any such filings or
submissions.
(xxv) Title to Property. The Company and its Subsidiaries have
good and marketable title to all real property owned by the Company and
its Subsidiaries and good title to all other properties owned by them,
in each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such
as (a) are described in the Prospectus (including, without limitation,
liens of the senior lenders pursuant to the Third Amended and Restated
Senior Credit Agreement, dated as of November 13, 2001, between the
Company and the other parties thereto, (as the same has been amended or
otherwise modified from time to time)) or (b) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company or any of its Subsidiaries; and all of the leases and
subleases material to the business of the Company and its Subsidiaries,
considered as one enterprise, and under which the Company or any of its
Subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any Subsidiary has any
notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any Subsidiary under any
of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such Subsidiary
to the continued possession of the leased or subleased premises under
any such lease or sublease.
(xxvi) Investment Company Act. The Company is not, and upon
the issuance and sale of the Notes as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
(xxvii) Environmental Laws. Except as described in the
Prospectus and except as would not, singly or in the aggregate, result
in a Material Adverse Effect, (A) neither the Company nor any of its
Subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of medical waste, such as pharmaceuticals,
biological materials and disposable medical instruments, chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Company and its
Subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating to any Environmental Law against
the Company or any of its Subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for cleanup or remediation, or an action, suit or proceeding by
any private party or governmental body or agency, against or affecting
the Company or any of its Subsidiaries relating to Hazardous Materials
or any Environmental Laws.
(xxviii) Insurance. The Company and its Subsidiaries carry or
are entitled to the benefits of insurance, with financially sound and
reputable insurers, in such amounts and covering such risks as are
generally maintained by companies engaged in the same or similar
businesses, and all such insurance is in full force and effect.
(xxix) Internal Accounting Controls. The Company maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (a) transactions are executed in accordance with
management's general or specific authorizations; (b) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (c) access to assets is permitted only
in accordance with management's general or specific authorization; and
(d) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxx) Solvency. The Company is, and immediately after the
Delivery Date will be, Solvent. As used herein, the term "Solvent"
means, with respect to the Company on a particular date, that on such
date (A) the fair market value of the assets of the Company is greater
than the total amount of liabilities (including contingent liabilities)
of the Company, (B) the present fair salable value of the assets of the
Company is greater than the amount that will be required to pay the
probable liabilities of the Company on its debts as they become
absolute and matured, (C) the Company is able to realize upon its
assets and pay its debts and other liabilities, including contingent
obligations, as they mature, and (D) the Company does not have
unreasonably small capital.
(xxxi) No Event of Default Under Senior Indebtedness. No event
of default exists under any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument constituting
Senior Indebtedness (as defined in the Indenture), other than those
that have been waived under the Third Amended and Restated Senior
Credit Agreement, dated November 13, 2001 (as the same has been amended
or otherwise modified).
(xxxii) Affiliates. No relationship, direct or indirect,
exists between or among any of the Company or any affiliate of the
Company, on the one hand, and any director, officer, stockholder,
customer or supplier of any of them, on the other hand, which is
required by the 1933 Act or by the 1933 Act Regulations to be described
in the Registration Statement or the Prospectus which is not so
described or is not described as required.
(b) Officer's Certificates. Any certificate signed by any
officer of the Company or any of the Subsidiaries delivered to the Underwriters
or to counsel for the Underwriters shall be deemed a representation and warranty
by the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing. (a)
Sale of the Notes. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, the
aggregate principal amount of Notes set forth in Schedule A opposite the name of
such Underwriter, plus any additional principal amount of Notes which such
Underwriter may become obligated to purchase pursuant to the provision of
Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery
of certificates for, the Notes shall be made at the office of Shearman &
Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place
as shall be agreed upon by the Underwriters and the Company, at 9:00 A.M.
(Eastern time) on May 27, 2003 (unless postponed in accordance with the
provisions of Section 11), or such other time not later than ten business days
after such date as shall be agreed upon by the Underwriters and the Company
(such time and date of payment and delivery being herein called the "Delivery
Date").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Underwriters for the respective accounts of the Underwriters of the Notes to
be purchased by them. It is understood that each Underwriter has authorized
▇▇▇▇▇▇▇ ▇▇▇▇▇, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Notes which it has agreed to purchase.
▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as representative of the Underwriters, may
(but shall not be obligated to) make payment of the purchase price for the Notes
to be purchased by any Underwriter whose funds have not been received by the
Delivery Date, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(c) Denominations; Registration. Certificates for the Notes
shall be in such denominations ($1,000 or integral multiples thereof) and
registered in such names as the Underwriters may request in writing at least one
full business day before such Delivery Date. The certificates representing the
Notes shall be registered in the name of Cede & Co. and shall be made available
for examination and packaging by the Underwriters in The City of New York not
later than 10:00 A.M. on the last business day prior to such Delivery Date.
(d) Appointment of Qualified Independent Underwriter. The
Company hereby confirms its engagement of Citigroup Global Markets Inc. as, and
Citigroup Global Markets Inc. hereby confirms its agreement with the Company to
render services as, a "qualified independent underwriter" within the meaning of
Rule 2720 of the Conduct Rules of the National Association of Securities
Dealers, Inc. with respect to the offering and sale of the Notes. Citigroup
Global Markets Inc., solely in its capacity as qualified independent underwriter
and not otherwise, is referred to herein as the "Independent Underwriter."
SECTION 3. Covenants of the Company. The Company covenants
with each Underwriter as follows:
(a) Prospectus Supplement; Delivery of Prospectus. Immediately
following the execution of this Agreement, the Company will prepare a Prospectus
Supplement that complies with the 1933 Act and the 1933 Act Regulations and that
sets forth the principal amount at maturity of the Notes and their terms, the
name of each Underwriter participating in the offering and the principal amount
at maturity of the Notes that each severally and not jointly has agreed to
purchase, the price at which the Notes are to be purchased by the Underwriters
from the Company, any selling concession and reallowance and any delayed
delivery arrangements, and such other information as the Underwriters and the
Company deem appropriate in connection with the offering of the Notes. The
Company will promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish
to the Underwriters as many copies of the Prospectus as they shall reasonably
request.
(b) Continued Compliance with Securities Laws. The Company
will comply to the best of its ability with the 1933 Act and the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations, and the 1939 Act and the
1939 Act Regulations so as to permit the completion of the distribution of the
Notes as contemplated in this Agreement and the Prospectus. If, at any time when
a prospectus is required by the 1933 Act to be delivered in connection with
sales of the Notes, any event shall occur or condition exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or counsel
for the Company, to amend the Registration
Statement or amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of either such counsel,
at any such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(d), such amendment or supplement as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
or the Prospectus comply with such requirements.
(c) Reporting Requirements. During the period when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Notes, the Company will, subject to Section 3(d) hereof, file promptly
all documents required to be filed with the Commission pursuant to Section 13,
14 or 15(d) of the 1934 Act.
(d) Filing of Amendments. During the period when a prospectus
is required by the 1933 Act to be delivered in connection with sales of the
Notes, the Company will inform the Underwriters of its intention to file any
amendment to the Registration Statement, any supplement to the Prospectus or any
document that would as a result thereof be incorporated by reference in the
Prospectus; will furnish the Underwriters with copies of any such amendment,
supplement or other document a reasonable time in advance of filing; and will
not file any such amendment, supplement or other document in a form to which the
Underwriters or counsel for the Underwriters shall reasonably object.
(e) Notice Upon Effectiveness; Commission Requests. During the
period when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Notes, the Company will notify the Underwriters
immediately, and confirm the notice in writing, (i) of the effectiveness of any
amendment to the Registration Statement, (ii) of the mailing or the delivery to
the Commission for filing of any supplement to the Prospectus or any document
that would as a result thereof be incorporated by reference in the Prospectus,
(iii) of the receipt of any comments from the Commission with respect to the
Registration Statement, the Prospectus or the Prospectus Supplement, (iv) of any
request by the Commission for any amendment to the Registration Statement or any
supplement to the Prospectus or for additional information relating thereto or
to any document incorporated by reference in the Prospectus and (v) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of the qualification of the Notes
for offering or sale in any jurisdiction, or of the institution or threatening
of any proceeding for any of such purposes. The Company will use every
reasonable effort to prevent the issuance of any such stop order or of any order
suspending such qualification and, if any such order is issued, to obtain the
lifting thereof at the earliest possible moment.
