EXHIBIT 1.1
EXECUTION COPY
UNIVERSAL HOSPITAL SERVICES, INC.
10.125% SENIOR NOTES DUE 2011
---------------
PURCHASE AGREEMENT
October 8, 2003
Xxxxxxx, Xxxxx & Co.,
As representative of the several Purchasers
named in Schedule I hereto,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Universal Hospital Services, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Purchasers named in Schedule I hereto (the "Purchasers"), in the
respective amounts set forth in Schedule I hereto, an aggregate of $260,000,000
principal amount of the 10.125% Senior Notes due 2011 of the Company specified
above (the "Securities").
1. The Company represents and warrants to, and agrees with, each of the
Purchasers that:
(a) A preliminary offering circular, dated September 26, 2003 (the
"Preliminary Offering Circular") and an offering circular, dated October
8, 2003 (the "Offering Circular" have been prepared in connection with the
offering of the Securities. Any reference to the Preliminary Offering
Circular or the Offering Circular shall be deemed to refer to and include
(i) any documents filed by the Company with the United States Securities
and Exchange Commission (the "Commission") pursuant to Section 13(a),
13(c) or 15(d) of the United States Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the date of the Preliminary Offering
Circular or the Offering Circular, as the case may be, and prior to the
completion of the distribution of the Securities and (ii) any Additional
Issuer Information (as defined in Section 5(f)) furnished by the Company
prior to the completion of the distribution of the Securities. As of the
date thereof, the Preliminary Offering Circular did not, and the Offering
Circular and any amendments or supplements thereto did not as of the date
hereof and will not, as of the Time of Delivery, contain an untrue
statement of a material fact or 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 this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by a Purchaser through Xxxxxxx, Sachs & Co.
expressly for use therein;
(b) The Company has not sustained since the date of the latest
audited financial statements included in the Offering Circular any
material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Offering Circular; and, since the
respective dates as of which information is given in the Offering
Circular, there has not been any change in the capital stock, total debt
or long-term debt of the Company or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the business, management, financial position, shareholders'
equity or results of operations of the Company, otherwise than as set
forth or contemplated in the Offering Circular;
(c) The Company has good and marketable title in fee simple to all
real property and good and marketable title to all personal property owned
by it, in each case free and clear of all liens, encumbrances and defects
except such as are described in the Offering Circular or those that,
individually or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect (as defined below) and do not interfere with the
use made and proposed to be made of such property by the Company; and any
real property and buildings held under lease by the Company are held by it
under valid, subsisting and enforceable leases with such exceptions as
could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect and do not interfere with the use made and
proposed to be made of such property and buildings by the Company;
(d) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Offering Circular, and has been
duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in which
it owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or disability
by reason of the failure to be so qualified in any such jurisdiction;
(e) The Company has an authorized capitalization as set forth in the
Offering Circular, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
(f) The Securities have been duly authorized by the Company and,
when executed, issued and delivered by the Company and authenticated by
Xxxxx Fargo Bank, National Association, as Trustee (the "Trustee"),
pursuant to this Agreement and the Indenture (as defined below), will have
been duly executed, issued and delivered by the Company and will
constitute valid and legally binding obligations of the Company entitled
to the benefits provided by the indenture to be dated as of October 17,
2003 (the "Indenture") between the Company and the Trustee, under which
they are to be issued, enforceable against the Company in accordance with
their terms, subject as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Securities will be in substantially the form contemplated by the
Indenture;
(g) The Indenture has been duly authorized by the Company and, when
executed and delivered by the Company, will have been duly executed and
delivered by the Company and (assuming due authorization, execution,
delivery and performance by the Trustee) will constitute a valid and
legally binding obligation of the Company enforceable against the Company
in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Indenture will be in substantially the form previously
delivered to you;
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(h) The Company does not have any Subsidiaries (as defined in the
"Description of Notes" section of the Offering Circular);
(i) The exchange and registration rights agreement to be dated
October 17, 2003, among the Company and the Purchasers (the "Registration
Rights Agreement") has been duly authorized by the Company and, when
executed and delivered by the Company, will have been duly executed and
delivered by the Company and will constitute a valid and legally binding
obligation of the Company, enforceable against the Company in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights or limiting the availability of, and public
policy against, indemnification and contribution and to general equity
principles;
(j) The exchange securities, with terms substantially identical to
those of the Securities, to be issued in exchange for the Securities in
connection with the exchange offer contemplated by the Registrations
Rights Agreement (the "Exchange Securities") have been duly authorized for
