XXXXX HEALTHCARE CORPORATION
and
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
SALOMON BROTHERS INC
DEUTSCHE XXXXXX XXXXXXXX INC.
and
BANCAMERICA XXXXXXXXX XXXXXXXX
------------------------------------
PURCHASE AGREEMENT
------------------------------------
Dated as of May 8, 1998
XXXXX HEALTHCARE CORPORATION
7 5/8% SENIOR NOTES DUE 2008
8 1/8% SENIOR SUBORDINATED NOTES DUE 2008
PURCHASE AGREEMENT
May 8, 1998
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
SALOMON BROTHERS INC
DEUTSCHE XXXXXX XXXXXXXX INC.
BANCAMERICA XXXXXXXXX XXXXXXXX
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Subject to the terms and conditions herein contained, Xxxxx
Healthcare Corporation, a Nevada corporation (the "Company"), proposes to
issue and sell to Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation ("DLJ")
and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxx
Securities Inc., Xxxxxx Xxxxxxx & Co. Incorporated, Salomon Brothers Inc,
Deutsche Xxxxxx Xxxxxxxx Inc. and BancAmerica Xxxxxxxxx Xxxxxxxx (together
with DLJ, the "Initial Purchasers") an aggregate of $350.0 million principal
amount of its 7 5/8% Senior Notes due 2008 (the "Senior Notes") and an
aggregate of $1.0 billion principal amount of its 8 1/8% Senior Subordinated
Notes due 2008 ( the "Senior Subordinated Notes" and, together with the
Senior Notes, the "Securities"). The Senior Notes are to be issued pursuant
to the provisions of an Indenture (the "Senior Note Indenture") to be dated
as of May 21, 1998, by and between the Company and The Bank of New York, as
Trustee (the "Senior Note Trustee"). The Senior Subordinated Notes are to be
issued pursuant to the provisions of an Indenture (the "Senior Subordinated
Note Indenture" and, together with the Senior Note Indenture, the
"Indentures") to be dated as of May 21, 1998 by and between the Company and
The Bank of New York, as Trustee (the "Senior Subordinated Note Trustee" and,
together with the Senior Note Trustee, the "Trustees").
1. OFFERING MEMORANDUM. The Securities will be offered and
sold to the Initial Purchasers pursuant to one or more exemptions from the
registration requirements under the Securities Act of 1933, as amended,
including the rules and regulations thereunder (collectively, the "Act"). The
Company has prepared a preliminary
offering memorandum, dated May 1, 1998 (including the documents incorporated by
reference therein, the "Preliminary Offering Memorandum"), and a final offering
memorandum, dated May 8, 1998 (including the documents incorporated by reference
therein, the "Offering Memorandum"), relating to the Securities.
Upon original issuance thereof, and until such time as the
same is no longer required pursuant to the Indentures, the Securities (and all
securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THIS NOTE (OR ITS PREDECESSORS) HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY,
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS,
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF OR A BENEFICIAL
INTEREST HEREIN, THE HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
(A "QIB"), OR (B) IT IS NOT A U.S. PERSON, IS NOT
ACQUIRING THIS NOTE FOR THE ACCOUNT OR BENEFIT
OF A U.S. PERSON AND IS ACQUIRING THIS NOTE IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATIONS UNDER THE SECURITIES ACT, (2) AGREES
THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED
TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE
PROVISIONS OF RULE 144(d) UNDER THE SECURITIES
ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS
IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE,
RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF,
(B) TO A PERSON WHOM THE HOLDER REASONABLY BELIEVES
IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER
THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
RULE 903 OR RULE 904 UNDER THE SECURITIES ACT,
(D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), (E) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OR (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE
TO THE COMPANY) AND, IN EACH CASE, IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS, AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S
UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REUSE TO REGISTER
ANY TRANSFER IF THIS NOTE IN VIOLATION OF THE
FOREGOING RESTRICTIONS."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company agrees to issue and sell to the Initial
Purchasers, and the Initial Purchasers agree, severally and not jointly, to
purchase from the Company (i) the Senior Notes in the respective principal
amounts set forth opposite their names on Schedule I hereto, plus such amount
as they may individually become obligated to purchase pursuant to Section 9
hereof, at a purchase price equal to 98.588% of the principal amount of the
Senior Notes, together with accrued interest, if any, to the Closing Date
(the "Senior Note
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Purchase Price") and (ii) the Senior Subordinated Notes in the respective
principal amounts set forth opposite their names on Schedule II hereto, plus
such amount as they may individually become obligated to purchase pursuant to
Section 9 hereof, at a purchase price equal to 97.869% of the principal
amount of the Senior Subordinated Notes, together with accrued interest, if
any, to the Closing Date (the "Senior Subordinated Note Purchase Price" and,
together with the Senior Note Purchase Price, the "Purchase Price"). The
Initial Purchasers will offer the Senior Notes to Eligible Purchasers
initially at a price equal to 99.962% of the principal amount thereof. The
Initial Purchasers will offer the Senior Subordinated Notes to Eligible
Purchasers initially at a price equal to 99.612% of the principal amount
thereof. Such prices may be changed at any time without notice.
The Initial Purchasers have advised the Company that the
Initial Purchasers will make offers (the "Exempt Resales") of the Securities
purchased hereunder on the terms set forth in the Offering Memorandum, as
amended or supplemented, solely to (i) persons whom the Initial Purchaser
reasonably believe to be "qualified institutional buyers" as defined in Rule
144A under the Act ("QIBs") and (ii) to persons permitted to purchase the
Securities in offshore transactions in reliance upon Regulation S under the
Act (each, a "Regulation S Purchaser") (such persons specified in clauses (i)
and (ii) being referred to herein as the "Eligible Purchasers").
Holders (including subsequent transferees) of the
Securities will have the registration rights set forth in the registration
rights agreement (the "Registration Rights Agreement"), to be dated the
Closing Date, in substantially the form of Exhibit A hereto, for so long as
such Securities constitute "Transfer Restricted Securities" (as defined in
the Registration Rights Agreement). Pursuant to the Registration Rights
Agreement, the Company will agree to file with the Securities and Exchange
Commission (the "Commission") under the circumstances set forth therein, a
registration statement (the "Registration Statement") relating to the
Securities and to use its commercially reasonable efforts to cause such
Registration Statements to be declared and remain effective and usable for
the periods specified in the Registration Rights Agreement. This Agreement,
the Indenture, the Securities, and the Registration Rights Agreement are
hereinafter sometimes referred to collectively as the "Operative Documents."
3. DELIVERY AND PAYMENT. Delivery to you of and payment for
the Securities shall be made at 9:00 A.M., New York City time, on May 21,
1998 (such time and date being referred to as the "Closing Date"), at the
offices of DLJ at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other
place as you shall reasonably designate.
The Securities in definitive form shall be registered in
such names and issued in such denominations as you shall request in writing
not later than two full business days prior to the Closing Date, and shall be
made available to you at the offices of DLJ (or at such other place as shall
be acceptable to you) for inspection not later than 10:00 A.M., New York City
time, on the business day next preceding the Closing Date. The Securities
shall be delivered to you on the Closing Date with any transfer taxes payable
upon initial issuance thereof duly paid by the Company, for your respective
accounts against payment of the appropriate Purchase Price by wire transfer
of immediately available funds to an account designated by the Company. The
Closing Date and the location of delivery of, and the form of payment for,
the Securities may be varied by agreement between DLJ and the Company.
4. AGREEMENTS OF THE COMPANY. The Company agrees with each
of you that:
-3-
(a) It will advise DLJ promptly and, if requested by DLJ,
confirm such advice in writing, (i) of the issuance by any state
securities commission of any stop order suspending the qualification
or exemption from qualification of any Securities for offering or sale
in any jurisdiction designated by the Initial Purchasers pursuant to
Section 4(f), or the initiation of any proceeding by any state
securities commission or any other federal or state regulatory
authority for such purpose and (ii) of the happening of any event
during the period referred to in Section 4(e), which makes any
statement of a material fact made in the Preliminary Offering
Memorandum or the Offering Memorandum untrue or which requires the
making of any additions to or changes in the Preliminary Offering
Memorandum or the Offering Memorandum in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The Company shall use its best efforts to prevent the
issuance of any stop order or order suspending the qualification or
exemption of the Securities under any Federal or state securities or
Blue Sky laws, and, if at any time any state securities commission or
other regulatory authority shall issue an order suspending the
qualification or exemption of the Securities under any state securities
or Blue Sky laws, the Company shall use every reasonable effort to
obtain the withdrawal or lifting of such order at the earliest possible
time.
(b) It will furnish the Initial Purchasers and those persons
identified by the Initial Purchasers to the Company, without charge, as
many copies of the Preliminary Offering Memorandum and the Offering
Memorandum, including all documents incorporated by reference therein,
and any amendments or supplements thereto, as the Initial Purchasers
may reasonably request for the time period referred to in Section 4(e).