(f) Delivery of the Registration Statement. The Company has
furnished or will furnish to the Underwriters, without charge, as many signed
copies of the Registration Statement as originally filed and of all amendments
thereto, whether filed before or after such Registration Statement became
effective, copies of all exhibits and documents filed therewith or incorporated
by reference therein (through the end of the period when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the Notes)
and signed copies of all consents
and certificates of experts, as the Underwriters may reasonably request, and has
furnished or will furnish to each of the Underwriters one conformed copy of the
Registration Statement (as originally filed) and of each amendment thereto
(including documents incorporated by reference into the Prospectus but without
exhibits). The copies of the Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(g) Blue Sky Qualification of Notes for Offer and Sale. The
Company will use its best efforts, in cooperation with the Underwriters, to
qualify the Notes for offering and sale under the applicable securities laws of
such states and other jurisdictions as the Underwriters may designate and will
maintain such qualifications in effect for a period of not less than one year
from the date hereof; provided, however, that the Company shall not be obligated
to file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified or to subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so subject. The Company will file
such statements and reports as may be required by the laws of each jurisdiction
in which the Notes have been qualified as above to continue such qualification
in effect for a period of not less than one year from the date hereof. The
Company will also supply the Underwriters with such information as is necessary
for the determination of the legality of the Notes for investment under the laws
of such jurisdictions as the Underwriters may request.
(h) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(i) Rating of Notes. The Company shall take all reasonable
action necessary to enable ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and
Standard & Poor's Ratings Services, a division of McGraw Hill, Inc. ("S&P") to
provide their respective credit ratings of the Notes issued by the Company.
(j) DTC. The Company will cooperate with the Underwriters and
use its best efforts to permit the Notes to be eligible for clearance and
settlement through the facilities of DTC.
(k) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Notes in the manner specified in the
Prospectus under the caption "Use of Proceeds."
(l) Investment Company Act. The Company will take such steps
as shall be necessary to ensure that it shall not become an "investment company"
within the meaning of such term under the Investment Company Act, and the rules
and regulations of the Commission thereunder.
(m) No Stabilization or Manipulation. None of the Company or
any of its affiliates will take, directly or indirectly, any action which is
designed to stabilize or manipulate,
or which constitutes or which might reasonably be expected to cause or result in
stabilization or manipulation, of the price of any security of the Company in
connection with the offering of the Notes.
(n) Restrictions on Debt Securities of the Company. During a
period of 90 days from the date of the Prospectus Supplement, the Company will
not, without the prior written consent of the Underwriters, (i) directly or
indirectly, offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or
warrant for the sale of, lend or otherwise transfer or dispose of any debt
securities of the Company or any securities convertible into or exchangeable or
exercisable for or repayable with debt securities of the Company or file any
registration statement under the 1933 Act with respect thereto; or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of ownership of the
debt securities of the Company, whether any such swap or transaction described
in clause (i) or (ii) above is to be settled by delivery of debt securities of
the Company or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to the Notes to be sold hereunder.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to
the performance of its obligations under this Agreement, the Notes and the
Indenture, including (i) the preparation, printing and any filing of the
Registration Statement (including financial statements and any schedules or
exhibits and any documents incorporated therein by reference), as originally
filed and as amended, and the Prospectus and any amendments or supplements
thereto and the cost of furnishing copies thereof, in accordance with Section 3
of this Agreement, to the Underwriters, (ii) the preparation, printing and
delivery to the Underwriters of this Agreement, any Agreement among
Underwriters, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the Notes,
(iii) the preparation, issuance and delivery of the certificates for the Notes
to the Underwriters, including any charges of DTC in connection therewith, (iv)
the fees and disbursements of the Company's counsel, accountants and other
advisors, (v) the qualification of the Notes under securities laws in accordance
with the provisions of Section 3(g) hereof and any filing for review of the
offering with the National Association of Securities Dealers, Inc., including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
the Blue Sky Survey, any supplement thereto and any Legal Investment Survey,
(vi) the fees and expenses of the Trustee, including the fees and disbursements
of counsel for the Trustee in connection with the Indenture and the Notes, (vii)
any fees payable in connection with the rating of the Notes and (viii) the fees
and expenses of the Independent Underwriter.
