Exhibit 4.3
PSYCHIATRIC SOLUTIONS, INC.
$220,000,000
7-3/4% SENIOR SUBORDINATED NOTES DUE 2015
PURCHASE AGREEMENT
June 30, 2005
Citigroup Global Markets Inc.
As Representative of the Initial Purchasers
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Psychiatric Solutions, Inc., a corporation organized under the laws of
Delaware (the "COMPANY"), proposes to issue and sell to the several parties
named in Schedule I hereto (the "INITIAL PURCHASERS"), for whom you (the
"REPRESENTATIVE") are acting as representative, $220,000,000 aggregate principal
amount of its 7-3/4% Senior Subordinated Notes Due 2015 (the "NOTES", and
together with the Guarantees (as defined below), the "SECURITIES"). The
Securities are to be issued under an indenture (the "INDENTURE"), to be dated as
of the Closing Date (as defined below), among the Company, each of the
Guarantors (as defined below) and Wachovia Bank, National Association, as
trustee (the "TRUSTEE"). The Securities will have the benefit of a registration
rights agreement (the "REGISTRATION RIGHTS AGREEMENT"), to be dated as of the
Closing Date, among the Company, each of the Guarantors and the Initial
Purchasers, pursuant to which the Company and the Guarantors will agree to
register a new series of notes (the "EXCHANGE NOTES") and related guarantees
(the "EXCHANGE GUARANTEES," and, together with the Exchange Notes, the "EXCHANGE
SECURITIES") under the Act (as defined in Section 18) subject to the terms and
conditions therein specified. Pursuant to the Registration Rights Agreement, the
Exchange Securities will be offered in exchange for the Securities. The Notes
will be fully and unconditionally guaranteed (the "GUARANTEES") by each of the
Company's direct and indirect domestic subsidiaries set forth on Schedule II
hereto (collectively, the "PSI GUARANTORS") and, as of the closing date of the
Acquisition (as defined below) by each of the additional subsidiaries as set
forth on Schedule III hereto (collectively, the "ADDITIONAL GUARANTORS," and
together with the PSI Guarantors, the "GUARANTORS"). To the extent there are no
additional parties listed on Schedule I other than you, the term Representative
as used herein shall mean you as the Initial Purchasers, and the terms
Representative and Initial Purchasers shall mean either the singular or plural
as the context requires. The use of the neuter in this Agreement shall include
the feminine and masculine wherever appropriate. Certain terms used herein are
defined in Section 18 hereof.
The sale of the Securities to the Initial Purchasers will be made without
registration of the Securities under the Act in reliance upon exemptions from
the registration requirements of the Act.
In connection with the offering of the Notes, the Company and the
Guarantors will (i) consummate the transactions contemplated by the stock
purchase agreement, dated as of March 10, 2005, as amended to date (the "STOCK
PURCHASE AGREEMENT"), with Ardent Health Services LLC and Ardent Behavioral (as
defined in Section 18) relating to the acquisition by the Company of all of the
outstanding capital stock of Ardent Behavioral for approximately $560.0 million
(the "ACQUISITION"), to be funded partially by borrowings under the $150,000,000
senior unsecured term loan agreement, to be dated as of July 1, 2005, among the
Company, the guarantors parties thereto, Citicorp North America, Inc., as
administrative agent, Citigroup Global Markets Inc., as syndication agent and
documentation agent, and the lenders thereto (the "BRIDGE FACILITY") and (ii)
enter into the Second Amended and Restated Credit Agreement, to be dated as of
July 1, 2005, among the Company, the subsidiary guarantors party thereto, and
lenders and letters of credit issuer parties thereto, which will provide for a
new senior secured term loan facility of $325.0 million and a new senior secured
revolving credit facility of up to $150.0 million (the "NEW SENIOR SECURED
CREDIT FACILITIES," and together with the Stock Purchase Agreement, the "RELATED
DOCUMENTS"). The net proceeds from the sale of the Notes will be applied as
described in the "Use of Proceeds" section of the Final Memorandum (as defined
below). The Acquisition, the entering into of the Second Amended and Restated
Credit Agreement and the offering of the Notes are collectively referred to
herein as the "Transactions."
In connection with the offer and sale of the Securities (the
"OFFERING"), the Company has prepared a preliminary offering memorandum, dated
June 24, 2005 (as amended or supplemented at the date thereof, including any and
all exhibits thereto and any information incorporated by reference therein, the
"PRELIMINARY MEMORANDUM"), and a final offering memorandum, dated June 30, 2005
(as amended or supplemented at the Execution Time, including any and all
exhibits thereto and any information incorporated by reference therein, the
"FINAL MEMORANDUM"). Each of the Preliminary Memorandum and the Final Memorandum
sets forth certain information concerning the Company, the Guarantors, and the
Securities. The Company hereby confirms that it has authorized the use of the
Preliminary Memorandum and the Final Memorandum, and any amendment or supplement
thereto, in connection with the offer and sale of the Securities by the Initial
Purchasers. Unless stated to the contrary, any references herein to the terms
"amend", "amendment" or "supplement" with respect to the Final Memorandum shall
be deemed to refer to and include any information filed under the Exchange Act
subsequent to the Execution Time that is incorporated by reference therein.
1. Representations, Warranties and Agreements of the Company and the
Guarantors. The Company and the Guarantors, jointly and severally, represent and
warrant to each Initial Purchaser as set forth below in this Section 1.
(a) The Preliminary Memorandum, at the date thereof, did not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. At the Execution Time and on the
Closing Date, the Final Memorandum did not and will not (and any amendment or
supplement thereto, at the date thereof and on the Closing Date, will not)
contain any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Company
and the Guarantors make no representation or warranty as to the information
contained in or omitted from the Preliminary Memorandum or the Final Memorandum,
or any amendment or supplement thereto, in reliance upon and in conformity
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with information furnished in writing to the Company by or on behalf of the
Initial Purchasers through the Representative specifically for inclusion
therein.
(b) Assuming the accuracy of the representations and warranties of
the Initial Purchasers contained in Section 4 and their compliance with the
agreements set forth therein, none of the Company, the Guarantors, any of their
respective Affiliates, or any person acting on its or their behalf has, directly
or indirectly, made offers or sales of any security, or solicited offers to buy
any security under circumstances that would require the registration of the
Securities under the Act.
(c) Assuming the accuracy of the representations and warranties of
the Initial Purchasers contained in Section 4 and their compliance with the
agreements set forth therein, none of the Company, the Guarantors, any of their
respective Affiliates, or any person acting on its or their behalf 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 engaged in any
directed selling efforts within the meaning of Rule 902 under the Act with
respect to the Securities, and the Company, the Guarantors and any person acting
on its or their behalf have complied with and will implement the offering
restrictions within the meaning of such Rule 902.
(d) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Act.
(e) Assuming the accuracy of the representations and warranties of
the Initial Purchasers contained in Section 4 and their compliance with the
agreements set forth therein, no registration under the Act of the Securities is
required for the offer and sale of the Securities to or by the Initial
Purchasers in the manner contemplated herein and in the Final Memorandum.
(f) None of the Company, the Guarantors or any of its or their
respective subsidiaries has paid or agreed to pay to any person any compensation
for soliciting another to purchase the Securities (except as contemplated by
this Agreement).
(g) None of the Company, the Guarantors or any of its or their
respective subsidiaries has, directly or indirectly, taken any action designed
to cause or which has constituted or which might reasonably be expected to cause
or result in, under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities.