issuance by the Company and, when executed, issued and delivered by the
Company and authenticated by the Trustee pursuant to this Agreement and
the Indenture, will have been duly executed, issued and delivered by the
Company and will constitute valid and legally binding obligations of the
Company, entitled to the benefits provided by the Indenture and
enforceable in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(k) The Credit Agreement, dated as of October 17, 2003, among the
Company, General Electric Capital Corporation, GE Capital Markets Group,
Inc., Xxxxxxx Sachs Credit Partners L.P. and the lenders party thereto,
providing for up to $100.0 million of revolving credit borrowings (the
"Credit Agreement"), has been duly authorized by the Company and, when
executed and delivered by the Company, will have been duly executed and
delivered by the Company and will constitute a valid and legally binding
obligation of the Company, enforceable against the Company in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Credit Agreement will be in substantially the form previously delivered to
you;
(l) The Stock Purchase Agreement, dated as of September 26, 2003,
among the Company, X.X. Childs Equity Partners III, JWC Co-invest III LLC,
L.P., Halifax Capital Partners, L.P. and certain members of the Company's
management (the "Stock Purchase Agreement") has been duly authorized,
executed and delivered by the Company and constitutes a valid and legally
binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Stock Purchase Agreement will be in substantially the
form previously delivered to you;
(m) The cash tender offer (the "Tender Offer") for the Company's
outstanding senior notes and the consent solicitation in connection with
the Tender Offer (the "Consent Solicitation") have been commenced as
described in the Offering Circular;
(n) The Dealer Manager Agreement, dated as of September 24, 2003,
between the Company and Xxxxxxx, Sachs & Co. (the "Dealer Manager
Agreement") has been duly authorized, executed and delivered by the
Company and constitutes a valid and legally binding
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obligation of the Company, enforceable against the Company in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights or limiting the availability of, and public
policy against, indemnification and contribution and to general equity
principles;
(o) The letter agreement, dated as of September 26, 2003, between
the Company and ING Investment Management LLC, as agent of Security Life
of Denver Insurance Company, providing for the repurchase of the
outstanding series B preferred stock of the Company (the "Preferred Stock
Repurchase Agreement") has been duly authorized by the Company and, when
executed and delivered by the Company, will have been duly executed and
delivered by the Company and will constitute a valid and legally binding
obligation of the Company, enforceable against the Company in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Preferred Stock Repurchase Agreement will be in substantially the form
previously delivered to you;
(p) The Company's offer to repurchase certain of its outstanding
equity securities (the "Equity Repurchase") has been commenced as
described in the Offering Circular;
(q) This Purchase Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
obligation of the Company, enforceable against the Company in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights or limiting the availability of, and public
policy against, indemnification and contribution and to general equity
principles;
(r) None of the transactions contemplated by this Agreement and to
be performed by the Company (including, without limitation, the use of the
proceeds from the sale of the Securities) will violate or result in a
violation of Section 7 of the Exchange Act, or any regulation promulgated
thereunder, including, without limitation, Regulations T, U, and X of the
Board of Governors of the Federal Reserve System, in each case as the same
may be in effect or as the same may hereafter be in effect at the Time of
Delivery;
(s) Prior to the date hereof, neither the Company nor any of its
affiliates has taken any action which is designed to or which has
constituted or which might have been 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 Securities;
(t) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, the
Registration Rights Agreement, this Agreement, the Credit Agreement, the
Stock Purchase Agreement, the Preferred Stock Repurchase Agreement and the
Dealer Manager Agreement and the consummation of the Tender Offer, the
Consent Solicitation, the Recapitalization (as described in the "Offering
Circular Summary - The Recapitalization" section of the Offering
Circular), the Equity Repurchase and the transactions herein and therein
contemplated will not (i) conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is
bound or to which any of the property or assets of the Company is subject,
(ii) result in any violation of the provisions of the Certificate of
Incorporation or Bylaws of the Company, (iii) (assuming compliance with
all applicable state securities or "Blue Sky" laws and assuming all
representations made by the
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Purchasers in Section 3 hereof are true and correct) result in any
violation of the provisions of any law or statute or any order, rule,
regulation, judgment or decree of any court or governmental agency or body
having jurisdiction over the Company or any of its properties or assets,
except in the case of clauses (i) and (iii) for such conflicts, breaches,
violations, defaults or liens that, individually or in the aggregate,
would not reasonably be expected to have a material adverse effect on the
current or future business management, financial position, shareholders'
equity or results of operations of the Company ("Material Adverse
Effect"); and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities or the consummation by
the Company of the Tender Offer and the Consent Solicitation, the
Recapitalization, the Equity Repurchase and the transactions contemplated
by this Agreement, the Securities, the Indenture, the Registration Rights
