Sun Healthcare Group, Inc. 9⅛% Senior Subordinated Notes due 2015 REGISTRATION RIGHTS AGREEMENT
EXHIBIT
4.3
EXECUTION
COPY
$200,000,000
Sun
Healthcare Group, Inc.
9⅛%
Senior Subordinated Notes due 2015
April 12,
2007
Credit
Suisse Securities (USA) LLC
CIBC
World Markets Corp.
UBS
Securities LLC
Xxxxxxxxx &
Company, Inc.
c/o
Credit Suisse Securities (USA) LLC
Xxxxxx
Xxxxxxx Xxxxxx
Dear
Sirs:
Sun
Healthcare Group, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to Credit Suisse Securities (USA) LLC, CIBC World Markets Corp.,
UBS Securities LLC and Xxxxxxxxx & Company, Inc. (collectively, the
"Initial Purchasers"), upon the terms set forth in a purchase agreement dated
March 22, 2007 (the "Purchase Agreement"), $200,000,000 aggregate principal
amount of its 9⅛% Senior Subordinated Notes due 2015 (the "Initial Securities")
to be unconditionally guaranteed (the "Guaranties") by the subsidiary guarantors
listed in Schedule I attached hereto (the "Guarantors") and immediately
following the consummation of the Acquisition (as defined in the Purchase
Agreement) by Harborside Healthcare Corporation (“Harborside”) and its
subsidiary guarantors listed in Schedule II attached hereto (the “Harborside
Guarantors”). The Initial Securities will be issued pursuant to an Indenture,
dated as of April 12, 2007 (the "Indenture") among the Company, the
Guarantors named therein and Xxxxx Fargo Bank, N.A. (the "Trustee") and a
supplemental indenture to the Indenture (the “Supplemental Indenture”) which
will cause Harborside and the Harborside Guarantors to guarantee the Initial
Securities effective upon consummation of the Acquisition. Harborside and the
Harborside Guarantors will also formally join this agreement pursuant to the
joinder attached hereto as Exhibit A. As an inducement to the Initial
Purchasers, the Company and the Guarantors agree with the Initial Purchasers,
for the benefit of the holders of the Initial Securities (including, without
limitation, the Initial Purchasers), the Exchange Securities (as defined below)
and the Private Exchange Securities (as defined below) (collectively the
"Holders"), as follows:
1. Registered
Exchange Offer. The
Company shall, at its own cost, prepare and, not later than 90 days after (or
if
the 90th day is not a business day, the first business day thereafter) the
date
of original issue of the Initial Securities (the "Issue Date"), file with the
Securities and Exchange Commission (the
"Commission")
a registration statement (the "Exchange Offer Registration Statement") on an
appropriate form under the Securities Act of 1933, as amended (the "Securities
Act"), with respect to a proposed offer (the "Registered Exchange Offer") to
the
Holders of Transfer Restricted Securities (as defined in Section 6 hereof),
who are not prohibited by any law or policy of the Commission from participating
in the Registered Exchange Offer, to issue and deliver to such Holders, in
exchange for the Initial Securities, a like aggregate principal amount of debt
securities (the "Exchange Securities") of the Company issued under the Indenture
and identical in all material respects to the Initial Securities (except for
the
transfer restrictions relating to the Initial Securities and the provisions
relating to the matters described in Section 6 hereof). The Exchange Securities
and the Guarantees would be registered under the Securities Act. The Company
shall use its commercially reasonable efforts to cause such Exchange Offer
Registration Statement to become effective under the Securities Act within
210
days (or if the 210th day is not a business day, the first business day
thereafter) after the Issue Date of the Initial Securities and shall keep the
Exchange Offer Registration Statement effective for not less than 30 days
(or longer, if required by applicable law) after the date notice of the
Registered Exchange Offer is mailed to the Holders (such period being called
the
"Exchange Offer Registration Period").
If
the
Company effects the Registered Exchange Offer, the Company will be entitled
to
close the Registered Exchange Offer 30 days after the commencement thereof
provided that the Company has accepted all the Initial Securities theretofore
validly tendered in accordance with the terms of the Registered Exchange
Offer.
Following
the declaration of the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered Exchange Offer,
it
being the objective of such Registered Exchange Offer to enable each Holder
of
Transfer Restricted Securities (as defined in Section 6 hereof) electing to
exchange the Initial Securities for Exchange Securities (assuming that such
Holder is not an affiliate of the Company within the meaning of the Securities
Act, acquires the Exchange Securities in the ordinary course of such Xxxxxx's
business and has no arrangements with any person to participate in the
distribution of the Exchange Securities and is not prohibited by any law or
policy of the Commission from participating in the Registered Exchange Offer)
to
trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States.
The
Company acknowledges that, pursuant to current interpretations by the
Commission's staff of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder which is a broker-dealer
electing to exchange Initial Securities, acquired for its own account as a
result of market making activities or other trading activities, for Exchange
Securities (an "Exchanging Dealer"), is required to deliver a prospectus
containing the information set forth in (a) Annex A hereto on the cover, (b)
Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose
of
the Exchange Offer" section, and (c) Annex C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any such
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell
Exchange Securities acquired in exchange for Initial Securities constituting
any
portion of an unsold allotment is required to deliver a prospectus containing
the information required by Items 507 or 508 of Regulation S-K under the
Securities Act, as applicable, in connection with such sale.