Subject to the Initial Purchasers' compliance with its representations
and warranties and agreements set forth in Section 6 hereof, the
Company consents to the use of the Preliminary Offering Memorandum and
the Offering Memorandum, including all documents incorporated by
reference therein, and any amendments and supplements thereto required
pursuant hereto, by the Initial Purchasers in connection with Exempt
Resales.
(c) If, during the period referred to in Section 4(e), any
event shall occur as a result of which it becomes necessary to amend or
supplement the Offering Memorandum in order to make the statements
therein, in the light of the circumstances when such Offering
Memorandum is delivered to an Eligible Purchaser, not misleading, or if
it is necessary to amend or supplement the Offering Memorandum to
comply with any law, it will promptly prepare an appropriate amendment
or supplement to the Offering Memorandum so that the statements in the
Offering Memorandum, as so amended or supplemented, will not, in the
light of the circumstances existing as of the date the Offering
Memorandum is so delivered, be misleading, and will comply with
applicable law, and will promptly notify you of such event and
amendment or supplement and furnish to you without charge such number
of copies thereof as you may reasonably request.
(d) Whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, it will pay and be
responsible for all reasonable costs, charges, expenses, fees and taxes
incurred in connection with or incident to (i) the preparation,
printing, filing, distribution and delivery of the Offering Memorandum,
the Preliminary Offering Memorandum and all amendments and supplements
thereto, (ii) the issuance and delivery of the Securities, (iii) the
printing and delivery of this Agreement, the Indentures and all other
agreements, memoranda, reports, correspondence and other documents
printed, distributed and delivered in connection with the offering of
the Securities, (iv) the registration or qualification of the
Securities for offer and sale under the securities or Blue Sky laws of
the jurisdictions referred to in paragraph (f) below (including, in
each case, the reasonable fees and disbursements of counsel relating to
such registration or qualification and memoranda relating thereto and
any filing fees in connection therewith), (v) furnishing such copies of
the Offering Memorandum, the Preliminary Offering Memorandum, and all
amendments and supplements to any of them, including any document
incorporated by reference therein, as may be reasonably requested by
the Initial Purchasers or by dealers to whom Securities may be sold,
(vi) any filing with the National Association of Securities Dealers,
Inc. (the "NASD") in connection with the offering of the Securities
(including, without limitation, any filing fees in connection therewith
but excluding the fees of Xxxxxxxx & Xxxxxxxx, legal counsel to the
Underwriters ("Initial Purchasers' Counsel")), (vii) the application
for quotation of the Securities in the National Association of
Securities Dealers, Inc. ("NASD")
- 4 -
Automated Quotation System - PORTAL ("PORTAL"), (viii) the rating of
the Securities by investment rating agencies, (ix) any "qualified
independent underwriter" as required by Rule 2720 of the NASD
(including fees and disbursements of counsel for such qualified
independent underwriter) and (x) the performance by the Company of its
other obligations under this Agreement, including (without limitation)
the fees of the Trustees, the cost of their respective personnel
and other internal costs, the cost of printing and engraving the
certificates representing the Securities, and all expenses incident
to the sale and delivery of the Securities to the Initial Purchasers.
(e) During such period as in the reasonable judgment of the
Initial Purchasers an Offering Memorandum is required (or would be
required if the sales were registered under the Securities Act) to be
delivered in connection with Exempt Resales by the Initial Purchasers,
it will not make any amendment or supplement to the Offering Memorandum
(other than any document required to be filed under the Securities
Exchange Act of 1934, as amended, including the rules and regulations
thereunder (collectively, the "Exchange Act") that upon filing is
deemed to be incorporated by reference therein) of which the Initial
Purchasers shall not previously have been advised and provided a copy
prior to the filing thereof or to which the Initial Purchasers shall
reasonably object unless in the opinion of legal counsel to the Company
such amendment or supplement is required by law to be filed; it will
furnish to you at or prior to the filing thereof a copy of any document
that upon filing is deemed to be incorporated by reference in the
Offering Memorandum; and it will prepare, promptly upon the Initial
Purchasers' reasonable request, any amendment or supplement to the
Offering Memorandum which may be necessary or advisable in connection
with such Exempt Resales and to which the Company shall not reasonably
object.
(f) Prior to the sale of all Securities pursuant to Exempt
Resales as contemplated hereby, it will cooperate with the Initial
Purchasers and counsel to the Initial Purchasers in connection with the
registration or qualification of the Securities for offer and sale to
the Initial Purchasers and pursuant to Exempt Resales under the
securities or Blue Sky laws of such United States jurisdictions as the
Initial Purchasers may request. The Company will continue such
qualification in effect so long as required by law for Exempt Resales
and will file such consents to service of process or other documents as
may be necessary in order to effect such registration or qualification
(PROVIDED, that the Company shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified
nor to take any action that would subject it to general consent to
service of process in any jurisdiction in which it is not now so
subject).
(g) So long as any of the Securities remain outstanding and
during any period in which the Company is not subject to Section 13 or
15(d) of the Exchange Act, it will make available to any holder of
Securities in connection with any sale thereof and any prospective
purchaser of such Securities from such holder, the information ("Rule
144A Information") required by Rule 144A(d)(4) under the Act.
(h) It will file timely all reports and any definitive proxy
or information statement required to be filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act and it will use its best efforts to effect the inclusion
of the Securities in PORTAL and to maintain the listing of the
Securities on PORTAL for so long as the Securities are outstanding.
(i) To the extent permitted by law, it will not voluntarily
claim, and will actively resist any attempts to claim, the benefit of
any usury laws against the holders of the Securities.
(j) It will use the proceeds from the sale of the Securities
in the manner described in the Offering Memorandum under the caption
"Use of Proceeds."
(k) During the period beginning on the date of this Agreement
and continuing to and including the Closing Date, it will not offer,
sell, contract to sell or otherwise dispose of any debt securities of
the Company or warrants, rights, or options to purchase debt securities
of the Company (other than (i) the Securities, (ii) up
- 5 -
to an additional $10 million principal amount of 8__% Senior
Subordinated Notes due 2008 and (iii) commercial paper issued in the
ordinary course of business), without your prior written consent.
(l) It will use its best efforts to do and perform all things
required to be done and performed under this Agreement by it prior to
or after the Closing Date and will use its reasonable best efforts to
satisfy all conditions precedent on its part to be satisfied prior to
the delivery of the Securities.
5. REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to each Initial Purchaser that:
(a) The Preliminary Offering Memorandum and the Offering
Memorandum do not, and any supplement or amendment to them will not,
contain any untrue statement of a material fact or omit to state any
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, except that the representations and
warranties contained in this paragraph (a) shall not apply to
statements in or omissions from the Preliminary Offering Memorandum or
the Offering Memorandum (or any supplement or amendment thereto) based
upon information relating to the Initial Purchasers furnished to the
Company in writing by the Initial Purchasers expressly for use therein.
No stop order preventing the use of the Preliminary Offering Memorandum
or the Offering Memorandum, or any amendment or supplement thereto, or
any order asserting that any of the transactions contemplated by this
Agreement are subject to the registration requirements of the Act, has
been issued.
(b) The documents incorporated by reference in the Offering
Memorandum, the Preliminary Offering Memorandum or any amendment or
supplement thereto, when they were or are filed with the Commission
under the Exchange Act, as the case may be, conformed or will conform
in all material respects with the requirements of the Exchange Act.
(c) No action has been taken and no statute, rule, regulation
or order has been enacted, adopted or issued by any United States
Federal or state governmental body, agency or official which prevents
the issuance of the Securities, prevents or suspends the use of any
Preliminary Offering Memorandum or Offering Memorandum or suspends the
sale of the Securities in any jurisdiction referred to in Section 4(f)
hereof; no injunction, restraining order, or order of any nature by any
Federal or state court has been issued with respect to the Company or
any of its subsidiaries which would prevent the issuance or sale of the
Securities, or prevent or suspend the use of any Preliminary Offering
Memorandum or Offering Memorandum in any jurisdiction referred to in
Section 4(f) hereof.
(d) The capitalization table set forth in the Offering
Memorandum under the caption "Capitalization" identifies in reasonable
detail all outstanding short-term and long-term indebtedness and
shareholders' equity of the Company and its subsidiaries, prior to and
after giving PRO FORMA effect to the consummation of the offering of
the Securities and the application of the net proceeds therefrom on the
terms described in the Offering Memorandum.