Agreement, the Credit Agreement, the Stock Purchase Agreement, the
Preferred Stock Repurchase Agreement and the Dealer Manager Agreement,
except for (i) the filing of a registration statement by the Company with
the Commission pursuant to the United States Securities Act of 1933, as
amended (the "Act") pursuant to the Registration Rights Agreement, (ii)
the filing of a notice on Form D by the Company with the Commission
pursuant to Section 5(h) hereof, (iii) the filing of a notice on Form D by
the Company with the Commission in connection with the Stock Purchase
Agreement and (iv) such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky
laws or the laws of any jurisdiction outside of the United States in
connection with the purchase and distribution of the Securities by the
Purchasers;
(u) The Company is not (i) in violation of its Certificate of
Incorporation or Bylaws or (ii) in default in the performance or
observance of any obligation, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of
its properties may be bound except such defaults that, individually or in
the aggregate, could not reasonably be expected to result in a Material
Adverse Effect;
(v) The statements set forth in the Offering Circular under the
caption "Description of Notes," insofar as they purport to constitute a
summary of the terms of the Securities and the Indenture, and under the
captions "Material Federal Income Tax Consequences" and "Underwriting,"
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate and complete;
(w) Other than as set forth in the Offering Circular, there are no
legal or governmental proceedings pending to which the Company is a party
or of which any property or assets of the Company is the subject which, if
determined adversely to the Company, would, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and,
to the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
(x) When the Securities are issued and delivered pursuant to this
Agreement, the Securities will not be of the same class (within the
meaning of Rule 144A under the Act) as securities which are listed on a
national securities exchange registered under Section 6 of the Exchange
Act or quoted in a U.S. automated inter-dealer quotation system;
(y) The Company is not, and immediately after giving effect to the
offering and sale of the Securities will not be, an "investment company,"
or an entity "controlled by an investment
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company," as such terms are defined in the United States Investment
Company Act of 1940, as amended (the "Investment Company Act") and the
rules and regulations thereunder;
(z) The Company maintains and will maintain disclosure controls and
procedures (as defined in Rule 13a-14 of the Exchange Act) designed to
ensure that information required to be disclosed by the Company in the
reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported in accordance with the Exchange Act and
the rules and regulations thereunder; and the Company has carried out and
will carry out evaluations, under the supervision and with the
participation of the Company's management, of the effectiveness of the
design and operation of the Company's disclosure controls and procedures
in accordance with Rule 13a-15 of the Exchange Act;
(aa) Neither the Company nor any person acting on its behalf (other
than the Purchasers as to whom the Company makes no representation) has
offered or sold the Securities by means of any general solicitation or
general advertising within the meaning of Rule 502(c) under the Act or,
with respect to Securities sold outside the United States to non-U.S.
persons (as defined in Rule 902 under the Act), by means of any directed
selling efforts within the meaning of Rule 902 under the Act and the
Company, any affiliate of the Company and any person acting on its or
their behalf has complied with and will implement the "offering
restriction" within the meaning of such Rule 902;
(bb) Within the preceding six months, neither the Company nor any
other person acting on behalf of the Company has offered or sold to any
person any Securities or any securities of the same or a similar class as
the Securities other than Securities offered or sold to the Purchasers
hereunder. The Company will take reasonable precautions designed to insure
that any offer or sale, direct or indirect, in the United States or to any
U.S. person (as defined in Rule 902 under the Act) of any Securities or
any substantially similar security issued by the Company, within six
months subsequent to the date on which the distribution of the Securities
has been completed (as notified to the Company by Xxxxxxx, Xxxxx & Co.),
is made under restrictions and other circumstances reasonably designed not
to affect the status of the offer and sale of the Securities in the United
States and to U.S. persons contemplated by this Agreement as transactions
exempt from the registration provisions of the Act;
(cc) PricewaterhouseCoopers LLP, which has certified certain
financial statements of the Company as set forth in its report included in
the Offering Circular, is an independent public accounting firm as
required by the Act and the rules and regulations of the Commission
thereunder;
(dd) Except as described in the Offering Circular and except such
matters as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, (i) the Company is not 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 order, consent, decree or judgment 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 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"), (ii) the Company has all permits, authorizations
and approvals required under any applicable
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Environmental Laws and is in compliance with their requirements, (iii)
there are no pending or, to the knowledge of the Company, threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company and (iv), to the knowledge of the Company, there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company relating to Hazardous Materials or Environmental Laws;
(ee) The Company owns or possesses adequate rights to use all
material patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service xxxx registrations, copyrights and
licenses necessary for the conduct of its business as described in the
Offering Circular, except where the failure to have such rights would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect and the Company has no knowledge of any reason to
believe that the conduct of its business will conflict with, and, except
as disclosed in the Preliminary Offering Circular and the Offering
Circular, has not received any notice of any claim of conflict with, any
such rights of others which, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect;
(ff) The financial statements, including the notes thereto, included
in the Offering Circular comply as to form in all material respects with
the applicable accounting requirements of the Act, the Exchange Act, and
the rules and regulations of the Commission thereunder, and present fairly
in all material respects the financial position of the Company as of the
dates indicated and results of operations for the periods specified,
subject, in the case of interim unaudited financial statements, to
year-end adjustments; said financial statements have been prepared in
conformity with generally accepted accounting principles as applied in the
United States, applied on a consistent basis throughout the periods
involved except as noted therein; and the other statistical and market and
industry-related data included in the Offering Circular present fairly the
information included therein, are based upon or derived from sources that
the Company believes to be reliable and accurate;
(gg) The Company has not, and, as a result of consummation of the
transactions herein contemplated and the consummation of the
Recapitalization, immediately following the Recapitalization will not
have, incurred debts beyond its ability to pay as they mature;
(hh) The present fair saleable value of the assets of the Company
exceeds the amount required to pay the probable liability on its existing
debts (whether matured or unmatured, liquidated or unliquidated, absolute,
fixed or contingent), as they become absolute and matured, and, as a
result of consummation of the transactions herein contemplated,
immediately after giving effect to the Recapitalization, will exceed such
amount;
(ii) The Company does not have, and, as a result of consummation of
the transactions herein contemplated and the consummation of the
Recapitalization, immediately following the Recapitalization will not
have, unreasonably small capital for it to carry on its business as
proposed to be conducted;
(jj) The Company is not incurring obligations or making transfers
under any evidence of indebtedness with the intent to hinder, delay or
defraud any entity to which it is or will become indebted;
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(kk) No labor disturbance by the employees of the Company exists or,
to the best of the Company's knowledge, is imminent; except as disclosed
in the Offering Circular, the Company is not a party to a collective
bargaining agreement; and there are no unfair labor practice complaints
pending against the Company or, to the best of the Company's knowledge,
threatened against it which, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect;
(ll) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section
4975 of the Internal Revenue Code of 1986, as amended from time to time
(the "Code")), or "accumulated funding deficiency" (as defined in Section
302 of ERISA) or any of the events set forth in Section 4043(c) of ERISA
(other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived, the event described in
Section 4043(c)(5) that was reported by the Company to the PBGC on
February 3, 2003, or any event described in Section 4043(c)(9) or
4043(c)(11) that may result from the offering of the Securities or the
Recapitalization) has occurred with respect to any "employee benefit
plan," (as defined in Section 3(3) of ERISA), or any "employee benefit
plan" of any entity which is considered one employer with the Company
under Section 4001 of ERISA or Section 414 of the Code (an "ERISA
Affiliate"); each such "employee benefit plan" is in compliance in all
material respects with its terms and applicable law, including ERISA and
the Code; and the Company or any ERISA Affiliate has not participated in
any multiemployer plan (as defined in Section 3(37) of ERISA); the Company
or any ERISA Affiliate has not incurred and does not expect to incur
liability under Title IV of ERISA with respect to the termination of, or
withdrawal from any "pension plan" (as defined in Section 3(2) of ERISA)
and each "pension plan" for which the Company would have any liability
that is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which could cause the loss of such
qualification; and
(mm) The Securities, the Indenture, the Registration Rights
Agreement, the Credit Agreement, the Stock Purchase Agreement, the Equity
Repurchase, the Preferred Stock Repurchase Agreement, the Tender Offer and
the Consent Solicitation and the Dealer Manager Agreement will conform in
all material respects to the descriptions thereof in the Offering
Circular.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Purchasers, and each of the Purchasers
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of 97.00% of the principal amount thereof, plus accrued interest, if any,
from October 17, 2003 to the Time of Delivery hereunder, the principal amount of
Securities set forth opposite the name of such Purchaser in Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the
several Purchasers propose to offer the Securities for sale upon the terms and
conditions set forth in this Agreement and the Offering Circular and each
Purchaser hereby represents and warrants to, and agrees with the Company that:
(a) It has solicited and will solicit offers for the Securities only from
and will offer and sell the Securities only to: (i) persons who it reasonably
believes are "qualified institutional buyers" ("QIBs") within the meaning of
Rule 144A under the Act in transactions meeting the requirements of Rule 144A
and (ii) through its selling agents, outside the United States, to non-U.S.