The
Company shall use its commercially reasonable efforts to keep the Exchange
Offer
Registration Statement effective and to amend and supplement the prospectus
contained therein, in order to permit such prospectus to be lawfully delivered
by all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Securities; provided, however, that (i) in
the
case where such prospectus and any amendment or supplement thereto must be
delivered by an Exchanging Dealer or an
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Initial
Purchaser, such period shall be the lesser of 180 days and the date on which
all
Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities
held by them (unless such period is extended pursuant to Section 3(j) below)
and
(ii) the Company shall make such prospectus and any amendment or supplement
thereto, available to any broker-dealer for use in connection with any resale
of
any Exchange Securities for a period of not less than 90 days after the
consummation of the Registered Exchange Offer.
If,
upon
consummation of the Registered Exchange Offer, any Initial Purchaser holds
Initial Securities acquired by it as part of its initial distribution, the
Company, simultaneously with the delivery of the Exchange Securities pursuant
to
the Registered Exchange Offer, shall issue and deliver to such Initial Purchaser
upon the written request of such Initial Purchaser, in exchange (the "Private
Exchange") for the Initial Securities held by such Initial Purchaser, a like
principal amount of debt securities of the Company issued under the Indenture
and identical in all material respects (including the existence of restrictions
on transfer under the Securities Act and the securities laws of the several
states of the United States, but excluding provisions relating to the matters
described in Section 6 hereof) to the Initial Securities (the "Private Exchange
Securities"). The Initial Securities, the Exchange Securities and the Private
Exchange Securities are herein collectively called the
"Securities".
In
connection with the Registered Exchange Offer, the Company shall:
(a) mail
to each Holder a copy of the prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal
and
related documents;
(b) keep
the Registered Exchange Offer open for not less than 30 days (or longer, if
required by applicable law) after the date notice thereof is mailed to the
Holders;
(c) utilize
the services of a depositary for the Registered Exchange Offer with an address
in the Borough of Manhattan, The City of New York, which may be the Trustee
or
an affiliate of the Trustee;
(d) permit
Holders to withdraw tendered Initial Securities at any time prior to the close
of business, New York time, on the last business day on which the Registered
Exchange Offer shall remain open; and
(e) otherwise
comply with all applicable laws.
As
soon
as practicable after the close of the Registered Exchange Offer or the Private
Exchange, as the case may be, the Company shall:
(x) accept
for exchange all the Initial Securities validly tendered and not withdrawn
pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver
to the Trustee for cancellation all the Initial Securities so accepted for
exchange; and
(z) cause
the Trustee to authenticate and deliver promptly to each Holder of the Initial
Securities, Exchange Securities or Private Exchange Securities, as the case
may
be, equal in principal amount to the Initial Securities of such Holder so
accepted for exchange.
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The
Indenture will provide that the Exchange Securities will not be subject to
the
transfer restrictions set forth in the Indenture and that all the Securities
will vote and consent together on all matters as one class and that none of
the
Securities will have the right to vote or consent as a class separate from
one
another on any matter.
Interest
on each Exchange Security and Private Exchange Security issued pursuant to
the
Registered Exchange Offer and in the Private Exchange will accrue from the
last
interest payment date on which interest was paid on the Initial Securities
surrendered in exchange therefor or, if no interest has been paid on the Initial
Securities, from the date of original issue of the Initial
Securities.
Each
Holder participating in the Registered Exchange Offer shall be required to
represent to the Company that at the time of the consummation of the Registered
Exchange Offer (i) any Exchange Securities received by such Holder will be
acquired in the ordinary course of business, (ii) such Holder will have no
arrangements or understanding with any person to participate in the distribution
of the Securities or the Exchange Securities within the meaning of the
Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule
405 of the Securities Act, of the Company or if it is an affiliate, such Holder
will comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, (iv) if such Holder is not a
broker-dealer, that it is not engaged in, and does not intend to engage in,
the
distribution of the Exchange Securities and (v) if such Holder is a
broker-dealer, that it will receive Exchange Securities for its own account
in
exchange for Initial Securities that were acquired as a result of market-making
activities or other trading activities and that it will be required to
acknowledge that it will deliver a prospectus in connection with any resale
of
such Exchange Securities.
Notwithstanding
any other provisions hereof, the Company will ensure that (i) any Exchange
Offer
Registration Statement and any amendment thereto and any prospectus forming
part
thereof and any supplement thereto complies in all material respects with the
Securities Act and the rules and regulations thereunder, (ii) any Exchange
Offer
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state
a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any prospectus forming part of any Exchange
Offer Registration Statement, and any supplement to such prospectus, does not
include an untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
2. Shelf
Registration.