(b) Termination of Agreement. If this Agreement is terminated
by the Underwriters in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the several Underwriters to purchase and pay for the Notes that
they have respectively agreed to purchase pursuant to the terms hereof are
subject to the accuracy, when made and on the Delivery Date, of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of the Subsidiaries
delivered pursuant to the provisions hereof and to the performance by the
Company of its covenants and other obligations hereunder:
(a) Effectiveness and Accuracy of Registration Statement. At
the Delivery Date, (i) no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission and (ii) there shall not have
come to the Underwriters' attention any facts that would cause the Underwriters
to believe that the Prospectus, at the time it was required to be delivered to a
purchaser of the Notes, contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
the light of the circumstances existing at such time, not misleading.
(b) Opinion of Counsel for Company. At the Delivery Date, the
Underwriters shall have received the favorable opinion, dated as of the Delivery
Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, a Professional Limited Liability
Company, counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters to the effect set forth in Exhibit A hereto
and to such further effect as counsel to the Underwriters may reasonably
request.
(c) Opinion of Counsel for Underwriters. At the Delivery Date,
the Underwriters shall have received the favorable opinion, dated as of the
Delivery Date, of Shearman & Sterling, counsel for the Underwriters, in form and
substance satisfactory to the Underwriters. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other than the
law of the State of New York, the federal law of the United States and the
General Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Underwriters. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and the Subsidiaries and
certificates of public officials.
(d) Officers' Certificate. At the Delivery Date, there shall
not have been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any Material Adverse Effect in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and the Subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Underwriters shall have received a certificate of the President or a Vice
President of the Company and of the chief financial officer or chief accounting
officer of the Company, dated as of the Delivery Date, to the effect that (i)
there has been no such Material Adverse Effect, (ii) the representations and
warranties in Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of the Delivery Date, and (iii) the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the Delivery Date.
(e) Accountants' Comfort Letter. At the time of the execution
of this Agreement, the Underwriters shall have received from Ernst & Young LLP a
letter dated such date, in form and substance satisfactory to the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to Underwriters with respect to the
financial statements and certain financial information contained in the
Prospectus.
(f) Bring-down Comfort Letter. At the Delivery Date, the
Underwriters shall have received from Ernst & Young LLP a letter, dated as of
the Delivery Date, to the effect that it reaffirms the statements made in the
letters furnished pursuant to subsection (d) of this Section 5, except that the
specified date referred to shall be a date not more than three business days
prior to the Delivery Date.
(g) Maintenance of Rating. At the Delivery Date, the Notes
shall be rated at least B- by S&P and B3 by Moody's, and the Company shall have
delivered to the Underwriters a letter, dated the Delivery Date, from such
rating agency, or other evidence satisfactory to the Underwriters, confirming
that the Notes have such rating; and since the date of this Agreement, there
shall not have occurred a downgrading in the rating assigned to the Notes or any
of the Company's other debt securities by any "nationally recognized statistical
rating agency," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the 1933 Act, and no such securities rating agency shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of the Notes or any of the Company's other
debt securities.
(h) Indenture. The Indenture shall have been duly executed and
delivered by the Company and the Trustee and the Notes shall have been duly
executed and delivered by the Company and duly authenticated by the Trustee.
(i) Senior Credit Agreement Waiver. At the Delivery Date, the
Underwriters shall have received from the Company a copy of the waiver of
certain of the Company's obligations under the Third Amended and Restated Senior
Credit Agreement, dated November 13, 2001 (as the same has been amended or
otherwise modified), executed by the Company and the other parties thereto.
(j) Additional Documents. At the Delivery Date, counsel for
the Underwriters shall have been furnished with such documents and opinions as
they may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Notes as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Notes as herein
contemplated shall be reasonably satisfactory in form and substance to the
Underwriters and counsel for the Underwriters.
(k) Termination of Agreement. If any condition specified in
this Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Underwriters by notice to the Company at
any time at or prior to the Delivery Date, and such termination shall be without
liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. (1) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇
▇▇▇▇▇), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that (x) this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) and (y) this
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any losses,
claims, damages or liabilities or actions based upon any untrue statement or
alleged untrue statement of material fact or omission or alleged omission to
state therein a material fact purchased the Notes, if a copy of the Prospectus
in which such untrue statement or alleged untrue statement or omission or
alleged omission was corrected had not been sent or given to such person within
the time required by the 1933 Act and the 1933 Act
Regulations, unless such failure is the result of noncompliance by the Company
with Section 3(a) hereof.