persons in reliance on Regulation S under the Act;
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(b) It is an Institutional Accredited Investor within the meaning of Rule
501 under the Act;
(c) It has not solicited and will not solicit offers for, or offer or
sell, the Securities by any form of general solicitation or general advertising,
including but not limited to the methods described in Rule 502(c) under the Act
or in any manner involving a public offering within the meaning of Section 4(2)
of the Act;
(d) The Securities have not been and will not be registered under the Act
and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with Regulation S under
the Act or pursuant to an exemption from the registration requirements of the
Act. Each Purchaser represents that it has offered and sold the Securities, and
will offer and sell the Securities (i) as part of their distribution at any time
and (ii) otherwise until 40 days after the later of the commencement of the
offering and the Time of Delivery, only in accordance with Rule 903 of
Regulation S or Rule 144A under the Act. Accordingly, each Purchaser agrees that
neither it, its affiliates nor any persons acting on its or their behalf has
engaged or will engage in any directed selling efforts with respect to the
Securities, and it and they have complied and will comply with the offering
restrictions requirement of Regulation S. Each Purchaser agrees that, at or
prior to confirmation of sale of Securities (other than a sale pursuant to Rule
144A), it will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Securities from it
during the restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered and
sold within the United States or to, or for the account or benefit of,
U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of the
offering and the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities Act. Terms
used above have the meaning given to them by Regulation S."
Terms used in this paragraph have the meanings given to them by Regulation S.
Notwithstanding the foregoing, Securities in registered form may be
offered, sold and delivered by the Purchasers in the United States and to U.S.
persons pursuant to clause (a)(i) of this Section 3 without delivery of the
written statement required by this clause (d); and
(e) Each Purchaser agrees that it will not offer, sell or deliver any of
the Securities in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable laws thereof,
and that it will take at its own expense whatever action is required to permit
its purchase and resale of the Securities in such jurisdictions. Each Purchaser
understands that no action has been taken to permit a public offering in any
jurisdiction outside the United States where action would be required for such
purpose.
4. (a) The Securities to be purchased by each Purchaser hereunder will be
represented by one or more definitive global Securities in book-entry form that
will be deposited by or on behalf of the Company with The Depository Trust
Company ("DTC") or its designated custodian. The Company will deliver the
Securities to Xxxxxxx, Xxxxx & Co., for the account of each Purchaser, against
payment by or on behalf of such Purchaser of the purchase price therefor by wire
transfer, payable to the order of the Company in Federal (same day) funds, by
causing DTC to credit the Securities to the account of Xxxxxxx, Sachs & Co. at
DTC. The Company will cause the certificates representing the Securities to be
made available to Xxxxxxx, Xxxxx & Co. for checking at least twenty-four hours
prior to the Time of Delivery (as defined below) at the office of DTC or its
designated custodian (the
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"Designated Office"). The time and date of such delivery and payment shall be
9:30 a.m., New York City time, on October 17, 2003 or such other time and date
as Xxxxxxx, Sachs & Co. and the Company may agree upon in writing. Such time and
date are herein called the "Time of Delivery."
(b) The documents to be delivered at the Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross-receipt
for the Securities and any additional documents requested by the Purchasers
pursuant to Section 7(h) hereof, will be delivered at such time and date at the
offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Closing Location"), and the Securities will be delivered at the Designated
Office, all at the Time of Delivery. A meeting will be held at the Closing
Location at 3:00 p.m., New York City time, on the New York Business Day next
preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Purchasers:
(a) To prepare the Offering Circular in a form approved by you; to make no
amendment or any supplement to the Offering Circular without your prior consent
(which consent shall not be unreasonably withheld) promptly after reasonable
notice thereof; and to furnish you with such copies thereof as you may
reasonably request;
(b) Promptly, from time to time, to take such action as you may reasonably
request to qualify the Securities for offering and sale under the securities
laws of such jurisdictions as you may reasonably request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Securities, provided that in connection therewith, the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction or take any other action that would
subject it to general service of process or to taxation in excess of a nominal
amount in respect of doing business in any jurisdiction in which it is not
otherwise subject;
(c) To furnish the Purchasers with three copies of the Offering Circular
and each amendment or supplement thereto signed by an authorized officer of the
Company with the independent accountants' report(s) in the Offering Circular,
and any amendment or supplement containing amendments to the financial
statements covered by such report(s), signed by the accountants, and additional
written and electronic copies thereof in such quantities as you may from time to
time reasonably request, and if, at any time prior to the completion of the
resale by the Purchasers of the Securities, any event shall have occurred as a
result of which the Offering Circular as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Offering Circular is
delivered, not misleading, or, if for any other reason it shall be necessary or
desirable during such same period to amend or supplement the Offering Circular,
to notify you and upon your request to prepare and furnish without charge to