If, (i)
because of any change in law or in applicable interpretations thereof by the
staff of the Commission, the Company is not permitted to effect a Registered
Exchange Offer, as contemplated by Section 1 hereof, (ii) the Registered
Exchange Offer is not consummated within 240 days of the Issue Date, (iii)
any
Initial Purchaser so requests with respect to the Initial Securities (or the
Private Exchange Securities) not eligible to be exchanged for Exchange
Securities in the Registered Exchange Offer and held by it following
consummation of the Registered Exchange Offer or (iv) any Holder (other than
an
Exchanging Dealer) notifies the Company prior to the 20th day following
consummation of the Registered Exchange Offer that it is not eligible to
participate in the Registered Exchange Offer or, in the case of any Holder
(other than an Exchanging Dealer) that participates in the Registered Exchange
Offer, such Holder does not receive freely tradeable Exchange Securities on
the
date of the exchange, the Company shall take the following actions:
(a) The
Company shall, at its cost, as promptly as practicable file with the Commission
and thereafter shall use its commercially reasonable efforts to cause to be
declared effective (unless it becomes effective automatically upon filing)
on or
prior to the 210th day after the Issue Date a
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registration
statement (the "Shelf Registration Statement" and, together with the Exchange
Offer Registration Statement, a "Registration Statement") on an appropriate
form
under the Securities Act relating to the offer and sale of the Transfer
Restricted Securities (as defined in Section 6 hereof), including the related
Guarantees, by the Holders thereof from time to time in accordance with the
methods of distribution set forth in the Shelf Registration Statement and Rule
415 under the Securities Act (hereinafter, the "Shelf Registration"); provided,
however, that no Holder (other than an Initial Purchaser) shall be entitled
to
have the Securities held by it covered by such Shelf Registration Statement
unless such Holder agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder.
(b) The
Company shall use its commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective in order to permit the prospectus
included therein to be lawfully delivered by the Holders of the relevant
Securities, for a period of two years (or for such longer period if extended
pursuant to Section 3(j) below) from the Issue Date or such shorter period
that
will terminate when all the Securities covered by the Shelf Registration
Statement (i) have been sold pursuant thereto or (ii) can be sold pursuant
to
Rule 144 under the Securities Act, or any successor rule thereof, without any
limitations under clauses (c), (e), (f) and (h) of Rule 144 (the “Shelf
Registration Period”). The Company shall be deemed not to have used its
commercially reasonable efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily takes any action that
would result in Holders of Securities covered thereby not being able to offer
and sell such Securities during that period, unless such action is required
by
applicable law or is pursuant to Section 3(j) below.
(c) Notwithstanding
any other provisions of this Agreement to the contrary, the Company shall cause
the Shelf Registration Statement and the related prospectus and any amendment
or
supplement thereto, as of the effective date of the Shelf Registration
Statement, amendment or supplement, (i) to comply in all material respects
with
the applicable requirements of the Securities Act and the rules and regulations
of the Commission and (ii) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
3. Registration
Procedures.
In
connection with any Shelf Registration contemplated by Section 2 hereof and,
to
the extent applicable, any Registered Exchange Offer contemplated by Section
1
hereof, the following provisions shall apply:
(a) The
Company shall (i) furnish to each Initial Purchaser, prior to the filing
thereof with the Commission, a copy of the Registration Statement and each
amendment thereof and each supplement, if any, to the prospectus included
therein and, in the event that an Initial Purchaser (with respect to any portion
of an unsold allotment from the original offering) is participating in the
Registered Exchange Offer or the Shelf Registration Statement, the Company
shall
use its commercially reasonable efforts to reflect in each such document, when
so filed with the Commission, such comments as such Initial Purchaser reasonably
may propose; (ii) include the information set forth in Annex A hereto on the
cover, in Annex B hereto in the "Exchange Offer Procedures" section and the
"Purpose of the Exchange Offer" section and in Annex C hereto in the "Plan
of
Distribution" section of the prospectus forming a part of the Exchange Offer
Registration Statement and include the information set forth in Annex D hereto
in the Letter of Transmittal delivered pursuant to the Registered Exchange
Offer; (iii) if requested by an Initial Purchaser, include the information
required by Items 507 or 508 of Regulation S-K under the Securities
Act,
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as
applicable, in the prospectus forming a part of the Exchange Offer Registration
Statement; (iv) include within the prospectus contained in the Exchange
Offer Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, which shall contain a summary
statement of the positions taken or policies made by the staff of the Commission
with respect to the potential "underwriter" status of any broker-dealer that
is
the beneficial owner (as defined in Rule 13d-3 under the Securities Exchange
Act
of 1934, as amended (the "Exchange Act")) of Exchange Securities received by
such broker-dealer in the Registered Exchange Offer (a "Participating
Broker-Dealer"), whether such positions or policies have been publicly
disseminated by the staff of the Commission or such positions or policies,
in
the reasonable judgment of the Initial Purchasers based upon advice of counsel
(which may be in-house counsel), represent the prevailing views of the staff
of
the Commission; and (v) in the case of a Shelf Registration Statement, include
in the prospectus included in the Shelf Registration Statement (or, if permitted
by Commission Rule 430B(b), in a prospectus supplement that becomes a part
thereof pursuant to Commission Rule 430B(f)) that is delivered to any
Holder pursuant to Section 3(d) and (f), the names of the Holders, who
propose to sell Securities pursuant to the Shelf Registration Statement, as
selling securityholders.