(h) Each of the Company, the Guarantors and its or their respective
subsidiaries has been duly incorporated and is validly existing as a
corporation, limited liability company or partnership in good standing under the
laws of its jurisdiction of organization, is duly qualified to own or lease, as
the case may be, and to operate its properties and to conduct its business as
described in the Final Memorandum and is duly qualified to do business as a
foreign corporation, limited liability company or partnership and is in good
standing under the laws of each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, except such
failures to qualify as are not, either individually or in the aggregate,
material to the Company, the Guarantors or any of its or their respective
subsidiaries, taken as a whole, affecting the management, condition, financial
or otherwise, stockholders'
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equity, results of operations, business or prospects of the Company and its
subsidiaries, taken as a whole.
(i) None of the Company, the Guarantors or any of its or their
respective subsidiaries (i) is in violation of its charter or by-laws, (ii) is
in default, and no event has occurred that, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance of
any term, covenant, condition or other obligation contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its properties or
assets is subject, except for such violations or defaults that (a) could not
reasonably be expected to have a material adverse effect on the performance of
this Agreement, the Indenture, the Registration Rights Agreement or the Related
Documents, or the consummation of any of the transactions contemplated hereby
and thereby or (b) could not reasonably be expected to have material adverse
effect on the condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its subsidiaries, taken as a whole, whether or
not arising from transactions in the ordinary course of business (clauses (a)
and (b) collectively, a "Material Adverse Effect"), or (iii) is in violation of
any law, ordinance, governmental rule, regulation or court decree to which it or
its property or assets may be subject or has failed to obtain or maintain any
license, permit, certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct of its
business, except for such violations or defaults that do not have a Material
Adverse Effect.
(j) The Company has an authorized capitalization as set forth in the
Final Memorandum. All of the issued shares of capital stock of the Company and
the Guarantors have been duly authorized and validly issued and are fully paid
and non-assessable; and all of the issued shares of capital stock of each
subsidiary of the Company are owned directly or indirectly by the Company or the
Guarantors, free and clear of all liens, encumbrances, equities or claims, other
than liens, encumbrances, equities or claims under or permitted by the New
Senior Secured Credit Facilities.
(k) Each of the Company and the Guarantors has all requisite
corporate, limited liability company or partnership power and authority to enter
into this Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and each of the Guarantors.
(l) The Indenture has been duly authorized by the Company and each
of the Guarantors and, assuming due authorization, execution and delivery
thereof by the Trustee, when executed and delivered by the Company and each of
the Guarantors, will constitute a legal, valid and binding instrument
enforceable against the Company and each of the Guarantors in accordance with
its terms (subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance, preference or
other laws affecting creditors' rights generally from time to time in effect and
to general principles of equity).
(m) The Notes have been duly authorized by the Company and the
Guarantees have been duly authorized by the Guarantors and when duly executed by
the Company and each of the Guarantors and authenticated by the Trustee in
accordance with the provisions of the Indenture and delivered to, and paid for,
by the Initial Purchasers in accordance with the terms of this Agreement, the
Notes and the Guarantees will constitute legal, valid,
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binding and enforceable obligations of the Company and each of the Guarantors,
respectively, entitled to the benefits of the Indenture (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance, preference or other laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity).
(n) The Exchange Notes have been duly authorized by the Company and
the Exchange Guarantees have been duly authorized by the Guarantors and when
executed and authenticated in accordance with the provisions of the Indenture
and issued and delivered to the holders of the Securities in exchange therefor
as contemplated by the Registration Rights Agreement and the Indenture, will
have been duly executed and delivered by the Company and the Guarantors and will
constitute legal, valid and binding obligations of the Company and the
Guarantors, entitled to the benefits of the Indenture (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance, preference or other laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity).
(o) The Registration Rights Agreement has been duly authorized by
the Company and each of the Guarantors and, assuming due authorization,
execution and delivery thereof by the Initial Purchasers, when executed and
delivered by the Company and each of the Guarantors, will constitute a legal,
valid, binding and enforceable instrument of the Company and each of the
Guarantors (subject, as to the enforcement of remedies, to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance,
preference or other laws affecting creditors' rights generally from time to time
in effect and to general principles of equity), provided that no representation
is made with respect to Section 5 thereof.
(p) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein, in the Indenture or in the Registration Rights
Agreement, except such as may be required under the blue sky laws of any
jurisdiction in which the Securities are offered and sold and, in the case of
the Registration Rights Agreement, such as will be obtained under the Act and
the Trust Indenture Act.
(q) None of the execution, delivery and performance of this
Agreement, the Indenture, the Registration Rights Agreement, the Related
Documents, the issuance and sale of the Securities, or the consummation of any
of the transactions contemplated hereby or thereby, or the performance by the
Company or any Guarantors of its obligations hereunder or thereunder (i) will
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, lease or other agreement or instrument to which the
Company, the Guarantors or any of its or their respective subsidiaries is a
party or by which the Company, the Guarantors or any of its or their respective
subsidiaries is bound or to which any of the property or assets of the Company,
the Guarantors or any of its or their respective subsidiaries is subject, except
for such conflicts, breaches, violations or defaults that do not have a Material
Adverse Effect or for which a waiver or consent has been obtained, (ii) will
result in any violation of the provisions of the charter or by-laws of the
Company, the Guarantors or any of its or their respective subsidiaries or (iii)
will violate any applicable statute, order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company, the Guarantors
or any of its or their respective subsidiaries or any
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of their properties or assets, except for such conflicts, breaches, violations
or defaults that do not have a Material Adverse Effect.
(r) The historical financial statements of the Company (including
the related notes and supporting schedules) included in or incorporated by
reference in the Final Memorandum present fairly in all material respects the
financial condition and results of operations of the entities purported to be
shown thereby, at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved.
(s) The historical financial statements of Ramsay Youth Services,
Inc. ("RAMSAY") (including the related notes and supporting schedules)
incorporated by reference in the Final Memorandum present fairly in all material
respects the financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods indicated, and
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved.
(t) The historical financial statements of Northern Healthcare
Associates and subsidiaries ("NORTHERN HEALTHCARE") (including the related notes
and supporting schedules) incorporated by reference in the Final Memorandum
present fairly in all material respects the financial condition and results of
operations of the entities purported to be shown thereby, at the dates and for
the periods indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved.
(u) The historical financial statements of Ardent Behavioral
(including the related notes and supporting schedules) included in the Final
Memorandum present fairly in all material respects the financial condition and
results of operations of the entities purported to be shown thereby, at the
dates and for the periods indicated, and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved.
(v) The selected financial data set forth under the caption
"Selected Consolidated Financial and Operating Data" in the Final Memorandum
fairly present in all material respects, on the basis stated in the Final
Memorandum, the information included therein; the pro forma financial statements
included in the Final Memorandum include assumptions that provide a reasonable
basis for presenting the significant effects directly attributable to the
transactions and events described therein, the related pro forma adjustments
give appropriate effect to those assumptions, the pro forma adjustments reflect
the proper application of those adjustments to the historical financial
statement amounts in the pro forma financial statements included in the Final
Memorandum, the pro forma financial statements included in the Final Memorandum
comply as to form with the applicable accounting requirements of Regulation S-X
under the Act and the pro forma adjustments have been properly applied to the
historical amounts in the compilation of those statements.
(w) The other financial data, operating data and statistical
information and data included in or incorporated by reference in the Final
Memorandum is presented fairly in all material respects and, to the extent
derived therefrom, has been prepared on a basis consistent with such financial
statements and the books and records of the Company and its subsidiaries.
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(x) Ernst & Young LLP, who has certified certain historical
financial statements of the Company and Ardent Behavioral, whose reports are
included or incorporated by reference in the Final Memorandum and who has
delivered (a) the initial letters referred to in Section 6(d)(i) hereof and (b)
the bring-down letters referred to in Section 6(e)(i) hereof, is an independent
registered public accounting firm as required by the Act during the periods
covered by the financial statements on which it reported that were or are
incorporated by reference in the Final Memorandum.