(2) In addition to and without limitation of the
Company's obligation to indemnify Citigroup Global Markets Inc. as an
Underwriter, the Company also agrees to indemnify and hold harmless the
Independent Underwriter and each person, if any, who controls the Independent
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, from and against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, incurred as a result of the Independent
Underwriter's participation as a "qualified independent underwriter" within the
meaning of Rule 2720 of the Conduct Rules of the National Association of
Securities Dealers, Inc. in connection with the offering of the Notes provided,
however, that this indemnity agreement shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by the Independent
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company and each
person, if any, who controls the Company, within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
6(a)(1) of this Section, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 6(a)(1) above, counsel to the indemnified parties shall be selected
by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified pursuant to Section
6(b) above, counsel to the indemnified parties shall be selected by the Company.
An indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances;
provided, that, if indemnity is sought pursuant to Section 6(a)(2), then, in
addition to the fees and expenses of such counsel for the indemnified
parties, the indemnifying party shall be liable for the reasonable fees and
expenses of not more than one counsel (in addition to any local counsel)
separate from its own counsel and that of the other indemnified parties for the
Independent Underwriter in its capacity as a "qualified independent underwriter"
and all persons, if any, who control the Independent Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances
if, in the reasonable judgment of the Independent Underwriter, there may exist a
conflict of interest between the Independent Underwriter and the other
indemnified parties. Any such separate counsel for the Independent Underwriter
and such control persons of the Independent Underwriter shall be designated in
writing by the Independent Underwriter. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(1)(ii) effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for
in Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Notes pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Notes pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds
from the offering of the Notes pursuant to this Agreement (before deducting
expenses) received by the Company and the total underwriting discount received
by the Underwriters bear to the aggregate initial offering price of the Notes.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that Citigroup Global
Markets Inc. will not receive any additional benefits hereunder for serving as
the Independent Underwriter in connection with the offering and sale of the
Notes.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Notes underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the principal amount of Notes set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company or any of the
Subsidiaries submitted pursuant hereto shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of the Notes to the Underwriters.
SECTION 9. Termination of Agreement. (a) Termination; General.
The Underwriters may terminate this Agreement, by notice to the Company, at any
time at or prior to the Delivery Date (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus (exclusive of any supplement thereto),
except as otherwise stated therein, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and the Subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of ▇▇▇▇▇▇▇
▇▇▇▇▇, impracticable or inadvisable to market the Notes or to enforce contracts
for the sale of the Notes, or (iii) if trading in any securities of the Company
has been suspended or materially limited by the Commission, or if trading
generally on the American Stock Exchange or the New York Stock Exchange or in
the Nasdaq National Market has been suspended or materially limited or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States, or
(iv) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to
this Section 9, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full force
and effect.
SECTION 10. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail at the Delivery Date to purchase the
Notes which it or they are obligated to purchase under this Agreement (the
"Defaulted Notes"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have the right, but not the obligation,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other Underwriters, to purchase all, but not
less than all, of the Defaulted Notes in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Notes does not exceed 10%
of the aggregate principal amount of the Notes to be purchased
hereunder, each of the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Notes exceeds 10% of the
aggregate principal amount of the Notes to be purchased hereunder, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Underwriters or the Company shall have
the right to postpone the Delivery Date for a period not exceeding seven days in
order to effect any required changes in the Prospectus or in any other documents
or arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ; notices to
the Company shall be directed to it at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇ III, Esq.
SECTION 12. Parties. This Agreement shall inure to the benefit
of and be binding upon the Underwriters, the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters, the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Notes from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 15. Counterparts. This Agreement may be executed in
one or more counterparts, and if executed in more than one counterpart the
executed counterparts shall constitute a single instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
PROVINCE HEALTHCARE COMPANY
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
WACHOVIA SECURITIES, INC.
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
SUNTRUST CAPITAL MARKETS, INC.
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Authorized Signatory
SCHEDULE A
Principal
Amount of
Name of Underwriter Notes
------------------- -----
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated .... $ 88,125,000
Wachovia Securities, Inc. ............................. 63,125,000
Banc of America Securities LLC ........................ 28,125,000
Citigroup Global Markets Inc. ......................... 13,125,000
SunTrust Capital Markets, Inc. ........................ 3,750,000
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. ....................... 3,750,000
============
Total ................................................. 200,000,000
============
SCHEDULE B
List of Subsidiaries*
Brim Healthcare, Inc.