(b) The
Company shall give written notice to the Initial Purchasers, the Holders of
the
Securities and any Participating Broker-Dealer from whom the Company has
received prior written notice that it will be a Participating Broker-Dealer
in
the Registered Exchange Offer (which notice pursuant to clauses (ii)-(iv) hereof
shall be accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made):
(i) when
the Registration Statement or any post-effective amendment thereto has become
effective;
(ii) of
the issuance by the Commission of any stop order suspending the effectiveness
of
the Registration Statement or the initiation of any proceedings for that
purpose, of the issuance by the Commission of a notification of objection to
the
use of the form on which the Registration Statement has been filed, and of
the
happening of any event that causes the Company to become an “ineligible issuer,”
as defined in Commission Rule 405.
(iii) of
the receipt by the Company or its legal counsel of any notification with respect
to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and
(iv) of
the happening of any event that requires the Company to make changes in the
Registration Statement after it is effective or the prospectus in order that
the
Registration Statement or the prospectus do not contain an untrue statement
of a
material fact nor omit to state a material fact required to be stated therein
or
necessary to make the statements therein (in the case of the prospectus, in
light of the circumstances under which they were made) not
misleading.
(c) The
Company shall make every reasonable effort to obtain the withdrawal at the
earliest possible time, of any order suspending the effectiveness of the
Registration Statement.
(d) The
Company shall furnish to each Holder of Securities included within the coverage
of the Shelf Registration, without charge, at least one copy of the Shelf
Registration Statement and
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any
post-effective amendment or supplement thereto, including financial statements
and schedules, and, if the Holder so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference). The Company shall not,
without the prior consent of the Initial Purchasers, make any offer relating
to
the Securities that would constitute a “free writing prospectus,” as defined in
Commission Rule 405.
(e) The
Company shall deliver to each Exchanging Dealer and each Initial Purchaser,
and
to any other Holder who so requests, without charge, at least one copy of the
Exchange Offer Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if any Initial Purchaser
or
any such Holder requests, all exhibits thereto (including those incorporated
by
reference).
(f) The
Company shall, during the Shelf Registration Period, deliver to each Holder
of
Securities included within the coverage of the Shelf Registration, without
charge, as many copies of the prospectus (including each preliminary prospectus)
included in the Shelf Registration Statement and any amendment or supplement
thereto as such person may reasonably request. The Company consents, subject
to
the provisions of this Agreement, to the use of the prospectus or any amendment
or supplement thereto by each of the selling Holders of the Securities in
connection with the offering and sale of the Securities covered by the
prospectus, or any amendment or supplement thereto, included in the Shelf
Registration Statement.
(g) The
Company shall deliver to each Initial Purchaser, any Exchanging Dealer, any
Participating Broker-Dealer and such other persons required to deliver a
prospectus following the Registered Exchange Offer, without charge, as many
copies of the final prospectus included in the Exchange Offer Registration
Statement and any amendment or supplement thereto as such persons may reasonably
request. The Company consents, subject to the provisions of this Agreement,
to
the use of the prospectus or any amendment or supplement thereto by any Initial
Purchaser, if necessary, any Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered Exchange Offer in
connection with the offering and sale of the Exchange Securities covered by
the
prospectus, or any amendment or supplement thereto, included in such Exchange
Offer Registration Statement.
(h) Prior
to any public offering of the Securities, pursuant to any Registration
Statement, the Company shall register or qualify or cooperate with the Holders
of the Securities included therein and their respective counsel in connection
with the registration or qualification of the Securities for offer and sale
under the securities or "blue sky" laws of such states of the United States
as
any Holder of the Securities reasonably requests in writing and do any and
all
other acts or things necessary or advisable to enable the offer and sale in
such
jurisdictions of the Securities covered by such Registration Statement;
provided, however, that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so qualified
or (ii) take any action which would subject it to general service of process
or
to taxation in any jurisdiction where it is not then so subject.
(i) The
Company shall cooperate with the Holders of the Securities to facilitate the
timely preparation and delivery of certificates representing the Securities
to
be sold pursuant to any Registration Statement free of any restrictive legends
and in such denominations and registered in such names as the Holders may
request a reasonable period of time prior to sales of the Securities pursuant
to
such Registration Statement.