each Purchaser and to any dealer in securities as many written and electronic
copies as you may from time to time reasonably request of an amended Offering
Circular or a supplement to the Offering Circular which will correct such
statement or omission or effect such compliance;
(d) For a period of 180 days from the date of the Offering Circular, not
to offer, sell, contract to sell, grant any option to purchase, issue any
instrument convertible into or exchangeable for, or otherwise transfer or
dispose of (or enter into any transaction or device which is designated to, or
10
could be expected to, result in the disposition in the future of), any
securities of the Company that are substantially similar to the Securities
except (i) the Exchange Securities in exchange for the Securities in connection
with the exchange offer contemplated by the Registrations Rights Agreement or
(ii) with the prior written consent of Xxxxxxx, Xxxxx & Co.;
(e) Not to be or become, at any time prior to the expiration of three
years after the Time of Delivery, an open-end investment company, unit
investment trust, closed-end investment company or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act;
(f) At any time when the Company is not subject to Section 13 or 15(d) of
the Exchange Act, for the benefit of holders from time to time of Securities, to
furnish at its expense, upon request, to holders of Securities and prospective
purchasers of securities information (the "Additional Issuer Information")
satisfying the requirements of subsection (d)(4)(i) of Rule 144A under the Act;
(g) If requested by you, to use all commercially reasonable efforts to
cause the Securities to be eligible for the PORTAL trading system of the
National Association of Securities Dealers, Inc.;
(h) To file with the Commission, not later than 15 days after the Time of
Delivery, five copies of a notice on Form D under the Act (one of which will be
manually signed by a person duly authorized by the Company); to otherwise comply
with the requirements of Rule 503 under the Act; and to furnish promptly to you
evidence of each such required timely filing (including a copy thereof);
(i) To furnish to the holders of the Securities as soon as practicable
after the end of each fiscal year an annual report (including a balance sheet
and statements of income, shareholders' equity and cash flows of the Company
certified by independent public accountants) and, as soon as practicable after
the end of each of the first three quarters of each fiscal year (beginning with
the fiscal quarter ending after the date of the Offering Circular), to make
available to its shareholders consolidated summary financial information of the
Company for such quarter in reasonable detail;
(j) During a period of five years from the date of the Offering Circular,
so long as any of the Securities then remain outstanding, to furnish to you
copies of all reports or other communications (financial or other) furnished to
shareholders of the Company, and to deliver to you (i) as soon as they are
available, copies of any reports and financial statements furnished to or filed
with the Commission or any securities exchange on which the Securities or any
class of securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the Company as
you may from time to time reasonably request (such financial statements to be on
a consolidated basis to the extent the accounts of the Company are consolidated
in reports furnished to its shareholders generally or to the Commission);
(k) During the period of two years after the Time of Delivery, the Company
will not, and will not permit any of its "affiliates" (as defined in Rule 144
under the Act) to, resell any of the Securities which constitute "restricted
securities" under Rule 144 that have been reacquired by any of them;
(l) To do and perform all things required to be done and performed under
this Agreement, the Securities, the Indenture, the Registration Rights
Agreement, the Credit Agreement, the Stock Purchase Agreement, the Preferred
Stock Repurchase Agreement and the Dealer Manager Agreement prior to and after
the Time of Delivery;
(m) To comply with all agreements set forth in the representation letters
of the Company to DTC relating to the approval of the Securities by DTC for
"book entry" transfer; and
11
(n) To use the net proceeds received by it from the sale of the Securities
pursuant to this Agreement in the manner specified in the Offering Circular
under the caption "Use of Proceeds."
6. The Company covenants and agrees with the several Purchasers that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
issue of the Securities and all other expenses in connection with the
preparation, printing and filing of the Preliminary Offering Circular and the
Offering Circular and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Purchasers and dealers; (ii) the cost of
printing or producing any Agreement among Purchasers, this Agreement, the
Indenture, the Registration Rights Agreement, the Blue Sky and legal investment
surveys, closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Securities; (iii) all expenses in connection with the qualification of the
Securities and the Exchange Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Purchasers in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Securities
and the Exchange Securities; (v) the cost of preparing the Securities; (vi) the
fees and expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Securities; (vii) any cost incurred in connection with the designation of
the Securities for trading in PORTAL and (viii) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the Purchasers
will pay all of their own costs and expenses, including the fees of their
counsel, transfer taxes on resale of any of the Securities by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Purchasers hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Company herein are, at and as of the Time of Delivery, true
and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) Xxxxxx & Xxxxxxx LLP, counsel for the Purchasers, shall have furnished
to you such opinion or opinions, dated the Time of Delivery, as you may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(b) Xxxxxx & Whitney LLP, counsel for the Company, shall have furnished to
you their written opinion, dated the Time of Delivery, in form and substance
satisfactory to you, in the form of Annex I hereto;
(c) Xxxx Xxxxxxx LLP shall have furnished to you their written opinion,