Brim Hospitals, Inc.
Care Health Company, Inc.
Mexia Principal Healthcare Limited Partnership
Mexia-Principal, Inc.
Outpatient Services, Inc.
Palestine-Principal G.P., Inc.
Palestine-Principal Healthcare Limited Partnership
PHC-Ashland, L.P.
PHC-Aviation, Inc.
PHC-Belle Glade, Inc.
PHC-Charlestown, LP
PHC-Cleveland, Inc.
PHC-Doctors' Hospital, Inc.
PHC-Elko, Inc.
PHC-▇▇▇▇▇▇, Inc.
PHC-Fort Mohave, Inc.
PHC Hospitals, LLC
PHC-Indiana, Inc.
PHC-Jasper, Inc.
PHC-▇▇▇▇, Inc.
PHC-Lake Havasu, Inc.
PHC-Lakewood, Inc.
PHC-Los Alamos, Inc.
PHC-Louisiana, Inc.
PHC-Martinsville, Inc.
PHC-Minden G.P., Inc.
PHC-Minden, L.P.
PHC-▇▇▇▇▇▇ City, L.P.
PHC-Morgan Lake, Inc.
PHC-Opelousas, L.P.
PHC-Palestine, Inc.
PHC-Tennessee, Inc.
PRHC-Alabama, LLC
PRHC-▇▇▇▇▇ ▇.▇., Inc.
PRHC-▇▇▇▇▇, ▇.▇.
Principal Hospital Company of Nevada, Inc.
Principal ▇▇▇▇, L.L.C.
Principal ▇▇▇▇, ▇.▇.
Principal-Needles, Inc.
▇▇▇▇▇▇▇ Regional Medical Center, LLC
-----------------------------
* Province Healthcare Company and each of its Subsidiaries have pledged
their respective equity interests in the Subsidiaries listed above as
security for the obligations under the Third Amended and Restated
Senior Credit Agreement, dated November 13, 2001 (as the same has been
amended or otherwise modified), between the Company and the other
parties thereto.
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(a)
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under the Purchase Agreement, the Indenture and the Notes.
(iii) The Company is duly qualified as a foreign corporation
in the States of Oregon and Tennessee, is active on the records of the
Corporation Division of the State of Oregon and is validly existing in
the State of Tennessee.
(iv) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus in the column entitled
"Actual" under the caption "Capitalization" (except for subsequent
issuances, if any, or pursuant to reservations, agreements or employee
benefit plans referred to in the Prospectus or pursuant to the exercise
of convertible securities or options referred to in the Prospectus);
the shares of issued and outstanding capital stock of the Company have
been duly authorized and validly issued and are fully paid and
nonassessable; and none of the outstanding shares of capital stock of
the Company was issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
(v) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due authorization, execution
and delivery thereof by the Trustee) constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws relating to or affecting enforcement of creditors' rights
generally, or by general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(vi) The Notes are in the form contemplated by the Indenture,
have been duly authorized by the Company and, when executed and
authenticated in accordance with the provisions of the Indenture and
issued and delivered against payment of the purchase price therefor,
will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization (including, without limitation, all laws relating to
fraudulent transfers), moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally, or by general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law), and will be entitled to the
benefits of the Indenture.
(vii) The statements in the Prospectus, including the
information under the caption "Description of Debt Securities" in the
base prospectus and the information under the caption "Description of
Notes in the Prospectus Supplement," insofar as they summarize certain
provisions of the Notes and the Indenture are accurate in all material
respects.
(viii) Each of the Corporate Subsidiaries has been duly
organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with corporate
power and authority to own or lease its properties and conduct its
business as described in the Prospectus; each of the Corporate
Subsidiaries is duly qualified to transact business as a foreign
corporation and in good standing in the state(s) set forth opposite the
name of such Corporate Subsidiary on Schedule A hereto; the outstanding
shares of capital stock of each of the Corporate Subsidiaries have been
duly authorized and validly issued and are fully paid and nonassessable
and are owned by the Company or a Corporate Subsidiary; and, to the
best of our knowledge and except as set forth on Schedule A hereto, the
outstanding shares of capital stock of each of the Subsidiaries are
owned free and clear of all security interests, mortgages, pledges,
liens, encumbrances, equities and claims, and no options, warrants or
other rights to purchase, agreements or other obligations to issue or
other rights to convert any obligations into any shares of capital
stock or of ownership interests in the Corporate Subsidiaries are
outstanding.