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(j) Upon
the occurrence of any event contemplated by paragraphs (ii) through (iv) of
Section 3(b) above during the period for which the Company is required to
maintain an effective Registration Statement, the Company shall promptly prepare
and file a post-effective amendment to the Registration Statement or a
supplement to the related prospectus and any other required document so that,
as
thereafter delivered to Holders of the Securities or purchasers of Securities,
the prospectus will not contain an 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 light of the circumstances under which they were
made, not misleading. If the Company notifies the Initial Purchasers, the
Holders of the Securities and any known Participating Broker-Dealer in
accordance with paragraphs (ii) through (iv) of Section 3(b) above to suspend
the use of the prospectus until the requisite changes to the prospectus have
been made, then the Initial Purchasers, the Holders of the Securities and any
such Participating Broker-Dealers shall suspend use of such prospectus, and
the
period of effectiveness of the Shelf Registration Statement provided for in
Section 2(b) above and the Exchange Offer Registration Statement provided for
in
Section 1 above shall each be extended by the number of days from and including
the date of the giving of such notice to and including the date when the Initial
Purchasers, the Holders of the Securities and any known Participating
Broker-Dealer shall have received such amended or supplemented prospectus
pursuant to this Section 3(j). During the period during which the Company is
required to maintain an effective Shelf Registration Statement pursuant to
this
Agreement, the Company will prior to the three-year expiration of that Shelf
Registration Statement file, and use its commercially reasonable efforts to
cause to be declared effective (unless it becomes effective automatically upon
filing) within a period that avoids any interruption in the ability of Holders
of Securities covered by the expiring Shelf Registration Statement to make
registered dispositions, a new registration statement relating to the
Securities, which shall be deemed the “Shelf Registration Statement” for
purposes of this Agreement.
(k) Not
later than the effective date of the applicable Registration Statement, the
Company will provide a CUSIP number for the Initial Securities, the Exchange
Securities or the Private Exchange Securities, as the case may be, and provide
the applicable trustee with certificates for the Initial Securities, the
Exchange Securities or the Private Exchange Securities, as the case may be,
in a
form eligible for deposit with The Depository Trust Company.
(l) The
Company will comply with all rules and regulations of the Commission to the
extent and so long as they are applicable to the Registered Exchange Offer
or
the Shelf Registration and will make generally available to its security holders
(or otherwise provide in accordance with Section 11(a) of the Securities Act)
an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90 days,
if
such period is a fiscal year) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the Registration
Statement, which statement shall cover such 12-month period.
(m) The
Company shall cause the Indenture to be qualified under the Trust Indenture
Act
of 1939, as amended, in a timely manner and containing such changes, if any,
as
shall be necessary for such qualification. In the event that such qualification
would require the appointment of a new trustee under the Indenture, the Company
shall appoint a new trustee thereunder pursuant to the applicable provisions
of
the Indenture.
(n) The
Company may require each Holder of Securities to be sold pursuant to the Shelf
Registration Statement to furnish to the Company such information regarding
the
Holder and the
8
distribution
of the Securities as the Company may from time to time reasonably require for
inclusion in the Shelf Registration Statement, and the Company may exclude
from
such registration the Securities of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
(o) The
Company shall enter into such customary agreements (including, if requested,
an
underwriting agreement in customary form) and take all such other action, if
any, as any Holder of the Securities shall reasonably request in order to
facilitate the disposition of the Securities pursuant to any Shelf
Registration.
(p) In
the case of any Shelf Registration, the Company shall (i) make reasonably
available for inspection by the Holders of the Securities, any underwriter
participating in any disposition pursuant to the Shelf Registration Statement
and any attorney, accountant or other agent retained by the Holders of the
Securities or any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company and (ii) cause
the
Company's officers, directors, employees, accountants and auditors to supply
all
relevant information reasonably requested by the Holders of the Securities
or
any such underwriter, attorney, accountant or agent in connection with the
Shelf
Registration Statement, in each case, as shall be reasonably necessary to enable
such persons to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that the foregoing
inspection and information gathering shall be coordinated on behalf of the
Initial Purchasers by you and on behalf of the other parties, by one counsel
designated by and on behalf of such other parties as described in Section 4
hereof.
(q) In
the case of any Shelf Registration, the Company, if requested by any Holder
of
Securities covered thereby in connection with an underwritten offering, shall
cause (i) its counsel to deliver an opinion and updates thereof relating to
the Securities in customary form addressed to such Holders and the managing
underwriters, if any, thereof and dated, in the case of the initial opinion,
the
date of closing of the sale of the Securities pursuant to the Shelf Registration
Statement (it being agreed that the matters to be covered by such opinion shall
include, without limitation, the due authorization, execution and delivery
of
the relevant agreement of the type referred to in Section 3(o) hereof; the
due authorization, execution, authentication and issuance, and the validity
and
enforceability, of the applicable Securities; the absence of governmental
approvals required to be obtained in connection with the Shelf Registration
Statement, the offering and sale of the applicable Securities, or any agreement
of the type referred to in Section 3(o) hereof; the compliance as to form
of such Shelf Registration Statement and any documents incorporated by reference
therein and of the Indenture with the requirements of the Securities Act and
the
Trust Indenture Act, respectively; other matters covered by the opinions set
forth in Section 7(c) and 7(d) of the Purchase Agreement with appropriate
changes; and (A) as of the effective date of the Shelf Registration
Statement or most recent post-effective amendment thereto, as the case may
be,
the absence from such Shelf Registration Statement, as then amended or
supplemented, including any documents incorporated by reference therein of
an
untrue statement of a material fact or the omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading and (B) as of an applicable time identified by such managing
underwriters, the absence from such prospectus taken together with any other
documents identified by such Holders or managing underwriters of an untrue
statement of a material fact or the omission to state therein 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;
(ii) its officers to execute and deliver all customary documents
and
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certificates
and updates thereof requested by any underwriters of the applicable Securities
and (iii) its independent public accountants and the independent public
accountants with respect to any other entity for which financial information
is
provided in the Shelf Registration Statement to provide to the selling Holders
of the applicable Securities and any underwriter therefor a comfort letter
in
customary form and covering matters of the type customarily covered in comfort
letters in connection with primary underwritten offerings, subject to receipt
of
appropriate documentation as contemplated, and only if permitted, by Statement
of Auditing Standards No. 72.