(e) The Indentures have been duly authorized by the Company
and, when duly executed and delivered in accordance with their terms,
will be valid and legally binding agreements of the Company,
enforceable against the Company in accordance with their terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws affecting creditors' rights and
remedies generally and to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity) and
except to the extent that a waiver of rights under any usury laws may
be unenforceable. On the Closing Date, the Indentures will conform in
all material respects to the requirements of the Trust Indenture Act of
1939, as amended (the "TIA" or "Trust Indenture Act"), and the rules
and regulations of the Commission applicable to an indenture that is
qualified thereunder.
- 6 -
(f) The Securities have been duly authorized by the Company
and, when executed and delivered by the Company and authenticated by
the applicable Trustee in accordance with the applicable Indenture and
paid for in accordance with the terms of this Agreement, will
constitute legal, valid and binding obligations of the Company,
enforceable against the Company according to their terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws affecting creditors' rights and
remedies generally and to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity) and
except to the extent that a waiver of rights under any usury laws may
be unenforceable, will be entitled to the benefits of the applicable
Indenture and will conform in all material respects to the description
thereof in the Offering Memorandum.
(g) This Agreement has been duly authorized and validly
executed and delivered by the Company and constitutes a valid and
legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and similar
laws affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except to the extent that rights to
indemnification and contribution with respect to liability in
connection with Federal or state securities laws may be unenforceable
under such laws or the policies underlying such laws and except to the
extent that a waiver of rights under any usury laws may be
unenforceable.
(h) The Registration Rights Agreement has been duly authorized
by the Company and, on the Closing Date, will have been duly executed
and delivered by the Company. When the Registration Rights Agreement
has been duly executed and delivered, the Registration Rights Agreement
will be a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability. On the Closing Date,
the Registration Rights Agreement will conform in all material respects
to the description thereof in the Offering Memorandum.
(i) The execution and delivery of this Agreement and the
Indentures and issuance and sale of the Securities by the Company, the
execution and delivery of each of the other Operative Documents by the
Company, the performance by the Company of this Agreement, the
Indentures and the other Operative Documents and the consummation of
the transactions contemplated by this Agreement and the other Operative
Documents will not conflict with or result in a breach or violation of
any of the respective charters or bylaws of the Company or any of its
subsidiaries (each, a "Subsidiary" and collectively, the
"Subsidiaries") or any of the terms or provisions of, or constitute a
default or cause an acceleration of any obligation under or result in
the imposition or creation of (or the obligation to create or impose)
any security interest, mortgage, pledge, claim, lien, encumbrance or
adverse interest of any nature (each, a "Lien") with respect to, any of
the Operative Documents or any other obligation, bond, agreement, note,
debenture, or other evidence of indebtedness, or any indenture,
mortgage, deed of trust or other agreement, lease or instrument
(collectively, "Agreements") to which the Company or any of the
Subsidiaries is a party or by which it or any of them is bound, or to
which any properties of the Company or any of the Subsidiaries is or
may be subject, or any order of any court or governmental agency, body
or official having jurisdiction over the Company or any of the
Subsidiaries or any of their properties, or violate or conflict with
any statute, rule or regulation or administrative regulation or decree
or court decree applicable to the Company or any of the Subsidiaries,
or any of their respective assets or properties, where, in any such
instance, such conflict, breach, violation, default, acceleration of
indebtedness or Lien would have, singly or in the aggregate, a material
adverse effect on the business, financial condition, results of
operations or prospects of the Company and the Subsidiaries, taken as a
whole (a "Material Adverse Effect").
- 7 -
(j) No authorization, approval, consent or order of, or filing
with, any court or governmental body, agency or official is necessary
in connection with the transactions contemplated by this Agreement,
except such as may be required by the NASD or have been obtained and
made under the Act, the Exchange Act, the TIA, state securities or Blue
Sky laws or regulations.
(k) The Company has been duly organized, is validly existing
as a corporation in good standing under the laws of the State of Nevada
and has the requisite power and authority to carry on its business as
it is currently being conducted, to own, lease and operate its
properties and to authorize the offering of the Securities, to execute,
deliver and perform this Agreement and to issue, sell and deliver the
Securities, and is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction where the
operation, ownership or leasing of property or the conduct of its
business requires such qualification and where failure to be so
qualified or in good standing would have a Material Adverse Effect.
Each of the Subsidiaries of the Company that (i) directly or indirectly
owns or leases any interest in any Hospital (as defined in the Offering
Memorandum) or (ii) is otherwise material to the Company and the
Subsidiaries, taken as a whole (collectively, the "Significant
Subsidiaries"), has been duly organized, is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation and has the requisite power and authority to carry on
its business as it is currently being conducted and to own, lease and
operate its properties and each is duly qualified and is in good
standing as a foreign corporation authorized to do business in each
jurisdiction where the operation, ownership or leasing of property or
the conduct of its business requires such qualifications and where
failure to have such power and authority or to be so qualified or in
good standing would have a Material Adverse Effect.
(l) Except as otherwise disclosed in the Offering Memorandum,
all of the issued and outstanding shares of capital stock of, or other
ownership interests in, each of the Significant Subsidiaries that are
owned directly or indirectly by the Company, have been duly authorized
and validly issued, and, except as otherwise disclosed in the Offering
Memorandum, all of the shares of capital stock of, or other ownership
interests in, each of the Significant Subsidiaries are owned, directly
or through subsidiaries, by the Company. All such shares of capital
stock are fully paid and nonassessable, and are owned free and clear of
any Lien, and, except as disclosed in a certificate or opinion
delivered to the Initial Purchasers, there are no outstanding
subscriptions, rights, warrants, options, calls, convertible or
exchangeable securities, commitments of sale, or Liens related to or
entitling any person to purchase or otherwise to acquire any shares of
the capital stock of, or other ownership interest in, any of the
Subsidiaries.
(m) Neither the Company nor the Significant Subsidiaries is in
violation of its respective charter or bylaws and neither the Company
nor the Subsidiaries is in default in the performance of any
obligation, bond, agreement, debenture, note or any other evidence of
indebtedness, or any indenture, mortgage, deed of trust or other
contract, lease or other instrument to which the Company or any of the
Subsidiaries is a party or by which any of them is bound, or to which
any of the property or assets of the Company or any of the Subsidiaries
is subject, except as would not have, singly or in the aggregate, a
Material Adverse Effect.
(n) Except as disclosed in the Offering Memorandum, there is
no action, suit, proceeding or investigation before or by any court,
governmental agency or body, arbitration board or tribunal, or
governmental or private accrediting body, domestic or foreign, pending
against or affecting the Company or any of the Subsidiaries, or any of
their respective assets or properties, which is required to be
disclosed in the Offering Memorandum, or in which there is a reasonable
possibility of adverse decisions which in the aggregate could
reasonably be expected to have a Material Adverse Effect, or which
might materially and adversely affect the Company's or any of its
Subsidiaries' performance of its obligations, as applicable, pursuant
to this Agreement (including, without limitation, the issuance of the
Securities), the Operative Documents or the transactions contemplated
hereby and thereby, and to the best of the Company's knowledge, after
due inquiry, no such action, suit, or proceeding is contemplated or
threatened.
- 8 -
Except as disclosed in the Offering Memorandum, neither
the Company nor the Subsidiaries is subject to any judgment, order or
decree of any court, governmental authority or arbitration board or
tribunal which has had or which can reasonably be expected to have, a
Material Adverse Effect.
(o) The firms of accountants that have certified or shall
certify the applicable consolidated financial statements and supporting
schedules and the notes thereto of the Company incorporated by
reference in the Preliminary Offering Memorandum and the Offering
Memorandum are, to the best of the Company's knowledge, independent
public accountants with respect to the Company and its Subsidiaries, as
required by the Act. The consolidated financial statements, together
with related schedules and notes, set forth or incorporated by
reference in the Preliminary Offering Memorandum and the Offering
Memorandum, comply as to form in all material respects with the
requirements of the Act and fairly present the consolidated financial
position of the Company and its Subsidiaries at the respective dates
indicated and the results of their operations and their cash flows for
the respective periods indicated, in accordance with generally accepted
accounting principles in the United States of America ("GAAP")
consistently applied throughout such periods and in accordance with
Regulation S-X. The Company's ratio of earnings to fixed charges
(actual and PRO FORMA) included in the Offering Memorandum under the
relevant captions "Prospectus Summary--Summary Financial Information"
have been calculated in compliance with Item 503(d) of the Commission's
Regulation S-K. The other financial and statistical information and
data of the Company included or incorporated by reference in the
Preliminary Offering Memorandum and the Offering Memorandum are in all
material respects accurately presented and prepared on a basis
consistent with the books and records of the Company.