(ix) Each of the Partnerships has been duly organized and is
an existing partnership in good standing under the laws of the
jurisdiction of its organization, with the power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus, and is duly qualified to conduct its
business; each of the Partnerships is in good standing as a foreign
partnership in the state(s) set forth opposite the name of such
Partnership on Schedule B hereto, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; and, to the best of our knowledge and except
as set forth on Schedule B hereto, the partnership interests in the
Partnerships held directly or indirectly by the Company are free and
clear of all security interests, mortgages, pledges, liens,
encumbrances, equities and claims, and no options, warrants or other
rights to purchase, agreements or other obligations to issue or other
rights to convert any obligations into any ownership interests in the
Partnerships are outstanding.
(x) Each of the LLCs has been duly organized and is an
existing limited liability company in good standing under the laws of
the jurisdiction of its organization, with the power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus, and is duly qualified to conduct its
business; each of the LLCs is in good standing as a foreign limited
liability company in the state(s) set forth opposite the name of such
LLC on Schedule C hereto, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material
Adverse Effect; and, to the best of our knowledge and except as set
forth on Schedule C hereto, the membership interests in the LLCs held
directly or indirectly by the Company are free and clear of all
security interests, mortgages, pledges, liens, encumbrances, equities
and claims, and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligations into any ownership interests in the LLCs are outstanding.
(xi) The Purchase Agreement has been duly authorized, executed
and delivered by the Company.
(xii) The documents incorporated by reference in the
Registration Statement (other than the financial statements and
supporting schedules included therein or omitted therefrom, as to which
we need express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission
thereunder.
(xiii) To the best of our knowledge and except as disclosed in
the Prospectus, there is not pending or threatened any action, suit,
proceeding, inquiry or investigation to which the Company or any
Subsidiary is a party, or to which the property of the Company or any
Subsidiary is subject, before or brought by any court or governmental
agency or body, domestic or foreign, which might reasonably be expected
to result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties or assets of
the Company or any Subsidiary or the consummation of the transactions
contemplated in the Purchase Agreement, the Indenture or the Notes, or
the performance by the Company of its obligations thereunder.
(xiv) The information contained in or most recently
incorporated by reference in the Prospectus Supplement under "Risk
Factors--If government programs reduce the payments we receive as
reimbursement for our services, our revenues may decline," "Risk
Factors--If we fail to comply with regulations regarding licenses,
ownership and operation, we could impair our ability to operate or
expand our operations in any state," "Risk Factors--We are subject to
extensive governmental regulation regarding conduct of our operations
and our relationships with physicians. If we fail to comply with these
regulations, we could suffer penalties or be required to make
significant changes to our operations," "Risk Factors--There are
heightened coordinated civil and criminal enforcement efforts by
federal and state government agencies relating to the health care
industry. We may become the subject of an investigation in the future,"
"Risk Factors--We have a concentration of revenue in Texas and Arizona,
which makes us particularly sensitive to regulatory and economic
changes in those states," "Risk Factors--Our California hospitals must
comply with California seismic standards which may require us to make
significant capital expenditures," "Business--Properties," "Government
Reimbursement," "Health Care Regulation and Licensing," "Certain United
States Federal Income Tax Considerations" and "Description of the
Notes," and the information contained in the base prospectus under the
caption "Description of Common Stock" to the extent that it constitutes
matters of law, summaries of legal matters, the Company's certificate
of incorporation and by-laws or legal proceedings, or legal
conclusions, has been reviewed by us and is correct in all material
respects.
(xv) To the best of our knowledge, there are no statutes or
regulations that are required to be described in the Prospectus that
are not described as required.
(xvi) All descriptions in the Prospectus of contracts and
other documents to which the Company or its Subsidiaries are a party
are accurate in all material respects.
(xvii) To the best of our knowledge, neither the Company nor
any Subsidiary is in violation of its certificate of incorporation or
by-laws or other organizational documents and no default by the Company
or any Subsidiary exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument that is described or referred to in the
Prospectus or incorporated by reference in the Prospectus.