(r) In
the case of the Registered Exchange Offer, if requested by any Initial Purchaser
required to deliver a prospectus in connection with the sale of any Exchanged
Securities or any known Participating Broker-Dealer, the Company shall cause
(i)
its counsel to deliver to such Initial Purchaser or such Participating
Broker-Dealer signed opinions in the forms set forth in Section 7(c) and
7(d) of the Purchase Agreement with such changes as are customary in connection
with the preparation of a Registration Statement and (ii) its independent public
accountants and the independent public accountants with respect to any other
entity for which financial information is provided in the Registration Statement
to deliver to such Initial Purchaser or such Participating Broker-Dealer a
comfort letter, in customary form, meeting the requirements as to the substance
thereof as set forth in Section 7(a) of the Purchase Agreement, with
appropriate date changes.
(s) If
a Registered Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Initial Securities by Holders to the Company (or to such other
Person as directed by the Company) in exchange for the Exchange Securities
or
the Private Exchange Securities, as the case may be, the Company shall mark,
or
caused to be marked, on the Initial Securities so exchanged that such Initial
Securities are being canceled in exchange for the Exchange Securities or the
Private Exchange Securities, as the case may be; in no event shall the Initial
Securities be marked as paid or otherwise satisfied.
(t) The
Company will use its commercially reasonable efforts to (a) if the Initial
Securities have been rated prior to the initial sale of such Initial Securities,
confirm such ratings will apply to the Securities covered by a Registration
Statement, or (b) if the Initial Securities were not previously rated, cause
the
Securities covered by a Registration Statement to be rated with the appropriate
rating agencies, if so requested by Holders of a majority in aggregate principal
amount of Securities covered by such Registration Statement, or by the managing
underwriters, if any.
(u) In
the event that any broker-dealer registered under the Exchange Act shall
underwrite any Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution" (within the meaning
of the Conduct Rules (the “Rules”) of the National Association of Securities
Dealers, Inc. ("NASD")) thereof, whether as a Holder of such Securities or
as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, the Company will assist such broker-dealer in complying
with the requirements of such Rules, including, without limitation, by
(i) if such Rules, including Rule 2720, shall so require, engaging a
"qualified independent underwriter" (as defined in Rule 2720) to participate
in
the preparation of the Registration Statement relating to such Securities,
to
exercise usual standards of due diligence in respect thereto and, if any portion
of the offering contemplated by such Registration Statement is an underwritten
offering or is made through a placement or sales agent, to recommend the yield
of such Securities, (ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters provided in
Section 5 hereof and (iii) providing such information to such
broker-dealer as may be required in order for such broker-dealer to comply
with
the requirements of the Rules.
10
(v) The
Company shall use its commercially reasonable efforts to take all other steps
necessary to effect the registration of the Securities covered by a Registration
Statement contemplated hereby.
4. Registration
Expenses.
The
Company shall bear all fees and expenses incurred in connection with the
performance of its obligations under Sections 1 through 3 hereof (including
the
reasonable fees and expenses, if any, of Cravath, Swaine & Xxxxx LLP,
counsel for the Initial Purchasers, incurred in connection with the Registered
Exchange Offer), whether or not the Registered Exchange Offer or a Shelf
Registration is filed or becomes effective, and, in the event of a Shelf
Registration, shall bear or reimburse the Holders of the Securities covered
thereby for the reasonable fees and disbursements of one firm of counsel
designated by the Holders of a majority in principal amount of the Initial
Securities covered thereby to act as counsel for the Holders of the Initial
Securities in connection therewith.
5. Indemnification.
(a) The
Company agrees to indemnify and hold harmless each Holder of the Securities,
any
Participating Broker-Dealer and each person, if any, who controls such Holder
or
such Participating Broker-Dealer within the meaning of the Securities Act or
the
Exchange Act (each Holder, any Participating Broker-Dealer and such controlling
persons are referred to collectively as the "Indemnified Parties") from and
against any losses, claims, damages or liabilities, joint or several, or any
actions in respect thereof (including, but not limited to, any losses, claims,
damages, liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus or “issuer free writing prospectus,” as defined
in Commission Rule 433 (“Issuer FWP”), relating to a Shelf Registration, or
arise out of, or are based upon, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the
statements therein not misleading, and shall reimburse, as incurred, the
Indemnified Parties for any legal or other expenses reasonably incurred by
them
in connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that (i) the
Company shall not be liable in any such case to the extent that such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus or Issuer FWP relating to a Shelf Registration
in reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein and (ii) with respect to any untrue statement or
omission or alleged untrue statement or omission made in any preliminary
prospectus relating to a Shelf Registration Statement, the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any
Holder or Participating Broker-Dealer from whom the person asserting any such
losses, claims, damages or liabilities purchased the Securities concerned,
to
the extent that a prospectus relating to such Securities was required to be
delivered (including through satisfaction of the conditions of Commission
Rule 172) by such Holder or Participating Broker-Dealer under the
Securities Act in connection with such purchase and any such loss, claim, damage
or liability of such Holder or Participating Broker-Dealer results from the
fact
that there was not conveyed to such person, at or prior to the time of the
sale
of such Securities to such person, an amended or supplemented prospectus or,
if
permitted by Section 3(d), an Issuer FWP correcting such untrue statement
or omission or alleged untrue statement or omission if the Company had
previously furnished copies thereof to such Holder or Participating
Broker-Dealer; provided further, however, that this indemnity agreement will
be
in addition to any liability which the Company may otherwise have to such
Indemnified Party. The Company shall also indemnify underwriters, their officers
and directors and each person who controls such underwriters
within
11
the
meaning of the Securities Act or the Exchange Act to the same extent as provided
above with respect to the indemnification of the Holders of the Securities
if
requested by such Holders.