(p) Except as contemplated by the Offering Memorandum,
subsequent to the respective dates as of which information is presented
in the Offering Memorandum and up to the Closing Date (i) neither the
Company nor the Subsidiaries has incurred any liabilities or
obligations, direct or contingent, or entered into any transaction not
in the ordinary course of business, which could reasonably be expected
to have a Material Adverse Effect, (ii) there has been no decision or
judgment in the nature of litigation or arbitration that could
reasonably be expected to have a Material Adverse Effect, (iii) there
has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock and (iv) there has not
been any material adverse change, or any development which could
involve a material adverse change, in the business, financial
condition, results of operations or prospects of the Company and the
Subsidiaries, taken as a whole (any of the items set forth in clauses
(i), (ii), (iii) or (iv) above, a "Material Adverse Change").
(q) (i) Except as described in the Offering Memorandum or as
could not reasonably be expected to have a Material Adverse Effect,
each of the Company and the Subsidiaries has all certificates,
consents, exemptions, orders, permits, licenses, authorizations,
accreditations or other approvals or rights (each, an "Authorization")
of and from, and has made all declarations and filings with, all
Federal, state, local and other governmental authorities, all
self-regulatory organizations, all governmental and private accrediting
bodies and all courts and other tribunals, necessary or required to
own, lease, license, and use its properties and assets and to conduct
its business in the manner described in the Offering Memorandum, (ii)
all such Authorizations are valid and in full force and effect, except
as could not reasonably be expected to have, singly or in the
aggregate, a Material Adverse Effect, (iii) the Company and the
Subsidiaries are in compliance with the terms and conditions of all
such Authorizations and with the rules and regulations of the
regulatory authorities and governing bodies having jurisdiction with
respect thereto except as could not reasonably be expected to have a
Material Adverse Effect and (iv) none of the Company or the
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Authorization.
(r) None of the Company or any agent acting on its behalf has
taken or will take any action that is reasonably likely to cause the
issuance or sale of the Securities to violate Regulation T, U, or X of
the Board of Governors of the Federal Reserve System, in each case as
in effect, on the date hereof.
- 9 -
(s) None of the Company or any of the Significant Subsidiaries
is (i) an "investment company" or a company "controlled" by an
investment company within the meaning of the Investment Company Act of
1940, as amended, or (ii) a "holding company" or a "subsidiary company"
of a holding company, or an "affiliate" thereof within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
(t) Each certificate signed by any officer of the Company and
delivered to the Initial Purchasers or the Initial Purchasers' Counsel
shall be deemed to be a representation and warranty by the Company to
each Initial Purchaser as to the matters covered thereby.
(u) The Company has delivered to the Initial Purchasers a true
and correct copy of each of the Operative Documents that have been
executed and delivered prior to the date of this Agreement and each
other Operative Document in the form substantially as it will be
executed and delivered on or prior to the Closing Date, together with
all related agreements and all schedules and exhibits thereto, and
there have been no amendments, alterations, modifications or waivers of
any of the provisions of any of the Operative Documents since their
date of execution or from the form in which it has been delivered to
the Initial Purchasers; there exists as of the date hereof (after
giving effect to the transactions contemplated by the Operative
Documents) no event or condition that would constitute a default or an
event of default (in each case as defined in each of the Operative
Documents) under any of the Operative Documents which would reasonably
be expected to result in a Material Adverse Effect.
(v) Each of the Preliminary Offering Memorandum and the
Offering Memorandum, as of its date, contains all the information
specified in, and meeting the requirements of, Rule 144A(d)(4) under
the Act.
(w) When the Securities are issued and delivered pursuant to
this Agreement, the Securities will not be of the same class (within
the meaning of Rule 144A under the Act) as any security of the Company
that is listed on a national securities exchange registered under
Section 6 of the Exchange Act or that is quoted in the United States
automated inter-dealer quotation system.
(x) No form of general solicitation or general advertising (as
defined in Regulation D under the Act) was used by the Company, or any
of its representatives (other than the Initial Purchasers, as to whom
the Company makes no representation) in connection with the offer and
sale of the Securities contemplated hereby, including, but not limited
to, articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by
any general solicitation or general advertising. No securities of the
same class as the Securities have been issued and sold by the Company
within the six-month period immediately prior to the date hereof.
(y) Prior to the effectiveness of any Registration Statement,
the Indentures are not required to be qualified under the TIA.
(z) Neither the Company, nor any of its respective affiliates
or any person acting on its or their behalf (other than the Initial
Purchasers, as to whom the Company makes no representation) has engaged
or will engage in any directed selling efforts within the meaning of
Regulation S under the Act ("Regulation S") with respect to the
Securities.
(aa) The Securities offered and sold in reliance of Regulation
S have been and will be offered and sold only in offshore transactions,
assuming the accuracy of the Initial Purchasers' representations and
warranties and agreements set forth in Section 6 hereof.
(bb) The sale of the Securities pursuant to Regulation S is
not part of a plan or scheme to evade the registration provisions of
the Act.
- 10 -
(cc) No registration of the Securities under the Act is
required for the sale of the Securities to the Initial Purchasers as
contemplated hereby or for the Exempt Resales assuming the accuracy of
the Initial Purchasers' representations and warranties and agreements
set forth in Section 6 hereof.
6. INITIAL PURCHASERS' REPRESENTATIONS AND WARRANTIES. Each
Initial Purchaser, severally and not jointly, represents and warrants to, and
agrees with, the Company:
(a) Such Initial Purchaser is a QIB with such knowledge and
experience in financial and business matters as is necessary in order
to evaluate the merits and risks of an investment in the Securities.
(b) Such Initial Purchaser (A) is not acquiring the Securities
with a view to any distribution thereof or with any present intention
of offering or selling any of the Securities in a transaction that
would violate the Act or the securities laws of any state of the United
States or any other applicable jurisdiction and (B) will be reoffering
and reselling the Securities only to (x) QIBs in reliance on the
exemption from the registration requirements of the Act provided by
Rule 144A and (y) in offshore transactions in reliance upon
Regulation S.
(c) Such Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D
under the Act) has been or will be used by such Initial Purchaser or
any of its representatives in connection with the offer and sale of the
Securities pursuant hereto, including, but not limited to, articles,
notices or other communications published in any newspaper, magazine or
similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation
or general advertising.
(d) Such Initial Purchaser agrees that, in connection with
Exempt Resales, such Initial Purchaser will solicit offers to buy the
Securities only from, and will offer to sell the Securities only to,
Eligible Purchasers. Each Initial Purchaser further agrees that it will
offer to sell the Securities only to, and will solicit offers to buy
the Securities only from (A) Eligible Purchasers that such Initial
Purchaser reasonably believes are QIBs and (B) Regulation S Purchasers,
in each case, that agree that (x) the Securities purchased by them may
be resold, pledged, or otherwise transferred within the time period
referred to under Rule 144(k) (taking into account the provisions of
Rule 144(d) under the Act, if applicable) under the Act, as in effect
on the date of the transfer of such Securities, only (I) to the Company
or any of its subsidiaries, (II) to a person whom the seller reasonably
believes is a QIB purchasing for its own account or for the account of
a QIB in a transaction meeting the requirements of Rule 144A under the
Act, (III) in an offshore transaction (as defined in Rule 902 under the
Act) meeting the requirements of Rule 903 and Rule 904 of the Act, (IV)
in a transaction meeting the requirements of Rule 144 under the Act,
(V) in accordance with another exemption from the registration
requirements of the Act (and based upon an opinion of counsel
acceptable to the Company) or (VI) pursuant to an effective
registration statement and, in each case, in accordance with the
applicable securities laws of any state of the United States or any
other applicable jurisdiction and (y) they will deliver to each person
to whom such Securities or an interest therein is transferred a notice
substantially to the effect of the foregoing.
(e) Such Initial Purchaser and its affiliates or any person
acting on its behalf have not engaged and will not engage in any
directed selling efforts within the meaning of Regulation S with
respect to the Securities.
(f) The Securities offered and sold by such Initial Purchaser
pursuant hereto in reliance on Regulation S have been and will be
offered and sold only in offshore transactions.
(g) The sale of the Securities offered and sold by such
Initial Purchaser pursuant hereto in reliance on Regulation S is not
part of a plan or scheme to evade the registration provisions of the
Act.
- 11 -
(h) Such Initial Purchaser further represents and agrees that
(i) it has not offered or sold and will not offer or sell any
Securities to persons in the United Kingdom prior to the expiration of
the period of six months from the issue date of the Securities, except
to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent)
for the purposes of their business or otherwise in circumstances that
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, (ii) it has complied and will comply with all
applicable provisions of the Financial Services Xxx 0000 with respect
to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom and (iii) it has only issued or
passed on and will only issue or pass on in the United Kingdom any
document received by it in connection with the issuance of the
Securities to a person who is of a kind described in Article 11(3) of
the Financial Services Act of 1986 (Investment Advertisements)
(Exemptions) Order 1996 or is a person to whom the document may
otherwise lawfully be issued or passed on.