(y) Deloitte & Touche LLP, who has certified certain historical
financial statements of Ramsay, whose report is incorporated by reference in the
Final Memorandum, is an independent registered public accounting firm as
required by the Act during the periods covered by the financial statements on
which it reported that were or are incorporated by reference in the Final
Memorandum.
(z) Xxxxxxxx & Company, LLP, who has certified certain historical
financial statements of Northern Healthcare, whose report is incorporated by
reference in the Final Memorandum and who has delivered (a) the initial letter
referred to in Section 6(d)(ii) hereof, and (b) the bring-down letter referred
to in Section 6(e)(ii) hereof, are independent public accountants as required by
the Act during the periods covered by the financial statements on which it
reported that were or are incorporated by reference in the Final Memorandum.
(aa) Xxxxx Xxxxxx and Company LLC, who has certified certain
historical financial statements of Brentwood, are independent public accountants
as required by the Act during the periods covered by the financial statements on
which it reported that were or are incorporated by reference in the Final
Memorandum.
(bb) Each of the Company and the Guarantors (i) makes and keeps
accurate books and records and (ii) maintains internal accounting controls that
provide reasonable assurance that (A) transactions are executed in accordance
with management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain accountability
for its assets, (C) access to its assets is permitted only in accordance with
management's authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
(cc) There are no legal or governmental proceedings pending to which
the Company, the Guarantors or any of its or their respective subsidiaries is a
party or of which any property or assets of the Company, the Guarantors or any
of its or their respective subsidiaries is the subject that, if determined
adversely to the Company, the Guarantors or any of its or their respective
subsidiaries, would reasonably be likely 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.
(dd) The Company, the Guarantors or each of their respective
subsidiaries own or possess 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
their respective businesses and have no reason to believe that the conduct of
their respective businesses will conflict with, and have not received any notice
of any claim of conflict with, any such rights of others, except for such
conflicts that do not or would not have a Material Adverse Effect.
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(ee) The Company, the Guarantors or each of their respective
subsidiaries have good and marketable title to all real property and good title
to all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described or incorporated by
reference in the Final Memorandum (exclusive of any amendment or supplement
thereto) and such as do not materially affect the value of the property of the
Company, the Guarantors or any of its or their respective subsidiaries taken as
a whole and do not materially interfere with the use made and proposed to be
made of such property by the Company, the Guarantors or any of its or their
respective subsidiaries; and all real property and buildings held under lease by
the Company, the Guarantors or any of its or their respective subsidiaries are
held by them under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company, the
Guarantors or any of its or their respective subsidiaries.
(ff) There are no stamp or other issuance or transfer taxes or
duties or other similar fees or charges required to be paid in connection with
the execution and delivery of this Agreement or the issuance or sale by the
Company and the Guarantors of the Securities.
(gg) No subsidiary of the Company or any of the Guarantors is
currently prohibited, directly or indirectly, from paying any dividends to the
Company or the Guarantors, from making any other distribution on such
subsidiary's capital stock, from repaying to the Company or the Guarantors any
loans or advances to such subsidiary from the Company or the Guarantors or from
transferring any of such subsidiary's property or assets to the Company or the
Guarantors or any other subsidiary of the Company or the Guarantors, except as
described in or contemplated in the Final Memorandum (exclusive of any amendment
or supplement thereto).
(hh) The Company and the Guarantors and its or their respective
subsidiaries possess all licenses, certificates, permits and other
authorizations issued by the appropriate U.S. federal, state or non-U.S.
regulatory authorities necessary to conduct their respective businesses, and
neither the Company, the Guarantors nor any of its or their respective
subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect, except as set forth in or
contemplated in the Final Memorandum (exclusive of any amendment or supplement
thereto).
(ii) The Company, the Guarantors and its and their respective
subsidiaries maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(jj) Each of the Company, the Guarantors or its or their respective
subsidiaries has filed all federal, state and local income and franchise tax
returns required to be filed through the date hereof and has paid all taxes due
thereon, and no tax deficiency has been determined adversely to the Company, the
Guarantors or any of its or their respective subsidiaries
8
that has had (nor does the Company, the Guarantors or any of its or their
respective subsidiaries have any knowledge of any tax deficiency that, if
determined adversely to the Company, the Guarantors or any of its or their
respective subsidiaries, might have) a Material Adverse Effect.
(kk) The Company, the Guarantors and each of their subsidiaries
carry, or are covered by, insurance in such amounts and covering such risks as
is customary for companies engaged in similar businesses in similar industries.
(ll) No labor disturbance by the employees of the Company, the
Guarantors or any of its or their respective subsidiaries exists or, to the
knowledge of the Company, the Guarantors or any of its or their respective
subsidiaries, is imminent that could be expected to have a Material Adverse
Effect.
(mm) Each of the Company and the Guarantors is in compliance in all
material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder ("ERISA"); no "reportable event" (as
defined in ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company, the Guarantors or any of its or their respective
subsidiaries would have any liability; neither the Company, the Guarantors or
any of its or their respective subsidiaries has incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to the termination of,
or withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "pension plan" for
which the Company, the Guarantors or any of its or their respective subsidiaries
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 would cause the loss of such
qualification.
(nn) Neither the Company or any of the Guarantors has taken any
action or omitted to take any action (such as issuing any press release relating
to any Securities without an appropriate legend) which may result in the loss by
any of the Initial Purchasers of the ability to rely on any stabilization safe
harbor provided by the Financial Services Authority under the Financial Services
and Markets Xxx 0000 (the "FSMA"). The Company and each of the Guarantors have
been informed of the guidance relating to stabilization provided by the
Financial Services Authority, in particular in Section MAR 2 Annex 2G of the
Financial Services Handbook.
(oo) Set forth on Exhibit A hereto is a list of each employee
pension or benefit plan with respect to which the Company or any corporation
considered an affiliate of the Company within the meaning of Section 407(d)(7)
of ERISA is a party in interest or disqualified person.
(pp) Neither the Company, the Guarantors or any of its or their
respective subsidiaries, nor any director, officer, agent, employee or other
person associated with or acting on behalf of the Company, the Guarantors or any
of its or their respective subsidiaries, has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect unlawful payment to any foreign
or domestic government official or employee from corporate funds; violated or is
in violation of any
9
provision of the Foreign Corrupt Practices Act of 1977; or made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(qq) Except for such matters as would not, individually or in the
aggregate, either result in a Material Adverse Effect or require disclosure in
the Final Memorandum, the Company, the Guarantors and its or their respective
subsidiaries (or, to the knowledge of the Company, any of their predecessors in
interest) (1) are conducting and have conducted their businesses, operations and
facilities in compliance with Environmental Law (as defined below); (2) possess,
and are in compliance with, any and all permits, licenses or registrations
required under Environmental Law ("ENVIRONMENTAL PERMITS"); (3) will not require
material expenditures to maintain such compliance with Environmental Law or
their Environmental Permits or to remediate, clean up, xxxxx or remove any
Hazardous Substance (as defined below); and (4) are not subject to any pending
or, to the best knowledge of the Company, the Guarantors or any of its or their
respective subsidiaries, threatened claim or other legal proceeding under any
Environmental Laws against the Company, the Guarantors or any of its or their
respective subsidiaries, and have not been named as a "potentially responsible
party" under or pursuant to any Environmental Law. As used in this paragraph,
"Environmental Law" means any and all applicable federal, state, local and
foreign laws, ordinances, regulations and common law, or any administrative or
judicial order, consent, decree or judgment thereof, relating to pollution or
the protection of human health or the environment, including, without
limitation, those related to (i) emissions, discharges, releases or threatened
releases of, or exposure to, Hazardous Substances, (ii) the generation,
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Substances, or (iii) the investigation,
remediation or cleanup of any Hazardous Substances. As used in this paragraph,
"Hazardous Substances" means pollutants, contaminants or hazardous, dangerous,
toxic, biohazardous or infectious substances, materials or wastes or any other
chemical substance regulated under Environmental Laws.