dated the Time of Delivery, substantially in the form of Annex II hereto;
(d) On the date of the Offering Circular prior to the execution of this
Agreement and also at the Time of Delivery, PricewaterhouseCoopers LLC shall
have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex III hereto;
(e) (i) The Company shall not have sustained since the date of the latest
audited financial statements included in the Offering Circular any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the
12
Offering Circular, and (ii) since the respective dates as of which information
is given in the Offering Circular there shall not have been any change in the
capital stock, total debt or long-term debt of the Company or any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
the Company, otherwise than as set forth or contemplated in the Offering
Circular, the effect of which, in any such case described in clause (i) or (ii),
is in the judgment of the Representative so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in this Agreement
and in the Offering Circular;
(f) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities;
(g) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a general moratorium on
commercial banking activities declared by either Federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iii) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war or (iv) the occurrence of any other
calamity or crisis or any change in financial, political or economic conditions
in the United States or elsewhere, if the effect of any such event specified in
clause (iii) or (iv) in the judgment of the Representative makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the Offering
Circular;
(h) The Securities have been designated for trading on PORTAL;
(i) The Company shall have furnished or caused to be furnished to you at
the Time of Delivery certificates of officers of the Company satisfactory to you
that the representations and warranties of the Company herein are true and
correct in all material respects (to the extent not otherwise qualified by
materiality or Material Adverse Effect) as if made on and as of such Time of
Delivery, that the Company has performed or complied in all material respects
(to the extent not otherwise qualified by materiality or Material Adverse
Effect) with all of its obligations hereunder to be performed at or prior to
such Time of Delivery, as to the matters set forth in subsection (e) of this
Section and as to such other matters as you may reasonably request;
(j) Prior to or simultaneously with the Time of Delivery, the Company
shall have consummated the Credit Agreement on terms no less favorable to the
Company than as described in the Offering Circular, and the Purchasers shall
have received counterparts, conformed as executed, of the Credit Agreement and
such other documentation as they reasonably deem necessary to evidence the
consummation thereof;
(k) Prior to or simultaneously with the Time of Delivery, the Company
shall have received at least $55.0 million in cash as consideration for
newly-issued shares of common stock on the terms described in the Offering
Circular, and the Purchasers shall have received such documentation as they
reasonably deem necessary to provide satisfactory evidence thereof;
(l) Prior to or simultaneously with the Time of Delivery, on the terms
described in the Offering Circular, (i) the Company shall have received
requisite consents to the modification of the financial maintenance covenants in
the indenture (the "2008 Indenture") relating to the Company's
13
10.25% Senior Notes due 2008 (the "2008 Notes") so as to permit the incurrence
of the Securities, the consummation of the Recapitalization, the transactions
contemplated by this Agreement and the amendments to the 2008 Indenture, (ii)
such modifications to the 2008 indenture shall have become operative and (iii)
the Purchasers shall have received such documentation as they reasonably deem
necessary to provide satisfactory evidence thereof. At the Time of Delivery, the
Company shall have repurchased all outstanding 2008 Notes or, with respect to
any 2008 Notes not repurchased, irrevocably deposited with U.S. Bank Trust
National Association, the trustee under the 2008 Indenture, notice of redemption
of such 2008 Notes from each holder thereof in accordance with the terms of the
2008 Indenture, and the Purchasers shall have received such documentation as
they reasonably deem necessary to provide satisfactory evidence thereof;
(m) Prior to or simultaneously with the Time of Delivery, on the terms
described in the Offering Circular, the Company shall have repurchased all
outstanding shares of the Company's existing Series B 13% cumulative accruing
pay-in-kind preferred stock, and the Purchasers shall have received such
documentation as they reasonably deem necessary to evidence the consummation
thereof;
(n) Prior to or simultaneously with the Time of Delivery, on the terms
described in the Offering Circular, the Company shall have paid in full all
amounts outstanding under the Company's existing revolving credit agreement,
dated as of October 25, 1999, all commitments to lend under such revolving
credit agreement shall have terminated, and the Purchasers shall have received
such documentation as they reasonably deem necessary to provide satisfactory
evidence thereof; and
(o) The Company shall have delivered executed copies of the Securities,
the Indenture and the Registration Rights Agreement to the Purchasers.
8. (a) The Company will indemnify and hold harmless each Purchaser against
any losses, claims, damages or liabilities, joint or several, to which such
Purchaser may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Offering Circular or the Offering
Circular, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact necessary
to make the statements therein not misleading, and will reimburse each Purchaser
for any legal or other expenses reasonably incurred by such Purchaser in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Offering Circular or the
Offering Circular or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Purchaser through Xxxxxxx, Xxxxx & Co. expressly for use therein.
(b) Each Purchaser will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Offering Circular or the Offering Circular, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Offering Circular or the Offering Circular
or any such amendment or
14
supplement in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Purchaser through Xxxxxxx, Sachs & Co.