(i) Such Initial Purchaser agrees that it will not offer, sell
or deliver any of the Securities in any jurisdiction outside the United
States except under circumstances that will result in compliance with
the applicable laws thereof, and that it will take at its own expense
whatever action is required to permit its purchase and resale of the
Securities in such jurisdictions. Such Initial Purchaser understands
that no action has been taken to permit a public offering in any
jurisdiction outside the United States where action would be required
for such purpose.
Each Initial Purchaser acknowledges that the Company, for
purposes of the opinions to be delivered to each Initial Purchaser pursuant to
Section 8 hereof, counsel to the Company and counsel to the Initial Purchasers
will rely upon the accuracy and truth of the foregoing representations and each
Initial Purchaser hereby consents to such reliance.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless (i) each
of the Initial Purchasers and their respective affiliates, (ii) each person, if
any, who controls (within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act) any of the Initial Purchasers or any of their respective
affiliates (any of the persons referred to in this clause (ii) being hereinafter
referred to as a "Controlling Person"), and (iii) each of the respective
officers, directors, partners, employees, representatives and agents of any of
the Initial Purchasers or any Controlling Person, and each of their respective
officers, directors, partners, employees, representatives and agents (any person
referred to in clause (i), (ii) or (iii) of this Section 7(a) may hereinafter be
referred to as an "Indemnified Person") to the fullest extent lawful, from and
against any and all losses, claims, damages, judgments, actions, costs,
assessments, expenses and other liabilities (collectively, "Liabilities"),
including without limitation and as incurred, reimbursement of all reasonable
costs of investigating, preparing, pursuing or defending any claim or action, or
any investigation or proceeding by any foreign, Federal, state or local
authority, regulatory body, administrative agency, court or other governmental
or quasi-governmental body, commenced or threatened, including the reasonable
fees and expenses of counsel to any Indemnified Person, to the extent such
Liabilities are directly or indirectly caused by, related to, based upon or
arising out of, or in connection with, any untrue statement or alleged untrue
statement of a material fact contained in the Offering Memorandum (or any
supplement or amendment thereto), the Preliminary Offering Memorandum or any
Rule 144A Information provided by the Company to any holder or prospective
purchaser of Securities pursuant to Section 4(i), or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
Liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission that is (x) made in reliance upon and in conformity
with information relating to any of the Initial Purchasers furnished in writing
to the Company by or on behalf of an Initial Purchaser through DLJ expressly for
use in the Offering Memorandum (or any amendment or supplement thereto), the
Preliminary Offering Memorandum or any Rule 144A Information provided by the
Company to any holder or prospective purchaser of Securities pursuant to Section
4(g), or (y) with respect to the Initial Purchaser from whom the person
asserting the Liabilities purchased Securities, made in any Preliminary Offering
Memorandum if a copy of the Offering Memorandum
- 12 -
(as amended or supplemented, if the Company shall have furnished the Initial
Purchasers with such amendments or supplements thereto on a timely basis) was
not delivered by or on behalf of such Initial Purchaser to the person
asserting the Liabilities, if required by law to have been so delivered by
the Initial Purchaser seeking indemnification, at or prior to the written
confirmation of the sale of the Securities, and it shall be determined by a
court of competent jurisdiction or binding mediation or arbitration tribunal,
in a judgment or determination not subject to appeal or review, that the
Offering Memorandum (as so amended or supplemented) would have corrected such
untrue statement or omission in all material respects. The foregoing
indemnity shall be in addition to any liability that the Company might
otherwise have to any of the Initial Purchasers and such other Indemnified
Persons. The Company shall notify you promptly after becoming aware of the
institution, threat or assertion of any claim, proceeding (including any
governmental investigation) or litigation in connection with the matters
addressed by this Agreement which involves the Company or an Indemnified
Person.
(b) In case any action or proceeding (for all purposes of this
Section 7, including any governmental or quasi-governmental investigation) shall
be brought or asserted against any of the Indemnified Persons with respect to
which indemnity under this Section 7 may be sought against the Company, such
Indemnified Person promptly shall notify the Company in writing and the Company
shall assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Person and payment of all reasonable fees and
expenses; PROVIDED, that the delay or failure to give such notice shall not
relieve the Company from any liability that it may have on account of the
indemnity under this Section 7, except to the extent that such delay or omission
materially adversely affects the ability of the Company to defend or assume the
defense of such action or proceeding. Upon receiving such notice, the Company
shall be entitled to participate in any such action or proceeding and/or to
assume, at its sole expense, the defense thereof, with counsel reasonably
satisfactory to such Indemnified Person (who shall not, except with the consent
of the Indemnified Person to be represented, be counsel to the Company or any of
the Subsidiaries) and, after written notice from the Company to such Indemnified
Person of its election so to assume the defense thereof promptly after receipt
of the notice from the Indemnified Person of such action or proceeding, the
Company shall not be liable to such Indemnified Person hereunder for legal
expenses of other counsel subsequently incurred by such Indemnified Person in
connection with the defense thereof, other than reasonable costs of
investigation, unless (i) the Company agrees in writing to pay such fees and
expenses, or (ii) the Company fails promptly to assume such defense or fails to
employ counsel reasonably satisfactory to such Indemnified Person, or (iii) the
named parties to any such action or proceeding (including any impleaded parties)
include both such Indemnified Person and the Company or an affiliate of the
Company, and that Indemnified Person shall have been advised in writing by
counsel, with a copy of such writing to the Company, that either (x) there may
be one or more legal defenses available to such Indemnified Person that are
different from or additional to those available to the Company or such affiliate
or (y) a conflict may exist between such Indemnified Person and the Company or
such affiliate. In the event of any of clause (i), (ii) and (iii) of the
immediately preceding sentence, the Company shall not have the right to assume
the defense thereof on behalf of the Indemnified Person and such Indemnified
Person shall have the right to employ its own counsel (who shall be reasonably
acceptable to the Company and shall not, except with the Company's consent, be
counsel to the Company) in any such action and the reasonable fees and expenses
of such counsel shall be paid, as incurred, by the Company, subject to repayment
to the Company if it is ultimately determined that an Indemnified Person is not
entitled to indemnification hereunder, it being understood, however, that the
Company shall not, in connection with any one such action or proceeding or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) for all of the Indemnified Persons, which firm shall be
designated in writing by DLJ. The Company shall not be liable for any settlement
of any such action or proceeding effected without the Company's written consent,
which consent may not be unreasonably withheld, but if settled with the written
consent of the Company, the Company agrees to indemnify and hold harmless any
Indemnified Person from and against any loss or liability incurred in such
settlement. The Company shall not, without the prior written consent of each
Indemnified Person, which consent shall not be unreasonably withheld settle,
compromise or consent to the entry of any judgment in or otherwise seek to
terminate any pending or threatened action, claim, suit, investigation or other
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification or contribution could have been sought hereunder
- 13 -
by such Indemnified Person, unless such settlement, compromise, consent or
termination includes an unconditional release of each Indemnified Person from
all liability on claims that are the subject matter of such proceeding.
(c) Each of the Initial Purchasers agrees, severally and
not jointly, to indemnify and hold harmless the Company, its directors, its
officers, and any person controlling (within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act) the Company, to the same extent as the
foregoing indemnity from the Company to each of the Indemnified Persons, but
only with respect to claims and actions based on information relating to such
Initial Purchaser furnished in writing by or on behalf of such Initial
Purchaser through DLJ expressly for use in the Offering Memorandum, the
Preliminary Offering Memorandum or any Rule 144A Information provided by the
Company to any holder or prospective purchaser of Securities pursuant to
Section 4(g), as applicable. In case any action shall be brought against the
Company, any of its directors, any such officer, or any such controlling
person based on the Offering Memorandum, the Preliminary Offering Memorandum
or any Rule 144A Information provided by the Company to any holder or
prospective purchaser of Securities pursuant to Section 4(g) in respect of
which indemnity is sought against any Initial Purchaser pursuant to the
foregoing sentence, the Initial Purchaser shall have the rights and duties
given to the Company (except that if an Initial Purchaser shall have assumed
the defense thereof, the Company shall not be required to do so, but may
employ separate counsel therein and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the
Company), and the Company, its directors, any such officers, and each such
controlling person shall have the rights and duties given to the Indemnified
Person by Section 7(b) above.