(rr) Except as set forth or incorporated by reference in the Final
Memorandum (exclusive of any amendment or supplement thereto), neither the
Company, the Guarantors or any of its or their respective subsidiaries nor, to
the knowledge of the Company, any other person who has a direct or indirect
ownership or control interest in the Company, the Guarantors or any of its or
their respective subsidiaries or who is an officer, director, agent or managing
employee of the Company or any of its subsidiaries (1) has engaged in any
activities which are prohibited, or are cause for criminal or civil penalties
and/or mandatory or permissive exclusion from Medicare or Medicaid, under
Section 1320a-7, 1320a-7a, 1320a-7b, or 1395nn of Title 42 of the United States
Code, the federal TRICARE statute, the Federal False Claims Act 31 U.S.C.
Section 3729-3733, or the regulations promulgated pursuant to such statutes or
regulations or related state or local statutes or by generally recognized
professional standards of care or conduct, except for such activities as would
not, individually or in the aggregate, result in a Material Adverse Effect; (2)
has had a civil monetary penalty assessed against it under Section 1128A of the
Social Security Act ("SSA"); (3) is currently excluded from participation under
the Medicare program or a Federal Health Care Program (as that term is defined
in SSA Section 1128(B)(f)); or (4) has been convicted (as that term is defined
in 42 C.F.R. Section 1001.2) of any of the categories of offenses described in
SSA Section 1128(a) and (b)(1), (2) and (3).
(ss) None of the Company, the Guarantors or any of their respective
subsidiaries is, or after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the Final
Memorandum will be required to register as an "investment company" as defined in
the Investment Company Act of 1940, as amended.
10
(tt) The minute books and records of the Company relating to
proceedings of its shareholders, board of directors and committees of its board
of directors made available to Weil, Gotshal & Xxxxxx LLP, counsel for the
Initial Purchasers, are the original minute books and records or are true,
correct and complete copies thereof, with respect to all proceedings of said
shareholders, board of directors and committees since December 14, 2004, through
the date hereof. In the event that definitive minutes have not been prepared
with respect to any proceedings of such shareholders, board of directors or
committees, the Company has provided Weil, Gotshal & Xxxxxx LLP with originals
or true, correct and complete copies of draft minutes or written agendas
relating thereto, which drafts and agendas, if any, reflect all events that
occurred in connection with such proceedings.
(uu) The statements contained or incorporated by reference in (i)
the Final Memorandum under the captions "Description of the Notes", "Description
of Other Indebtedness", "Notice to Investors", "Plan of Distribution" and
"Material U.S. Federal Income Tax Considerations" and (ii) Item 1 of Part I of
the Company's Annual Report of Form 10-K for the fiscal year ended December 31,
2004 under the caption "Regulation and Other Factors", in each case as amended
and supplemented by statements contained in the Final Memorandum or documents
incorporated by reference in the Final Memorandum (exclusive in each case of any
amendment or supplement thereto) insofar as it purports to constitute a summary
of the terms of the Securities, legal matters, agreements, documents or
proceedings discussed therein and the statements incorporated by reference from
the Company's proxy statement filed with the Commission on April 22, 2005 under
the heading "Certain Relationships and Related Transactions" are accurate in all
material aspects.
(vv) The Company is subject to and in full compliance with the
reporting requirements of Section 13 or 15(d) of the Exchange Act. All reports
filed by the Company with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act comply as to form in all material respects with the Exchange Act.
(ww) The Company has established and maintains disclosure controls
and procedures (as such term is defined in Rule 13a-15 under the Exchange Act),
which (i) are 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 and is made known to the Company's
principal executive officer and its principal financial officer by others within
those entities, particularly during the periods in which the periodic reports
required under the Exchange Act are being prepared; (ii) have been evaluated for
effectiveness as of the end of the last fiscal quarter; and (iii) are effective
in all material respects to perform the functions for which they were
established.
(xx) Based on the evaluation of its disclosure controls and
procedures, the Company is not aware of (i) any significant deficiency in the
design or operation of internal controls which could adversely affect the
Company's ability to record, process, summarize and report financial data or any
material weaknesses in internal controls; or (ii) any fraud, whether or not
material, that involves management or other employees who have a significant
role in the Company's internal controls.
(yy) Since the date of the most recent evaluation of such disclosure
controls and procedures, there have been no significant changes in internal
controls or in other factors that
11
could significantly affect internal controls, including any corrective actions
with regard to significant deficiencies and material weaknesses.
(zz) There is and has been no failure on the part of the Company and
any of the Company's directors or officers, in their capacities as such, to
comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith (the "Sarbanes Oxley Act"),
including Section 402 related to loans and Section 302 and 906 related to
certifications.
(aaa) Except as disclosed or incorporated by reference in the Final
Memorandum (exclusive of any amendment or supplement thereto), there are no
contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any Initial Purchaser
for a brokerage commission, finder's fee or other like payment in connection
with this offering.
(bbb) The market-related and industry data included or incorporated
by reference in the Final Memorandum are based upon estimates by the Company
derived from sources that the Company believes to be reliable and accurate.
Any certificate signed by any officer of the Company or any
Guarantor and delivered to the Representative or counsel for the Initial
Purchasers in connection with the Offering shall be deemed a representation and
warranty by the Company or such Guarantor, as to matters covered thereby, to
each Initial Purchaser.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
and the Guarantors agree to sell to each Initial Purchaser, and each Initial
Purchaser agrees, severally and not jointly, to purchase from the Company and
the Guarantors, at a purchase price of 98.0% of the principal amount thereof,
plus accrued interest, if any, from July 6, 2005 to the Closing Date, the
principal amount of Notes set forth opposite such Initial Purchaser's name in
Schedule I hereto.
The Company acknowledges and agrees that the Initial Purchasers are
acting solely in the capacity of an arm's length contractual counterparty to the
Company with respect to the offering of Securities contemplated hereby
(including in connection with determining the terms of the Offering) and not as
a financial advisor or a fiduciary to, or an agent of, the Company or any other
person. Additionally, no Initial Purchaser is advising the Company or any other
person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such
matters and shall be responsible for making their own independent investigation
and appraisal of the transactions contemplated hereby, and the Initial
Purchasers shall have no responsibility or liability to the Company with respect
hereto. Any review by the Initial Purchasers of the Company, the transactions
contemplated hereby or other matters relating to such transactions will be
performed solely for the benefit of the Initial Purchasers and shall not be on
behalf of the Company.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made at 10:00 A.M., New York City time, on July 6, 2005, or at such
time on such later date not more than three Business Days after the foregoing
date as the Representative shall designate, which date and time may be postponed
by agreement between the Representative and the Company or as provided in
Section 9 hereof (such date and time of delivery and payment for the
12
Securities being herein called the "CLOSING DATE"). Delivery of the Securities
shall be made to the Representative for the respective accounts of the several
Initial Purchasers against payment by the several Initial Purchasers through the
Representative of the purchase price thereof to or upon the order of the Company
by wire transfer payable in same-day funds to the account specified by the
Company. The Securities shall be delivered in such names, forms and amounts as
the Initial Purchasers shall specify and delivery shall be made through the
facilities of The Depository Trust Company unless the Representative shall
otherwise instruct.
4. Offering by the Initial Purchasers.
(a) Each Initial Purchaser acknowledges that 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 pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Act.