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action 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) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Purchasers on the other from the offering
of the Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Purchasers on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Purchasers on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Purchasers. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or the Purchasers on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Purchasers
15
agree that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the Purchasers
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 subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Purchaser shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to investors
were offered to investors exceeds the amount of any damages which such Purchaser
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. The Purchasers' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Purchaser within the meaning of the Act; and the obligations of the Purchasers
under this Section 8 shall be in addition to any liability which the respective
Purchasers may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
9. (a) If any Purchaser shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Securities on
the terms contained herein. If within thirty-six hours after such default by any
Purchaser you do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Securities, or the Company notifies you that it has so arranged for the
purchase of such Securities, you or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Offering Circular,
or in any other documents or arrangements, and the Company agrees to prepare
promptly any amendments to the Offering Circular which in your opinion may
thereby be made necessary. The term "Purchaser" as used in this Agreement shall
include any person substituted under this Section with like effect as if such
person had originally been a party to this Agreement with respect to such
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of such
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the Company shall have
the right to require each non-defaulting Purchaser to purchase the principal
amount of Securities which such Purchaser agreed to purchase hereunder and, in
addition, to require each non-defaulting Purchaser to purchase its pro rata
share (based on the principal amount of Securities which such Purchaser agreed
to purchase hereunder) of the Securities of such defaulting Purchaser or
Purchasers for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Purchaser from liability for its default.
16
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of Securities
which remains unpurchased exceeds one-eleventh of the aggregate principal amount
of all the Securities, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Purchasers to purchase
Securities of a defaulting Purchaser or Purchasers, then this Agreement shall
thereupon terminate, without liability on the part of any non-defaulting
Purchaser or the Company, except for the expenses to be borne by the Company and
the Purchasers as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Purchaser from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Purchasers, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Purchaser or any controlling person of any Purchaser, the Company or any
officer or director or controlling person of the Company and shall survive
delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Purchaser except as
provided in Section 8 hereof and, as to any non-defaulting Purchaser, in Section
6 hereof; but, if for any other reason, the Securities are not delivered by or
on behalf of the Company as provided herein, the Company will reimburse the
Purchasers through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of one counsel, reasonably incurred by the
Purchasers in making preparations for the purchase, sale and delivery of the
Securities but the Company shall then be under no further liability to any
Purchaser except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Purchasers, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Purchaser made or given
by Xxxxxxx, Xxxxx & Co on behalf of you as the Representative.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Purchasers shall be delivered or sent by mail or
facsimile transmission to you as the representative at Xxxxxxx, Sachs & Co., 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department; and
if to the Company shall be delivered or sent by mail or facsimile transmission
to the address of the Company set forth in the Offering Circular, Attention:
Secretary; provided, however, that any notice to a Purchaser pursuant to Section
8(c) hereof shall be delivered or sent by mail or facsimile transmission to such
Purchaser at its address set forth in its Purchasers' Questionnaire, or document
constituting such Questionnaire, which address will be supplied to the Company
by you upon request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Purchasers, the Company and, to the extent provided in Sections 8 and 10
hereof, the officers and directors of the Company and each person who controls
the Company or any Purchaser, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Purchaser shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement.
17
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
17. The Company is authorized, subject to applicable law, to disclose any
and all aspects of this potential transaction that are necessary to support any
U.S. federal income tax benefits expected to be claimed with respect to such
transaction, and all materials of any kind (including tax opinions and other tax
analyses) related to those benefits, without the Purchasers imposing any
limitation of any kind.
If the foregoing is in accordance with your understanding, please sign and
return to us five counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Purchasers, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Purchasers and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Purchasers is pursuant to the authority set forth in a form of Agreement among
Purchasers, the form of which shall be submitted to the Company for examination
upon request, but without warranty on your part as to the authority of the
signers thereof.
18
Very truly yours,
Universal Hospital Services, Inc.
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President and Chief
Executive Officer
19
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
By: /s/ Xxxxxxx, Sachs & Co.
-----------------------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Purchasers
20
SCHEDULE I
PRINCIPAL
AMOUNT OF
SECURITIES
TO BE
PURCHASER PURCHASED
--------- ---------
Xxxxxxx, Sachs & Co............................................ $130,000,000
Credit Suisse First Boston LLC................................. 71,500,000
CIBC World Markets Corp........................................ 45,500,000
Xxxxxxxxx & Company, Inc....................................... 13,000,000
------------
Total.............................................. $260,000,000
============
21
ANNEX I
[Form of Xxxxxx & Whitney Opinion]
I-1
ANNEX II
[Form of Xxxx Xxxxxxx Opinion]
II-1
ANNEX III
[Form of Comfort Letter]
III-1