(xviii) The Company and each of its Subsidiaries have all
necessary Permits (except where the failure to have such Permits,
individually or in the aggregate, would not have a Material Adverse
Effect on the business, operations or financial condition of the
Company and the Subsidiaries taken as a whole) to own their respective
properties and to conduct their respective businesses as now being
conducted, and as described in the Prospectus, including, without
limitation, such Permits as are required (a) under Health Care Laws and
(b) with respect to those facilities owned or operated by the Company
or any Subsidiary that participate in Medicare and/or Medicaid, to
receive reimbursement thereunder.
For purposes of this opinion, the term "Health Care Laws"
shall mean those statutes, rules and regulations, judgments, decrees or
orders which are generally applicable to hospitals and health care
providers as a group described in the Prospectus under the headings
"Risk Factors--If government programs reduce the payments we receive as
reimbursement for our services, our revenues may decline," "Risk
Factors--If we fail to comply with regulations regarding licenses,
ownership and operation, we could impair our ability to operate or
expand our operations in any state," "Risk Factors--We are subject to
extensive governmental regulation regarding conduct of our operations
and our relationships with physicians. If we fail to comply with these
regulations, we could suffer penalties or be required to make
significant changes to our operations," "Risk Factors--There are
heightened coordinated civil and criminal enforcement efforts by
federal and state government agencies relating to the health care
industry. We may become the subject of an investigation in the future,"
"Risk Factors--We have a concentration of revenue in Texas and Arizona,
which makes us particularly sensitive to regulatory and economic
changes in those states," "Risk Factors--Our California hospitals must
comply with California seismic standards which may require us to make
significant capital expenditures," "Government Reimbursement" and
"Healthcare Regulation and Licensing," including, without limitation,
(i) health care licensure, permit, certificate of need and medical
waste requirements, (ii) Titles XVIII, XIX and XXI of the Social
Security Act, (iii) the "anti-kickback" statute (as defined in the
Prospectus) as amended by the Health Insurance Portability and
Accountability Act of 1996 and the regulations promulgated thereunder,
(iv) the ▇▇▇▇▇ Laws (as defined in the Prospectus) and the regulations
promulgated thereunder, (v) the False Claims Act, (vi) the Health
Insurance Portability and Accountability Act of 1996 and (vii)
published state statutes, rules and regulations available to us
concerning matters similar to those covered by clauses (ii) through
(vi) above.
(xx) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other than such
as may be required by the National Association of Securities Dealers,
Inc. or under the applicable securities or blue sky laws of the various
states in which the Notes will be sold, as to which we need express no
opinion), is necessary or required in connection with the due
authorization, execution and delivery of the Purchase Agreement or the
Indenture or for the offering, issuance, sale or delivery of the Notes.
(xxi) The execution, delivery and performance of the Purchase
Agreement and the Indenture and the execution, authentication and
delivery of the Notes and the consummation of the transactions
contemplated in the Purchase Agreement and the Indenture and in the
Prospectus (including the issuance and sale of the Notes and the use of
the proceeds from the sale of the Notes as described in the Prospectus
under the caption "Use Of Proceeds,") and compliance by the Company
with its obligations under the Purchase Agreement and the Indenture do
not and will not, whether with or without the giving of notice or lapse
of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section 1(a)(xv) of the Purchase
Agreement) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
Subsidiary pursuant to, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to us, to which the Company or any Subsidiary is a
party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any Subsidiary is subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect), nor will
such action result in any violation of the provisions of the
certificate of incorporation or by-laws or other organizational
documents of the Company or any Subsidiary, or any applicable law,
statute, rule, regulation, judgment, order, writ or decree, known to
us, of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any Subsidiary or any
of their respective properties, assets or operations.
(xxii) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the 1940 Act.
No facts have come to our attention that cause us to believe that the
Registration Statement or any amendment thereto (except for financial statements
and schedules and other financial data included or incorporated by reference
therein or omitted therefrom, as to which we need make no statement), at the
time such Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus or any amendment or supplement thereto
(except for financial statements and schedules and other financial data included
or incorporated by reference therein or omitted
therefrom, as to which we need make no statement), at the time the Prospectus
was issued, at the time any such amended or supplemented prospectus was issued
or at the Delivery Date, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
In rendering such opinion, such counsel may rely as to matters
of fact (but not as to legal conclusions), to the extent they deem proper, on
the representations of the Company in the Purchase Agreement and certificates of
responsible officers of the Company and public officials. Such opinion shall not
state that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