(b) Each Initial Purchaser, severally and not jointly, represents
and warrants to and agrees with the Company and the Guarantors that:
(i) it has not offered or sold, and will not offer or sell,
any Securities within the United States or to, or for the account or benefit of,
U.S. persons (x) as part of their distribution at any time or (y) otherwise
until 40 days after the later of the commencement of the offering and the date
of closing of the offering except:
(A) to those it reasonably believes to be "qualified
institutional buyers" (as defined in Rule 144A under the Act) or
(B) in accordance with Rule 903 of Regulation S;
(ii) neither it nor any person acting on its behalf has made
or will make offers or sales of the Securities in the United States by means of
any form of general solicitation or general advertising (within the meaning of
Regulation D) in the United States;
(iii) in connection with each sale pursuant to Section
4(b)(i)(A), it has taken or will take reasonable steps to ensure that the
purchaser of such Securities is aware that such sale is being made in reliance
on Rule 144A;
(iv) neither it, nor any of its Affiliates nor any person
acting on its or their behalf has engaged or will engage in any directed selling
efforts (within the meaning of Regulation S) with respect to the Securities;
(v) it has not entered and will not enter into any contractual
arrangement with any distributor (within the meaning of Regulation S) with
respect to the distribution of the Securities, except with its affiliates or
with the prior written consent of the Company;
(vi) it and its Affiliates have complied and will comply with
the offering restrictions requirement of Regulation S;
13
(vii) at or prior to the confirmation of sale of Securities
(other than a sale of Securities pursuant to Section 4(b)(i)(A) of this
Agreement), it shall have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Securities from it
during the distribution compliance period (within the meaning of Regulation S) 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 "Act") and may not be offered or 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 date of closing of the
offering, except in either case in accordance with Regulation S or Rule 144A
under the Act. Terms used in this paragraph have the meanings given to them by
Regulation S."
(viii) it has not offered or sold and, prior to the date six
months after the date of issuance of the Securities, will not offer or sell any
Securities to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or as agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995;
(ix) it has complied and will comply with all applicable
provisions of the FSMA) with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom;
(x) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any invitation or inducement
to engage in investment activity (within the meaning of section 21 of the FSMA)
received by it in connection with the issue or sale of any Securities, in
circumstances in which section 21(1) of the FSMA does not apply to the Company;
and
(xi) it is an "accredited investor" (as defined in Rule 501(a)
of Regulation D).
5. Agreements. The Company and the Guarantors agree as set forth
below, jointly and severally, with the Initial Purchasers that:
(a) The Company and the Guarantors will furnish to each Initial
Purchaser and to counsel for the Initial Purchasers, without charge, during the
period referred to in paragraph (c) below, as many copies of the Final
Memorandum and any amendments and supplements thereto as they may reasonably
request.
(b) The Company and the Guarantors will not amend or supplement the
Final Memorandum, other than by filing documents under the Exchange Act that are
incorporated by reference therein, without the prior written consent of the
Representative; provided, however, that, prior to the completion of the
distribution of the Securities by the Initial Purchasers (as determined by the
Initial Purchasers), the Company will not file any document under the Exchange
Act that is incorporated by reference in the Final Memorandum unless, prior to
such proposed filing, the Company has furnished the Representative with a copy
of such document for
14
their review and the Representative have not reasonably objected to the filing
of such document. The Company will promptly advise the Representative when any
document filed under the Exchange Act that is incorporated by reference in the
Final Memorandum shall have been filed with the Commission.
(c) If at any time prior to the completion of the sale of the
Securities by the Initial Purchasers (as determined by the Representative), any
event occurs as a result of which the Final Memorandum, as then amended or
supplemented, would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if it should
be necessary to amend or supplement the Final Memorandum to comply with
applicable law, the Company and the Guarantors will promptly (i) notify the
Representative of any such event; (ii) subject to the requirements of paragraph
(b) of this Section 5, prepare an amendment or supplement that will correct such
statement or omission or effect such compliance; and (iii) supply any
supplemented or amended Final Memorandum to the several Initial Purchasers and
counsel for the Initial Purchasers without charge in such quantities as they may
reasonably request.
(d) The Company and the Guarantors will arrange, if necessary, for
the qualification of the Securities for sale by the Initial Purchasers under the
laws of such jurisdictions as the Representative may designate and will maintain
such qualifications in effect so long as required for the sale of the
Securities; provided that in no event shall the Company be obligated to qualify
to do business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than
those arising out of the Offering, in any jurisdiction where it is not now so
subject. The Company will promptly advise the Representative of the receipt by
the Company or any Guarantor of any notification with respect to the suspension
of the qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(e) During the period of two years after the Closing Date, the
Company and the Guarantors will not, and will not permit any of its Affiliates
to, resell any Securities that have been acquired by any of them.
(f) None of the Company, the Guarantors, their respective Affiliates
or any person acting on its or their behalf will, directly or indirectly, make
offers or sales of any security, or solicit offers to buy any security, under
circumstances that would require the registration of the Securities.
(g) None of the Company, the Guarantors, their respective Affiliates
or any person acting on its or their behalf will engage in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Securities in the United States and
none of the Company, the Guarantors, their respective Affiliates, or any person
acting on its or their behalf will engage in any directed selling efforts with
respect to the Securities, and each of them will comply with the offering
restrictions requirement of Regulation S. Terms used in this paragraph have the
meanings given to them by Regulation S.
(h) So long as any of the Securities are "restricted securities"
within the meaning of Rule 144(a)(3) under the Act, the Company and the
Guarantors will, during any
15
period in which they are not subject to and in compliance with Section 13 or
15(d) of the Exchange Act, provide to each holder of such restricted securities
and to each prospective purchaser (as designated by such holder) of such
restricted securities, upon the request of such holder or prospective purchaser,
any information required to be provided by Rule 144A(d)(4) under the Act. Such
information will not, at the date thereof, contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. This covenant is intended to be for the benefit of the
holders, and the prospective purchasers designated by such holders, from time to
time of such restricted securities.
(i) The Company and the Guarantors will cooperate with the
Representative and use their respective best efforts to have the Securities
designated as PORTAL eligible securities in accordance with the rules and
regulations of the NASD and to permit the Securities to be eligible for
clearance and settlement through The Depository Trust Company.
(j) The Company and the Guarantors will use the net proceeds
received from the sale of the Securities pursuant to this Agreement in the
manner specified in the Final Memorandum.
(k) None of the Company, any of the Guarantors or any of its or
their respective subsidiaries will for a period of 90 days following the
Execution Time, without the prior written consent of Citigroup, directly or
indirectly, offer, sell, contract to sell, pledge, otherwise dispose of, or
enter into any transaction that is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or any
Affiliate of the Company or any person in privity with the Company or any
Affiliate of the Company, directly or indirectly, or announce the offering of,
any debt securities issued or guaranteed by the Company (other than the
Securities).
(l) None of the Company, any of the Guarantors or any of its or
their respective subsidiaries will take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities.
(m) The Company and the Guarantors agree to pay the costs and
expenses relating to the following matters: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
issuance of the Securities; (ii) all expenses in connection with the
preparation, printing and filing of the Preliminary Memorandum and Final
Memorandum and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Initial Purchasers and dealers; (iii) the
cost of printing or producing this Agreement, the Indenture, the Registration
Rights Agreement, the Securities, the Blue Sky Memoranda, closing documents
(including, without limitation, any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Securities; (iv) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 5(d) hereof, including, without limitation, the fees and disbursements
of counsel for the Initial Purchasers in connection with such qualification and
in connection with the Blue Sky surveys; (v) any fees charged by securities
rating services for rating the Securities; (vi) the cost related to the
preparation, printing, authentication, issuance, and
16
delivery of certificates for the Securities; (vii) any stamp or transfer taxes
in connection with the original issuance and sale of the Securities; (viii) 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; (ix) any cost incurred in connection with the designation of the
Securities for trading in the PORTAL; (x) investor presentations on any "road
show" undertaken in connection with the marketing of the offering of the Notes,
including, without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of the
Company, but shall not be responsible for any of the cost of any aircraft
chartered in connection with the road show; (xi) filing and fees and expenses in
connection with the filing of a registration statement with the Commission under
the Act and the qualification of an indenture under the Trust Indenture Act,
pursuant to the Registration Rights Agreement; and (xii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section.