(b) Each
Holder of the Securities, severally and not jointly, will indemnify and hold
harmless the Company and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act from and against any
losses, claims, damages or liabilities or any actions in respect thereof, to
which the Company or any such controlling person may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus or Issuer FWP relating to a Shelf Registration,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or omission or
alleged untrue statement or omission was made in reliance upon and in conformity
with written information pertaining to such Holder and furnished to the Company
by or on behalf of such Holder specifically for inclusion therein; and, subject
to the limitation set forth immediately preceding this clause, shall reimburse,
as incurred, the Company for any legal or other expenses reasonably incurred
by
the Company or any such controlling person in connection with investigating
or
defending any loss, claim, damage, liability or action in respect thereof.
This
indemnity agreement will be in addition to any liability which such Holder
may
otherwise have to the Company or any of its controlling persons.
(c) Promptly
after receipt by an indemnified party under this Section 5 of notice of the
commencement of any action or proceeding (including a governmental
investigation), such indemnified party will, if a claim in respect thereof
is to
be made against the indemnifying party under this Section 5, notify the
indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve the indemnifying party from any liability
that it may have under subsection (a) or (b) above except to the extent that
it
has been materially prejudiced (through the forfeiture of substantive rights
or
defenses) by such failure; and provided further that the failure to notify
the
indemnifying party shall not relieve it from any liability that it may have
to
an indemnified party otherwise than under subsection (a) or (b) above. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 5 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action, and (ii) does not include a statement as to or an admission
of
fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) If
the indemnification provided for in this Section 5 is otherwise applicable
but
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute
to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
in
subsection (a) or (b)
12
above
(i)
in such proportion as is appropriate to reflect the relative benefits received
by the indemnifying party or parties on the one hand and the indemnified party
on the other from the exchange of the Securities, pursuant to the Registered
Exchange Offer, or (ii) if the allocation provided by the foregoing clause
(i)
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also
the relative fault of the indemnifying party or parties on the one hand and
the
indemnified party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Holder or such other indemnified
party, as the case may be, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid by an indemnified party as a result
of
the losses, claims, damages or liabilities referred to in the first sentence
of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding any other provision of this Section 5(d), the Holders of the
Securities shall not be required to contribute any amount in excess of the
amount by which the net proceeds received by such Holders from the sale of
the
Securities pursuant to a Registration Statement exceeds the amount of damages
which such Holders have otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty
of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this paragraph
(d),
each person, if any, who controls such indemnified party within the meaning
of
the Securities Act or the Exchange Act shall have the same rights to
contribution as such indemnified party and each person, if any, who controls
the
Company within the meaning of the Securities Act or the Exchange Act shall
have
the same rights to contribution as the Company.
(e) The
agreements contained in this Section 5 shall survive the sale of the Securities
pursuant to a Registration Statement and shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
6. Additional
Interest Under Certain Circumstances.
(a)
Additional interest (the "Additional Interest") with respect to the Initial
Securities shall be assessed as follows if any of the following events occur
(each such event in clauses (i) through (vi) below a "Registration
Default":
(i) If
the Company fails to file an Exchange Offer Registration Statement with the
Commission on or prior to the 90th day after the date hereof;
(ii) If
the Exchange Offer Registration Statement is not declared effective by the
Commission on or prior to the 210th day after the date hereof;
(iii) If
the Exchange Offer is not consummated on or before the 240th day after the
date
hereof;
(iv) If
the Company is obligated to file a Shelf Registration Statement pursuant to
Section 2(ii), (iii) or (iv) above, the Company fails to file the Shelf
Registration Statement with the Commission on or prior to the 30th day (the
"Shelf Filing Date") after the date on which the obligation to file a Shelf
Registration Statement arises or the Shelf Registration Statement is not
declared effective on or prior to the 60th day after the Shelf Filing
Date;
13
(v) If
the Company is obligated to file a Shelf Registration Statement pursuant to
Section 2(i) above, the Shelf Registration Statement is not declared effective
on or prior to the 210th day after the date hereof; or
(vi) If
after either the Exchange Offer Registration Statement or the Shelf Registration
Statement is declared (or becomes automatically) effective (A) such
Registration Statement thereafter ceases to be effective; or (B) such
Registration Statement or the related prospectus ceases to be usable (except
as
permitted in paragraph (b)) in connection with resales of Transfer
Restricted Securities during the periods specified herein because either
(1) any event occurs as a result of which the related prospectus forming
part of such Registration Statement would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were
made
not misleading, (2) it shall be necessary to amend such Registration
Statement or supplement the related prospectus, to comply with the Securities
Act or the Exchange Act or the respective rules thereunder, or (3) such
Registration Statement is a Shelf Registration Statement that has expired before
a replacement Shelf Registration Statement has become effective.