(d) If the indemnification provided for in this Section 7
is finally determined by a court of competent jurisdiction to be unavailable
to an Indemnified Person in respect of any Liabilities referred to herein,
then the Company, in lieu of indemnifying such Indemnified Person, shall
contribute to the amount paid or payable by such Indemnified Person as a
result of such Liabilities: (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Indemnified Person on the other hand from the offering of the Securities, or
(ii) if the allocation provided by clause (i), above, is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i), above, but also the relative
fault of the Company and the Indemnified Person in connection with the
actions, statements or omissions that resulted in such Liabilities, as well
as any other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and any of the Initial Purchasers
(and its related Indemnified Persons), on the other hand, shall be deemed to
be in the same proportion as the total proceeds from the offering (net of
Initial Purchaser's discounts and commissions but before deducting expenses)
received by the Company bear to the total Initial Purchaser's discounts and
commissions received by such Initial Purchaser, in each case as set forth in
the Offering Memorandum. The relative fault of the Company and the Initial
Purchaser shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact related to information supplied by
the Company or the Initial Purchaser and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The indemnity and contribution obligations of the
Company set forth herein shall be in addition to any liability or obligation
the Company may otherwise have to any Indemnified Person.
The Company and the Initial Purchasers agree that it would
not be just and equitable if contribution pursuant to this Section 7(d) were
determined by PRO RATA allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an Indemnified
Party as a result of the Liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Xxxxxxx 0, xxxx of
the Initial Purchasers (or any of their related Indemnified Persons referred
to in Section 7 above) shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the total underwriting discount
applicable to the Securities purchased by such underwriter exceeds the amount
of any damages or liabilities which such Initial Purchaser (and its related
Indemnified Persons referred to in Section 7 above) has otherwise been
required to pay or incur by reason of such untrue or alleged untrue statement
or omission or alleged omission or other indemnified action
- 14 -
or proceeding. Notwithstanding anything to the contrary contained herein, 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'
obligations to contribute pursuant to this Section 7(d) are several in
proportion to the respective aggregate principal amount of Securities
purchased by each of the underwriters hereunder and not joint.
8. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The
respective obligations of the several Initial Purchasers to purchase any
Securities under this Agreement are subject to the satisfaction or waiver by the
several underwriters of each of the following conditions on the Closing Date:
(a) All the representations and warranties of the Company
contained or incorporated by reference in this Agreement shall be true
and correct on the Closing Date after giving effect to the transactions
contemplated by the Operative Documents, with the same force and effect
as if made on and as of the Closing Date, unless another date is
specified therein. The Company and its Subsidiaries shall have
performed or complied with all of their obligations and agreements
herein contained and required to be performed or complied with by them
at or prior to the Closing Date.
(b) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency, body or official which would, as of the Closing
Date, prevent the issuance of the Securities; and no injunction,
restraining order or order of any nature by any Federal or state court
shall have been issued as of the Closing Date which would prevent the
issuance of the Securities. Subsequent to the execution and delivery of
this Agreement and prior to the Closing Date, there shall not have been
any downgrading, nor shall any notice have been given of any intended
or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) of the Act.
(c) (i) Since the earlier of the date hereof or the dates as
of which information is given in the Offering Memorandum, there shall
not have been any Material Adverse Change, (ii) since the date of the
latest balance sheet included in the Offering Memorandum, there shall
not have been any material adverse change, or development involving a
prospective material adverse change, in the capital stock or debt, of
the Company and the Subsidiaries, taken as a whole, and (iii) none of
the Company or any of the Subsidiaries shall have any liability or
obligation, direct or contingent, that is material to the Company and
the Subsidiaries, taken as a whole, and which is not disclosed in the
Offering Memorandum as of the date hereof.
(d) You shall have received a certificate of the Company,
dated the Closing Date, executed on behalf of the Company, by an
executive officer and a financial officer of the Company satisfactory
to you confirming, as of the Closing Date, the matters set forth in
paragraphs (a), (b), (c) and (j) of this Section 8.
(e) On the Closing Date, you shall have received:
(l) an opinion (reasonably satisfactory to you and
your counsel), dated the Closing Date, of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, counsel for the Company ("Skadden,
Arps"), to the effect that:
(i) each document filed pursuant to the
Exchange Act and incorporated by reference in the
Offering Memorandum, at the time it was filed or last
amended, complied as to form in all material respects
to the applicable requirements of the Exchange Act
(except for financial statements, the notes thereto
and related schedules and other financial data
included or incorporated by reference therein or
omitted therefrom, as to which no opinion need be
expressed);
- 15 -
(ii) the Securities have been duly authorized
and executed by the Company and, when authenticated
in accordance with the terms of the Indentures and
delivered to and paid for by the Initial Purchasers
in accordance with the terms of this Agreement, will
be valid and binding obligations of the Company,
enforceable against the Company in accordance with
their respective terms and entitled to the benefits
of the respective Indenture under which they are
being issued, except to the extent that the
enforceability thereof may be limited by
(a) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws in
effect as of the date of the opinion or thereafter
relating to or affecting creditors' rights generally
and (b) general principles of equity (regardless of
whether enforcement is sought in a proceeding at law
or in equity) and except that such counsel need
express no opinion as to the enforceability or effect
of the waiver of rights under any usury laws pursuant
to each of the Indentures;
(iii) each of the Indentures has been duly
authorized, executed and delivered by the Company
and, assuming due authorization, execution and
delivery thereof by the applicable Trustee, is a
valid and binding agreement of the Company,
enforceable against the Company in accordance with
its terms, except to the extent that the
enforceability thereof may be limited by (a)
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws in
effect as of the date of the opinion or thereafter
relating to or affecting creditors' rights generally
and (b) general principles of equity (regardless of
whether enforcement is sought in a proceeding at law
or in equity) and except that such counsel need
express no opinion as to the enforceability or effect
of the waiver of rights under any usury laws pursuant
to each of the Indentures;
(iv) the Securities and the Indentures conform
in all material respects to the descriptions thereof
contained in the Offering Memorandum;
(v) the Company is a corporation existing and
in good standing under the laws of its jurisdiction
of organization;
(vi) the Company is not an "investment company"
within the meaning of the Investment Company Act of
1940, as amended;
(vii) no consent, approval, authorization or
other order of, or filing with, any Federal or New
York executive, legislative, judicial, administrative
or regulatory body, including, without limitation,
the Commission (each, a "Governmental Authority"), is
legally required under any laws, rules and
regulations of the State of New York and the United
States of America that, in the experience of such
counsel, are normally applicable to transactions of
the type contemplated by this Agreement and the
Indentures (provided that no opinion need be
expressed as to the "blue sky" or state securities
laws of any jurisdiction) (collectively, the
"Applicable Laws") for the issuance or sale to the
Initial Purchasers of the Securities as contemplated
by this Agreement;
(viii) the execution and delivery by the Company
of this Agreement and the Indentures and the issuance
and sale of the Securities to you as contemplated
thereby and the performance of its obligations
pursuant to this Agreement and the Indentures (a)
will not conflict with or result in a breach of
violation of any of the terms or provisions of, or
constitute a default under the charter or bylaws of
the Company; and (b) will not conflict with or
violate any Applicable Law or any order or decree of
any Governmental Authorities by which the Company or
any of its Subsidiaries is bound, the existence of
which is actually
-16-
known to such counsel or has been specifically
disclosed to such counsel in writing by the Company;
(ix) the Registration Rights Agreement has been
duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the
Company enforceable against the Company in accordance
with its terms, except as (x) the enforceability
thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally
and (y) rights of acceleration and the availability
of equitable remedies may be limited by equitable
principles of general applicability;
(x) the Indentures comply as to form in all
material respects with the requirements of the TIA,
and the rules and regulations of the Commission
applicable to an indenture that is qualified
thereunder. It is not necessary in connection with
the offer, sale and delivery of the Securities to the
Initial Purchasers in the manner contemplated by this
Agreement or in connection with the Exempt Resales to
qualify the Indentures under the TIA;
(xi) no registration under the Act of the
Securities is required for the sale of the Securities
to the Initial Purchasers as contemplated by this
Agreement or for the Exempt Resales assuming that (i)
each Initial Purchaser is a QIB or a Regulation S
Purchaser, (ii) the accuracy of, and compliance with,
the Initial Purchasers' representations and
agreements contained in Section 6 of this Agreement
and (iii) the accuracy of the representations of the
Company set forth in Sections 4(h) and 5(y), (aa) and
(bb) of this Agreement.
(2) In giving their opinion required by subsection
(e)(l) of this Section 8, such counsel may state that such
opinions are limited to matters governed by the Federal laws
of the United States of America and the laws of the State of
New York.
In addition, such counsel shall state that such
counsel has participated in conferences with officers and
other representatives of the Company, representatives of the
independent public accountants for the Company, your
representatives and your counsel at which the contents of the
Offering Memorandum and related matters were discussed and,
although such counsel is not passing upon, and does not assume
any responsibility for, the accuracy, completeness or fairness
of the statements contained in the Offering Memorandum, on the
basis of the foregoing, no fact has come to the attention of
such counsel that leads it to believe that, as of the date of
the Offering Memorandum or as of the Closing Date, the
Offering Memorandum contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, except that such counsel need not express any
opinion or belief with respect to the financial statements,
schedules and other financial data included or incorporated by
reference in or excluded from the Offering Memorandum.