(n) The Company and the Guarantors will, for a period of twelve
months following the Execution Time, furnish to the Representative (i) all
reports or other communications (financial or other) generally made available to
stockholders, and deliver such reports and communications to the Representative
as soon as they are available, unless such documents are furnished to or filed
with the Commission or any securities exchange on which any class of securities
of the Company is listed and generally made available to the public and (ii)
such additional information concerning the business and financial condition of
the Company as the Representative may from time to time reasonably request (such
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to
stockholders).
(o) The Company and the Guarantors will use their reasonable best
efforts to comply with all applicable securities and other laws, rules and
regulations, including, without limitation, provisions of the Xxxxxxxx-Xxxxx Act
and rules and regulations of the NASD, and use its reasonable best efforts to
cause the respective directors and officers of the Company and each of the
Guarantors, in their capacities as such, to comply with such laws, rules and
regulations.
(p) The Company and the Guarantors will not take any action or omit
to take any action (such as issuing any press release relating to any Securities
without an appropriate legend) which may result in the loss by any of the
Initial Purchases of the ability to rely on any stabilization safe harbor
provided by the Financial Services Authority under the FSMA.
6. Conditions of Initial Purchasers' Obligations. The obligations of
the Initial Purchasers hereunder are subject to the accuracy of the
representations and warranties of the Company and the Guarantors contained
herein at the Execution Time and the Closing Date or in certificates of any
officer of the Company or the Guarantors delivered pursuant to the provisions
hereof, to the performance by the Company and the Guarantors of their covenants
and other obligations hereunder, and to the following further conditions:
(a) Xxxxxx Xxxxxxx Xxxxxx & Xxxxx PLLC shall have furnished to the
Representative its written opinion, or letter or letters, as counsel to the
Company and the Guarantors, addressed to the Representative and dated the
Closing Date, substantially in the form of Exhibit B hereto.
17
(b) The Representative shall have received from Weil, Gotshal &
Xxxxxx LLP, counsel for the Initial Purchasers, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Securities, the
Indenture, the Registration Rights Agreement, the Final Memorandum and other
related matters as the Representative may reasonably require, and the Company
and the Guarantors shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such matters.
(c) At time of the execution of this Agreement, the Representative
shall have received from:
(i) Ernst & Young LLP, two letters, one with respect to the
financial information of the Company and the other with respect to
the financial information of Ardent Behavioral, included or
incorporated by reference in the Final Memorandum, each in form and
substance satisfactory to the Representative, addressed to the
Representative and dated the date hereof (A) confirming that it is
an independent registered public accounting firm within the meaning
of the Act and is in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (B) stating, as of the date hereof
(or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is
given or incorporated by reference in the Final Memorandum, as of a
date not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants'
"comfort letters" to Representative in connection with registered
public offering;
(ii) Xxxxxxxx & Company, LLP, a letter with respect to the
financial information of Northern Healthcare, in form and substance
satisfactory to the Representative, addressed to the Initial
Purchasers and dated the date hereof (A) confirming that they are
independent public accountants with respect to Northern Healthcare,
(B) stating, as of the date hereof, the conclusions and findings of
such firm with respect to the financial information and other
matters ordinarily covered by accountants' "comfort letters" to
Initial Purchasers in connection with registered public offering;
(d) With respect to the letters referred to in the immediately
preceding paragraph and delivered to the Representative concurrently with the
execution of this Agreement (each, an "INITIAL LETTER"), the Representative
shall have received a letter (each, a "BRING-DOWN LETTER") addressed to the
Representative and dated as of the Closing Date:
(i) Ernst & Young LLP, with respect to the financial
information of the Company and Ardent Behavioral, incorporated by
reference in the Final Memorandum, (A) confirming that it is an
independent registered public accounting firm within the meaning of
the Act and is in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (B) stating, as of the date of
each of the bring-down letters (or, with respect to matters
involving changes or developments since the respective dates as of
which specified financial
18
information is given or incorporated by reference in the Final
Memorandum, as of a date not more than five days prior to the date
of each of the bring-down letters), the conclusions and findings of
such firm with respect to the financial information and other
matters covered by each of the initial letters and (C) confirming in
all material respects the conclusions and findings set forth in each
of the initial letters;
(ii) Xxxxxxxx & Company, LLP, with respect to the financial
information of Northern Healthcare, incorporated by reference in the
Final Memorandum, (A) confirming that they are independent public
accountants with respect to Northern Healthcare, (B) stating, as of
the date of the bring-down letter, the conclusions and findings of
such firm with respect to the financial information and other
matters covered by the initial letter; and
(e) The Company shall have furnished to the Representative a
certificate, dated the Closing Date, signed by the Chief Executive Officer and
Chief Accounting Officer of the Company stating, as applicable, that:
(i) The representations, warranties and agreements of the
Company and the Guarantors contained herein, as applicable, are true
and correct in all material respects (except with respect to
representations, warranties and agreements already qualified by
materiality) as if made on and as of the Closing Date (other than to
the extent any such representation or warranty is made expressly to
a certain date), and the Company and the Guarantors have performed
all covenants and agreements and satisfied all conditions (after
giving effect to all materiality qualifiers herein) on their part to
be performed or satisfied hereunder, to the extent a party hereto,
at or prior to the Closing Date; and the conditions set forth in
Section 6 have been fulfilled; and
(ii) They have carefully examined the Final Memorandum
(exclusive of any amendment or supplement thereto) and, in their
opinion (A) as of the Closing Date, the Final Memorandum did not
include, and as of its date and the Closing Date the Final
Memorandum did not include any untrue statement of a material fact
and did not omit to state a material fact required to be stated
therein or necessary, in the light of the circumstances under which
made, to make the statements therein not misleading, and (B) since
the date of the Final Memorandum, no event has occurred which should
have been set forth in an amendment to the Final Memorandum or
supplement to the Final Memorandum.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Final Memorandum (exclusive of any amendment
or supplement thereto), there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (c) or (d) of this
Section 6; or (ii) any change, or any development involving a prospective
change, in or affecting the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Memorandum
(exclusive of any amendment or supplement thereto), the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the sole judgment of the
Representative, so material and adverse as to make it impractical or inadvisable
to proceed with
19
the offering, sale or delivery of the Securities as contemplated in the Final
Memorandum (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's securities by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Act) or any notice given of any intended or potential decrease
in any such rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have furnished to
the Representative such further information, certificates and documents as the
Representative may reasonably request.
(i) The Representative shall have received a certificate from the
Company, at the time of the execution of this Agreement and on the Closing Date,
signed by the Chief Accounting Officer of the Company, in respect of the
financial data contained in footnote (1) to the Unaudited Pro Forma Condensed
Combined Income Statement for the twelve months ended March 31, 2005 and the
year ended December 31, 2004 relating to Brentwood, Northern Healthcare and each
of the hospitals consolidated under the column "Non-Significant Acquisitions"
stating, as applicable, that:
(1) The financial statements attached to the certificate are ,
in fact, a true and accurate copy of the financial data for Brentwood,
Northern Healthcare and each of the hospitals consolidated under the
column "Non-Significant Acquisitions" used to create the data contained in
footnote (1) to the Unaudited Pro Forma Condensed Combined Income
Statement for the twelve months ended March 31, 2005 and the year ended
December 31, 2004 (the "FINANCIAL STATEMENTS");
(2) As members of management of Brentwood, Northern Healthcare
and each of the hospitals consolidated under the column "Non-Significant
Acquisitions," he is responsible for the fair presentation of its
financial statements and he believes the statements of financial position
and results of operations are fairly presented in conformity with
accounting principles generally accepted in the United States applied on a
basis consistent with that of the preceding periods;
(3) There are no unadjusted audit differences identified
during the current audit and pertaining to the period presented;
(4) No plans or intentions exist that may materially affect
the carrying value or classification of assets and liabilities;
(5) There are no material transactions that have not been
properly recorded in the accounting records underlying the Financial
Statements;
(6) There are no material weaknesses in internal control,
including any for which he believes the cost of corrective actions exceeds
the benefits and there have been no significant changes in internal
control since December 31, 2004;
20
(7) No events or transactions have occurred since December 31,
2004 or are pending that would have a material effect on the financial
statements at that date or for the period then ended, or that are of such
significance in relation to the affairs of Brentwood, Northern Healthcare
or each of the hospitals consolidated under the column "Non-Significant
Acquisitions" to require mention in a note to the Financial Statements or
the pro forma financial statements contained in the Final Memorandum in
order to make them not misleading regarding the respective financial
position, results of operations, or cash flows of Brentwood, Northern
Healthcare or each of the hospitals consolidated under the column
"Non-Significant Acquisitions."
(j) Prior to the Closing Date, the Acquisition shall have been
consummated.
(k) Concurrently with the closing of the Offering, the Bridge
Facility shall be fully repaid and all obligations of the Company and the
guarantors thereunder shall be satisfied in full and discharged.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representative and counsel
for the Initial Purchasers, this Agreement and all obligations of the Initial
Purchasers hereunder may be cancelled at, or at any time prior to, the Closing
Date by the Representative. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in writing.
7. Reimbursement of Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the
Initial Purchasers set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company or any Guarantor to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Initial Purchasers, the Company will reimburse the Initial
Purchasers severally through Citigroup on demand for all expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) Each of the Company and the
Guarantors agrees, jointly and severally, to indemnify and hold harmless each
Initial Purchaser, the directors, officers, employees, Affiliates and agents of
each Initial Purchaser and each person who controls any Initial Purchaser within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other U.S. federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Memorandum, the Final Memorandum or
in any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by it in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
Company and the
21
Guarantors will 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 any such untrue
statement or alleged untrue statement or omission or alleged omission made in
the Preliminary Memorandum, the Final Memorandum, or in any amendment thereof or
supplement thereto, in reliance upon and in conformity with written information
furnished to the Company or the Guarantors by or on behalf of any Initial
Purchaser through the Representative specifically for inclusion therein. This
indemnity agreement will be in addition to any liability that the Company or the
Guarantors may otherwise have.
(b) Each Initial Purchaser severally, and not jointly, agrees to indemnify
and hold harmless the Company, each of the Guarantors, each of their respective
directors and officers, and each person who controls the Company or the
Guarantors within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company and the Guarantors to each
Initial Purchaser, but only with reference to written information relating to
such Initial Purchaser furnished to the Company and the Guarantors by or on
behalf of such Initial Purchaser through the Representative specifically for
inclusion in the Preliminary Memorandum, the Final Memorandum or in any
amendment or supplement thereto. This indemnity agreement will be in addition to
any liability that any Initial Purchaser may otherwise have. The Company and the
Guarantors acknowledge that (i) the statements set forth in the last paragraph
of the cover page regarding delivery of the Securities and (ii), under the
heading "Plan of Distribution", (x) the first sentence of the third paragraph,
the fifth paragraph related to proposed resales of the Securities by the Initial
Purchasers and the eighth paragraph, (y) the fifth and sixth sentences of the
ninth paragraph related to market-making activities and (z) the tenth paragraph
related to stabilization, syndicate covering transactions and penalty bids, in
each case in the Preliminary Memorandum and the Final Memorandum constitute the
only information furnished in writing by or on behalf of the Initial Purchasers
for inclusion in the Preliminary Memorandum, the Final Memorandum or in any
amendment or supplement thereto.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel (including
local counsel) of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel,
other than local counsel if not appointed by the indemnifying party, retained by
the indemnified party or parties except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel (including
local counsel) to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be
22
legal defenses available to it and/or other indemnified parties that are
different from or additional to those available to the indemnifying party; (iii)
the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action; or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle, compromise or consent
to the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and does not
include any statement as to or any admission of fault, culpability or failure to
act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Guarantors, jointly and severally, and
the Initial Purchasers severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending any loss, claim, damage,
liability or action) (collectively "LOSSES") to which the Company, each of the
Guarantors and one or more of the Initial Purchasers may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors on the one hand and by the Initial Purchasers on the
other from the offering of the Securities; provided, however, that in no case
shall any Initial Purchaser be responsible for any amount in excess of the
purchase discount or commission applicable to the Securities purchased by such
Initial Purchaser hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Guarantors, jointly and severally, and the Initial Purchasers severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Guarantors,
on the one hand, and the Initial Purchasers, on the other, in connection with
the statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. Benefits received by the Company and the
Guarantors shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by the Company, and benefits
received by the Initial Purchasers shall be deemed to be equal to the total
purchase discounts and commissions. Relative fault shall be determined by
reference to, among other things, whether any untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company and the Guarantors, on the one
hand, or the Initial Purchasers, on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company, the Guarantors and the
Initial Purchasers agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation that
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Initial Purchasers' obligation to contribute
pursuant to this Section 8 shall be several in proportion to their respective
purchase obligations hereunder and not joint. For purposes of this Section 8,
each person who controls an Initial Purchaser within the meaning of either the
Act or the Exchange Act and each director, officer, employee, Affiliate and
agent of an Initial Purchaser shall have the same rights to contribution as
23
such Initial Purchaser, and each person who controls the Company or any of the
Guarantors within the meaning of either the Act or the Exchange Act and each
officer and director of the Company or any of the Guarantors shall have the same
rights to contribution as the Company or any of the Guarantors, subject in each
case to the applicable terms and conditions of this paragraph (d).
9. Default by an Initial Purchaser. If any one or more Initial
Purchasers shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Initial Purchaser hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Initial Purchasers shall be obligated severally to take
up and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Initial Purchasers) the Securities which the defaulting Initial
Purchaser or Initial Purchasers agreed but failed to purchase; provided,
however, that in the event that the aggregate principal amount of Securities
which the defaulting Initial Purchaser or Initial Purchasers agreed but failed
to purchase shall exceed 10% of the aggregate principal amount of Securities set
forth in Schedule I hereto, the remaining Initial Purchasers shall have the
right to purchase all, but shall not be under any obligation to purchase any, of
the Securities, and if such nondefaulting Initial Purchasers do not purchase all
the Securities, this Agreement will terminate without liability to any
nondefaulting Initial Purchaser or the Company. In the event of a default by any
Initial Purchaser as set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding five Business Days, as the
Representative shall determine in order that the required changes in the Final
Memorandum or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Initial Purchaser of
its liability, if any, to the Company or any nondefaulting Initial Purchaser for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representative, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the Nasdaq National Market or trading in securities generally
on the New York Stock Exchange or the Nasdaq National Market shall have been
suspended or limited or minimum prices shall have been established on either the
New York Stock Exchange or the Nasdaq National Market; (ii) a banking moratorium
shall have been declared either by U.S. federal or New York State authorities;
or (iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the sole judgment of the Representative, impractical or inadvisable to
proceed with the Offering or delivery of the Securities as contemplated by the
Final Memorandum (exclusive of any amendment or supplement thereto).
11. Additional Guarantors. On the Closing Date, the Company will
cause each of the Additional Guarantors to become a party to this Agreement by
causing each Additional Guarantor to execute a Guarantor Joinder Agreement in
the form attached hereto as Exhibit C and delivering an executed copy of such
Guarantor Joinder Agreement to the Initial Purchasers on the Closing Date,
whereupon each of the Additional Guarantors shall become jointly and severally
liable for all of the Company's obligations under Section 8 hereof; it being
acknowledged and agreed that the obligations of the Additional Guarantors under
Section 8
24
hereof shall not be effective unless and until the Additional Guarantors execute
and deliver a Guarantor Joinder Agreement.