In rendering the foregoing opinions, Skadden, Arps
may rely as to matters of Nevada law on the opinion of
Xxxxxxxx and Wedge, Nevada counsel to the Company, or such
other counsel as is reasonably satisfactory to the Initial
Purchasers' Counsel.
(3) an opinion (satisfactory to you and Initial
Purchasers' Counsel), dated the Closing Date, of Xxxxx X.
Xxxxx, Esq., Senior Vice President and General Counsel of the
Company, or Xxxxxxx X. Silver, Vice President and Associate
General Counsel of the Company, to the effect that:
(i) the descriptions in the Offering Memorandum
of statutes, legal and governmental proceedings,
contracts and other documents and regulatory matters,
including, without limitation, those described in the
Offering Memorandum under the captions "Risk
- 17 -
Factors--Limits on Reimbursement," "--Extensive
Regulation," "--Health care Reform Legislation" and
in the Company's Annual Report on Form 10-K for the
fiscal year ended May 31, 1997 (the "Form 10-K")
under the captions "Medicare, Medicaid and Other
Revenues" and "Healthcare Reform, Regulation and
Licensing" and in the Company's Form 10-K and
Quarterly Report on Form 10-Q for the quarter ended
February 28, 1997 under the caption "Legal
Proceedings" insofar as such statements constitute
summaries of legal matters, documents or proceedings
referred to therein are accurate in all material
respects and such counsel does not know of any
contracts or documents of a character required to be
described in the Offering Memorandum and not
described therein; it being understood that such
counsel need express no opinion as to the financial
statements, notes or schedules or other financial
data included or incorporated by reference therein;
(ii) each of the Company and its Significant
Subsidiaries has such Authorizations from all
regulatory or governmental officials, bodies and
tribunals as are necessary to own, lease and operate
its respective properties and to conduct its business
in the manner described in the Offering Memorandum,
except as could not reasonably be expected to have,
singly or in the aggregate, a material adverse effect
on the business, financial condition or results of
operations of the Company and its Subsidiaries, taken
as a whole;
(iii) to the best of such counsel's knowledge,
there is no current, pending or threatened action,
suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving
the Company or any of its Subsidiaries or to which
any of their respective property is subject of a
character required to be disclosed in the Offering
Memorandum which is not adequately disclosed in the
Offering Memorandum;
(iv) except as otherwise disclosed in the
Offering Memorandum, all of the issued and
outstanding shares of capital stock of, or other
ownership interests in, each Significant Subsidiary
of the Company that is owned directly or indirectly
by the Company have been duly and validly authorized
and issued, and, except as otherwise described in the
Offering Memorandum, the shares of capital stock of,
or other ownership interests in, each of its
Significant Subsidiaries are owned of record,
directly or through subsidiaries, by the Company, are
fully paid and nonassessable, and to the best
knowledge of such counsel are owned free and clear of
any material, consensual Lien;
(v) the Company and each of its Significant
Subsidiaries is a duly organized corporation, has the
requisite corporate power and authority to own, lease
and operate its properties and to conduct its
business as described in the Offering Memorandum,
and, to the extent each is a party thereto, to
execute, deliver and perform its obligations pursuant
to the Indentures and this Agreement, and is duly
qualified as a foreign corporation and in good
standing in each jurisdiction where the ownership,
leasing or operation of property or the conduct of
its business requires such qualification, except
where the failure so to be qualified could not
reasonably be expected to have, singly or in the
aggregate, a Material Adverse Effect; and
(vi) the execution and delivery by the Company
of this Agreement and the Indentures and the issuance
and sale of the Securities to you as contemplated
thereby and the performance of its obligations
pursuant to this Agreement and the Indentures will
not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a
default (with the passage of time or otherwise)
under, or result in the imposition of a Lien on any
properties of the Company or any of its Subsidiaries
or an acceleration of indebtedness pursuant to any of
the agreements listed on a schedule attached to such
- 18 -
counsel's opinion, where, in any such instance, such
breach, default, Lien, acceleration of indebtedness
or conflict could have, singly or in the aggregate, a
material adverse effect or a prospective material
adverse effect on the business, financial condition
or results of operations of the Company and its
Subsidiaries, taken as a whole.
(4) In giving their opinion required by subsection
(e)(3) of this Section 8, such counsel shall state that no
fact has come to the attention of such counsel that leads it
to believe that the descriptions of statutes, legal and
governmental proceedings, contracts and other documents and
regulatory matters described in the Offering Memorandum under
the captions set forth in subsection (e)(3)(i) of this Section
8 contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(5) an opinion (satisfactory to you and Initial
Purchasers' Counsel), dated the Closing Date, of Xxxxxxxx and
Wedge, special Nevada counsel to the Company, to the effect
that:
(i) the Company has the corporate power and
authority to execute, deliver and perform this
Agreement and the Company has the corporate power and
authority to authorize, issue and sell the Securities
as contemplated by this Agreement;
(ii) this Agreement has been duly authorized,
executed and delivered by the Company, and the
Securities and the Indentures have been duly
authorized, executed and delivered by the Company;
(iii) the Company is a duly organized and validly
existing corporation in good standing under the laws
of the State of Nevada and has the requisite
corporate power and authority to own, lease and
operate its properties and to conduct its business as
described in the Offering Memorandum, and to execute
and deliver, and perform its obligations pursuant to,
the Indentures, the Securities and this Agreement;
(iv) no consent, approval, authorization, or
order of any Nevada governmental agency or body is
required, for the consummation by the Company of the
transactions contemplated by this Agreement in
connection with the issuance and sale of the
Securities;
(v) the execution and delivery by the Company
of this Agreement and the Indentures, the issuance
and sale of the Securities to you as contemplated by
this Agreement and the performance of its obligations
pursuant to this Agreement, the Securities and the
Indentures will not conflict with or result in a
breach or violation of any of the terms or provision
of, or constitute a default under, (a) any of the
charter or bylaws of the Company, or (b) any existing
applicable statute, rule or regulation or any order
of any Nevada court or governmental agency or body
having jurisdiction over the Company or any of its
properties; provided that the opinion expressed in
clause (b) is limited to those statutes, rules or
regulations which, in the experience of such counsel,
are normally applicable to transactions of the type
contemplated by this Agreement in connection with the
issuance and sale of the Securities; and
(vi) in any action or proceeding arising out of
or relating to this Agreement or the Indentures in
any court of the State of Nevada or in any federal
court sitting in the state of Nevada, such court
would recognize and give effect to the provisions of
Section 11 of this Agreement and Section 9.10 of the
Indentures wherein the parties thereto agreed, to the
- 19 -
extent therein stated, that each such document shall
be governed by and construed in accordance with the
internal laws of the State of New York.
(f) You shall have received an opinion, dated the Closing
Date, of Xxxxxxxx & Xxxxxxxx, counsel for the Initial Purchasers, in
form and substance reasonably satisfactory to you.
(g) You shall have received complete sets of all closing
documents, including without limitation all opinions, required to be
delivered under any of the other Operative Documents.
(h) You shall have received letters on and as of the date
hereof as well as on and as of the Closing Date, in the latter case
constituting an affirmation of the statements set forth in the earlier
letters, in form and substance satisfactory to you, from KPMG Peat
Marwick LLP, independent public accountants to the Company, with
respect to the financial statements and certain financial information
contained or incorporated by reference in the Offering Memorandum as
you shall reasonably require.
(i) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement and the
Offering Memorandum and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be reasonably
satisfactory to Xxxxxxxx & Xxxxxxxx.
(j) There shall have been no amendments, alterations,
modifications, or waivers of any provisions of the Operative Documents
since the date of the execution and delivery thereof by the parties
thereto other than those which are disclosed in the Offering Memorandum
or any supplement thereto or which under the Act are not required to be
disclosed in the Offering Memorandum or any supplement thereto and
which have been disclosed to the Initial Purchasers prior to the date
hereof.
(k) On or before the Closing Date, the Initial Purchasers and
Xxxxxxxx & Xxxxxxxx, counsel for the Initial Purchasers, shall have
received such further documents, opinions, certificates and schedules
or instruments relating to the business, corporate, legal and financial
affairs of the Company and the Subsidiaries as they shall have
reasonably requested prior to the date of this Agreement.
9. EFFECTIVE DATE OF AGREEMENT, DEFAULT AND TERMINATION. This
Agreement shall become effective upon the execution and delivery of this
Agreement by the parties hereto.