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company, the Guarantors or their respective officers and of the Initial
Purchasers set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of the
Initial Purchasers or the Company, the Guarantors or any of the indemnified
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representative, will be mailed,
delivered or telefaxed to the Citigroup General Counsel (fax no.: (212)
000-0000) and confirmed to Citigroup at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: General Counsel; or, if sent to the Company, will be mailed,
delivered or telefaxed to it at 000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000 Xxxxxxxx,
Xxxxxxxxx 00000, Attention: Xxxxx Xxxxxx (Fax: (000) 000-0000), with copy to
Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, PLLC, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx,
Xxxxxxxxx 00000, Attention: Xxxxxxxxxxx X. Xxxxxx, Esq. (Fax: (000) 000-0000).
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
indemnified persons referred to in Section 8 hereof and their respective
successors, and, except as expressly set forth in Section 5(h) hereof, no other
person will have any right or obligation hereunder.
15. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York. The parties hereto each
hereby waive any right to trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Agreement.
16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
17. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
18. Definitions. The terms that follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 501(b) of
Regulation D.
"Ardent Behavioral" shall mean Ardent Health Services, Inc. and its
subsidiaries that operate the behavioral health care business of Ardent Health
Services, Inc.
25
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in The City of New York.
"Citigroup" shall mean Citigroup Global Markets Inc.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean, the date and time that this Agreement
is executed and delivered by the parties hereto.
"NASD" shall mean the National Association of Securities Dealers,
Inc.
"PORTAL" shall mean the Private Offerings, Resales and Trading
through Automated Linkages system of the NASD.
"Regulation D" shall mean Regulation D under the Act.
"Regulation S" shall mean Regulation S under the Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Guarantors and the several Initial Purchasers.
Very truly yours,
PSYCHIATRIC SOLUTIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Development Officer
SIGNATURE PAGE TO THE PURCHASE AGREEMENT
PSYCHIATRIC SOLUTIONS HOSPITALS, INC.
INFOSCRIBER CORPORATION
COLLABORATIVE CARE CORPORATION
PSYCHIATRIC SOLUTIONS OF ALABAMA, INC.
PSYCHIATRIC SOLUTIONS OF FLORIDA, INC.
PSYCHIATRIC SOLUTIONS OF TENNESSEE, INC.
SOLUTIONS CENTER OF LITTLE ROCK, INC.
PSYCHIATRIC SOLUTIONS OF NORTH CAROLINA, INC.
PSI COMMUNITY MENTAL HEALTH AGENCY MANAGEMENT, INC.
PSYCHIATRIC MANAGEMENT RESOURCES, INC.
PSI-EAP, INC.
SUNSTONE BEHAVIORAL HEALTH, INC.
THE COUNSELING CENTER OF MIDDLE TENNESSEE, INC.
PSI CEDAR SPRINGS HOSPITAL, INC.
PSYCHIATRIC SOLUTIONS OF OKLAHOMA, INC.
AERIES HEALTHCARE CORPORATION
AERIES HEALTHCARE OF ILLINOIS, INC.
PSI HOSPITALS, INC.
PSYCHIATRIC PRACTICE MANAGEMENT OF ARKANSAS, INC.
BOUNTIFUL PSYCHIATRIC HOSPITAL, INC.
EAST CAROLINA PSYCHIATRIC SERVICES CORPORATION
GREAT PLAINS HOSPITAL, INC.
GULF COAST TREATMENT CENTER, INC.
HAVENWYCK HOSPITAL INC.
H.C. CORPORATION
HSA HILL CREST CORPORATION
HSA OF OKLAHOMA, INC.
MICHIGAN PSYCHIATRIC SERVICES, INC.
RAMSAY MANAGED CARE, INC.
RAMSAY TREATMENT SERVICES, INC.
PREMIER BEHAVIORAL SOLUTIONS, INC.
PREMIER BEHAVIORAL SOLUTIONS OF ALABAMA, INC.
PREMIER BEHAVIORAL SOLUTIONS OF FLORIDA, INC.
RAMSAY YOUTH SERVICES OF GEORGIA, INC.
SIGNATURE PAGE TO THE PURCHASE AGREEMENT
RAMSAY YOUTH SERVICES PUERTO RICO, INC.
PREMIER BEHAVIORAL SOLUTIONS OF SOUTH CAROLINA, INC.
RHCI SAN ANTONIO, INC.
TRANSITIONAL CARE VENTURES, INC.
TRANSITIONAL CARE VENTURES (TEXAS), INC.
BRENTWOOD ACQUISITION, INC.
BRENTWOOD ACQUISITION-SHREVEPORT, INC.
CANYON RIDGE HOSPITAL, INC.
LAURELWOOD CENTER, INC.
PEAK BEHAVIORAL HEALTH SERVICES, INC.
PSI PRIDE INSTITUTE, INC.
PSI SUMMIT HOSPITAL, INC.
PSYCHIATRIC SOLUTIONS OF ARIZONA, INC.
PSYCHIATRIC SOLUTIONS OF LEESBURG, INC.
PSYCHIATRIC SOLUTIONS OF VIRGINIA, INC.
TUSCON HEALTH SYSTEMS, INC.
WHISPER RIDGE OF STAUNTON, INC.
FORT LAUDERDALE HOSPITAL, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
THERAPEUTIC SCHOOL SERVICES, LLC
BY: PSYCHIATRIC SOLUTIONS OF OKLAHOMA, INC., AS SOLE
MEMBER
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
PSI TEXAS HOSPITALS, LLC
BY: PSYCHIATRIC SOLUTIONS HOSPITALS,
INC., AS SOLE MEMBER
29
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
H.C. PARTNERSHIP
BY: H.C. CORPORATION, AS GENERAL PARTNER
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
BY: HSA HILL CREST CORPORATION, AS GENERAL PARTNER
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
MILLWOOD HOSPITAL, L.P.
TEXAS CYPRESS CREEK HOSPITAL, L.P.
TEXAS WEST OAKS HOSPITAL, L.P.
NEURO INSTITUTE OF AUSTIN, L.P.
TEXAS XXXXXX XXXXX HOSPITAL, L.P.
TEXAS OAKS PSYCHIATRIC HOSPITAL, L.P.
TEXAS SAN MARCOS TREATMENT CENTER, L.P.
BY: PSI TEXAS HOSPITALS, LLC, AS GENERAL PARTNER
BY: PSYCHIATRIC SOLUTIONS HOSPITAL, INC., AS SOLE
MEMBER
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
30
PSI CROSSINGS, LLC
BY: LAURELWOOD CENTER, INC., AS SOLE MEMBER
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
PALMETTO BEHAVIORAL HEALTH SYSTEM, L.L.C.
BY: PSYCHIATRIC SOLUTIONS OF SOUTH CAROLINA, INC.,
AS SOLE MEMBER
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
PALMETTO LOWCOUNTRY BEHAVIORAL HEALTH, L.L.C.
PALMETTO PEE DEE BEHAVIORAL HEALTH, L.L.C.
BY: PALMETTO BEHAVIORAL HEALTH SYSTEM, L.L.C., AS
SOLE MEMBER
BY: PSYCHIATRIC SOLUTIONS OF SOUTH CAROLINA, INC.,
AS SOLE MEMBER
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
31
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxx X. Xxx Xxxxxx
---------------------------
Name: Xxxx X. Xxx Xxxxxx
Title: Managing Director
For itself and the other several
Initial Purchasers named in Schedule I
to the foregoing Agreement.
SIGNATURE PAGE TO THE PURCHASE AGREEMENT