This Agreement may be terminated at any time on or prior to
the Closing Date by you by notice to the Company if any of the following has
occurred: (i) subsequent to the date of this Agreement, any Material Adverse
Change which, in your judgment, impairs the investment quality of the
Securities, (ii) any outbreak or escalation of hostilities or other national or
international calamity or crisis or material adverse change in the financial
markets of the United States or elsewhere, or any other substantial national or
international calamity or emergency if the effect of such outbreak, escalation,
calamity, crisis or emergency would, in your judgment make it impracticable or
inadvisable to market the Securities or to enforce contracts for the sale of the
Securities, (iii) any suspension or limitation of trading generally in
securities, or in any securities of the Company on the New York or American
Stock Exchanges, or the National Association of Securities Dealers Automated
Quotation National Market, or the over-the-counter markets or any setting of
minimum prices for trading on such exchanges or markets, (iv) any declaration of
a general banking moratorium by either Federal or New York authorities, (v) the
taking of any action by any Federal or state government or agency in respect of
its monetary or fiscal affairs that in your judgment has a material adverse
effect on the financial markets in the United States, and would, in your
judgment, make it impracticable or inadvisable to market the Securities or to
enforce contracts for the sale of the Securities, (vi) any securities of the
Company or any of its Subsidiaries shall have been downgraded or placed on any
"watch list" for possible downgrading or reviewed for a possible change that
does not indicate the direction of the possible change by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) of the Act, or (vii) the enactment, publication,
decree or other
- 20 -
promulgation of any Federal or state statute, regulation, or rule or order of
any court or other governmental authority which in your judgment could
reasonably be expected to have a Material Adverse Effect.
If this Agreement shall be terminated by you pursuant to
clause (i), (vi) or, in the case of a statute, regulation, rule or order
specifically addressing the Company, and not affecting the general hospital
industry generally, (vii) of the second paragraph of this Section 9 or
because of the failure or refusal on the part of the Company to comply with
the terms or to fulfill any of the conditions of this Agreement, the Company
agrees to reimburse you for all reasonable out-of-pocket expenses (including
the reasonable fees and disbursements of counsel) incurred by you.
Notwithstanding any termination of this Agreement, the Company shall be
liable for all expenses which it has agreed to pay pursuant to Section 4(d)
hereof. If this Agreement is terminated pursuant to this Section 9, such
termination shall be without liability of any Initial Purchaser to the
Company or any of its Subsidiaries.
If on the Closing Date any Initial Purchaser shall fail or
refuse to purchase the securities which it has agreed to purchase hereunder
on such date, and the aggregate principal amount of such Securities that such
defaulting Initial Purchaser or Initial Purchasers, as the case may be,
agreed but failed or refused to purchase does not exceed 20% of the total
principal amount of such Securities to be purchased on such date by all
Initial Purchasers, each non-defaulting Initial Purchaser shall be obligated
severally, in the proportion which the amount of Securities set forth
opposite its name in Schedule I and Schedule II, respectively, hereto bears
to the aggregate principal amount of Securities which all the non-defaulting
Initial Purchasers, as the case may be, have agreed to purchase, or in such
other proportion as you (at your option) may specify, to purchase the
Securities that such defaulting Initial Purchaser or Initial Purchasers, as
the case may be, agreed but failed or refused to purchase on such date;
PROVIDED that in no event shall the aggregate principal amount of Securities
that any Initial Purchaser has agreed to purchase pursuant to Section 2
hereof be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such principal amount of Securities without the written consent
of such Initial Purchaser. If, on the Closing Date any of the Initial
Purchasers shall fail or refuse to purchase the Securities, as the case may
be, and the total principal amount of Securities with respect to which such
default occurs exceeds 20% of the total amount of Securities to be purchased
on such date by all Initial Purchasers and arrangements satisfactory to you
and the Company for the purchase of such Securities are not made within 48
hours after such default, this Agreement shall terminate without liability on
the part of the non-defaulting Initial Purchaser and the Company, except as
otherwise provided in this Section 9. In any such case that does not result
in termination of this Agreement, either the non-defaulting Initial Purchaser
or the Company may postpone the Closing Date for not longer than seven (7)
days, in order that the required changes, if any, in the Offering Memorandum
or any other documents or arrangements may be effected. Any action taken
under this paragraph shall not relieve a defaulting Initial Purchaser from
liability in respect of any default of any such Initial Purchaser under this
Agreement.
10. NOTICES. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to it at 0000
Xxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Chief Financial
Officer, with copies to Attention: General Counsel and to Skadden, Arps, Slate,
Xxxxxxx & Xxxx, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx
00000, Attention: Xxxxxx X. Xxxxxx, Xx. and (b) if to any Initial Purchaser, to
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Syndicate Department, and, in each case, with a copy
to Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx, or in any case to such other
address as the person to be notified may have required in writing.
11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AS
APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY HEREBY
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK
STATE COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH ANY SUIT,
ACTION OR PROCEEDING RELATED TO THIS AGREEMENT OR ANY OF THE MATTERS
CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL
JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN
- 21 -
RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
ANY SUCH COURT. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
12. SEVERABILITY. Any determination that any provision of
this Agreement may be, or is, unenforceable shall not affect the
enforceability of the remainder of this Agreement.
13. SUCCESSORS. Except as otherwise provided, this Agreement
has been and is made solely for the benefit of and shall be binding upon the
Company, the Initial Purchasers, any Indemnified Person referred to herein and
their respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The terms "successors and assigns" shall not include a
purchaser of any of the Securities from any of the Initial Purchasers merely
because of such purchase.
14. CERTAIN DEFINITIONS. For purposes of this Agreement,
(a) "business day" means any day on which the NYSE is open for trading and
(b) "subsidiary" has the meaning set forth in Rule 405 under the Act.
15. COUNTERPARTS. This Agreement may be executed in one or
more counterparts and, if executed in one or more counterparts, the executed
counterparts shall each be deemed to be an original, not all such
counterparts shall together constitute one and the same instrument.
16. HEADINGS. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to
affect the meaning or interpretation of, this Agreement.
17. SURVIVAL. The indemnities and contribution provisions
and the other agreements, representations and warranties of the Company, its
officers and directors and of the Initial Purchasers set forth in or made
pursuant to this Agreement shall remain operative and in full force and
effect, and will survive delivery of and payment for the Securities,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any of the Initial Purchasers or by or on behalf of
the Company, the officers or directors of the Company or any controlling
person of the Company, (ii) acceptance of the Securities and payment for them
hereunder and (iii) termination of this Agreement.
- 22 -
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument. Please confirm that the
foregoing correctly sets forth the agreement among the Company and you.
Very truly yours,
XXXXX HEALTHCARE CORPORATION
By: /s/ XXXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
The foregoing Purchase Agreement
is hereby confirmed and accepted as of
the date first above written.
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: /s/ XXXXX X. XXXXXXXX III
-------------------------------------
Name: Xxxxx X. Xxxxxxxx III
Title: Managing Director Investment Banking
- 23 -
X.X. XXXXXX SECURITIES INC.
By: /s/ XXXXX X. XXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ XXXXXXX XXXXXXX
---------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Principal
SALOMON BROTHERS INC
By: /s/ XXXXXX X. XXXXXXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Director
DEUTSCHE XXXXXX XXXXXXXX INC.
By: /s/ XXXXX XXXXXX
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
By: /s/ XXXX XXXXXXX
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
- 24 -
BANCAMERICA XXXXXXXXX XXXXXXXX
By: /s/ XXXX XXXXX
---------------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
- 25 -
SCHEDULE I
PRINCIPAL PERCENTAGE
INITIAL PURCHASER AMOUNT OF TOTAL
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation ................... $175,000,000 50.0%
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated..................... $ 52,500,000 15.0%
X.X. Xxxxxx Securities Inc............................................. $ 35,000,000 10.0%
Xxxxxx Xxxxxxx & Co. Incorporated...................................... $ 26,250,000 7.5%
Salomon Brothers Inc .................................................. $ 26,250,000 7.5%
Deutsche Xxxxxx Xxxxxxxx Inc........................................... $ 17,500,000 5.0%
BancAmerica Xxxxxxxxx Xxxxxxxx......................................... $ 17,500,000 5.0%
------------------ ------------------
Total................................................ $300,000,000 100.0%
================== ==================
I-1
SCHEDULE II
PRINCIPAL PERCENTAGE
INITIAL PURCHASER AMOUNT OF TOTAL
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation.................... $500,000,000 50.0%
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated..................... $150,000,000 15.0%
X.X. Xxxxxx Securities Inc............................................. $100,000,000 10.0%
Xxxxxx Xxxxxxx & Co. Incorporated...................................... $100,000,000 10.0%
Salomon Brothers Inc................................................... $100,000,000 10.0%
Deutsche Xxxxxx Xxxxxxxx Inc........................................... $ 50,000,000 5.0%
------------------ ------------------
Total............................................... $1,000,000,000 100.0%
================== ==================
III-1
EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT
III-2