Additional
Interest shall accrue on the Initial Securities over and above the interest
set
forth in the title of the Securities from and including the date on which any
such Registration Default shall occur to but excluding the date on which all
such Registration Defaults have been cured. The rate of the Additional Interest
will be $0.05 per week per $1,000 principal amount of Notes for the first 90-day
period immediately following the occurrence of a Registration Default, and
such
rate will increase by an additional $0.05 per week per $1,000 principal amount
of Notes with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum additional interest rate of $0.20
per
week per $1,000 principal amount of Notes. We will pay such additional interest
on regular interest payment dates. Such additional interest will be in addition
to any other interest payable from time to time with respect to the Notes and
the Exchange Notes.
(b) A
Registration Default referred to in Section 6(a)(vi)(B) hereof shall be
deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related prospectus or (y) other material events, with respect
to the Company that would need to be described in such Shelf Registration
Statement or the related prospectus and (ii) in the case of clause (y), the
Company is proceeding promptly and in good faith to amend or supplement such
Shelf Registration Statement and related prospectus to describe such events;
provided, however, that in any case if such Registration Default occurs for
a
continuous period in excess of 30 days, Additional Interest shall be payable
in
accordance with the above paragraph from the day such Registration Default
occurs until such Registration Default is cured.
(c) Any
amounts of Additional Interest due pursuant to clause (i), (ii), (iii), (iv),
(v) or (vi) of Section 6(a) above will be payable in cash on the regular
interest payment dates with respect to the Initial Securities. The amount of
Additional Interest will be determined by multiplying the applicable Additional
Interest rate by the principal amount of the Initial Securities, multiplied
by a
fraction, the numerator of which is the number of days such Additional Interest
rate was applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months), and the denominator of which is
360.
14
(d) "Transfer
Restricted Securities" means each Initial Security until (i) the date on which
such Transfer Restricted Security has been exchanged by a person other than
a
broker-dealer for a freely transferable Exchange Security in the Registered
Exchange Offer, (ii) following the exchange by a broker-dealer in the Registered
Exchange Offer of a Initial Security for an Exchange Note, the date on which
such Exchange Note is sold to a purchaser who receives from such broker-dealer
on or prior to the date of such sale a copy of the prospectus contained in
the
Exchange Offer Registration Statement, (iii) the date on which such Initial
Security has been effectively registered under the Securities Act and disposed
of in accordance with the Shelf Registration Statement or (iv) the date on
which
such Initial Securities is distributed to the public pursuant to Rule 144 under
the Securities Act or is saleable pursuant to Rule 144(k) under the Securities
Act.
7. Rule
144A. The
Company shall use its commercially reasonable efforts to file the reports
required to be filed by it under the Securities Act and the Exchange Act in
a
timely manner and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Initial Securities, make
available other information so long as necessary to permit sales of their
securities pursuant to Rule 144A. The Company covenants that it will take
such further action as any Holder of Initial Securities may reasonably request,
all to the extent required from time to time to enable such Holder to sell
Initial Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144A (including the requirements
of Rule 144A(d)(4)). The Company will provide a copy of this Agreement to
prospective purchasers of Initial Securities identified to the Company by the
Initial Purchasers upon request. Upon the request of any Holder of Initial
Securities, the Company shall deliver to such Holder a written statement as
to
whether it has complied with such requirements. Notwithstanding the foregoing,
nothing in this Section 7 shall be deemed to require the Company to
register any of its securities pursuant to the Exchange Act.
8. Underwritten
Registrations. If
any of the Transfer Restricted Securities covered by any Shelf Registration
are
to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will administer the offering ("Managing
Underwriters") will be selected by the Holders of a majority in aggregate
principal amount of such Transfer Restricted Securities to be included in such
offering.
No
person
may participate in any underwritten registration hereunder unless such person
(i) agrees to sell such person's Transfer Restricted Securities on the basis
reasonably provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements
and
other documents reasonably required under the terms of such underwriting
arrangements.
9. Miscellaneous.
(a) Amendments
and Waivers. The
provisions of this Agreement may not be amended, modified or supplemented,
and
waivers or consents to departures from the provisions hereof may not be given,
except by the Company and the written consent of the Holders of a majority
in
principal amount of the Securities affected by such amendment, modification,
supplement, waiver or consents.
(b) Notices. All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand delivery, first-class mail, facsimile transmission,
or
air courier which guarantees overnight delivery:
15
(1)
if to
a Holder of the Securities, at the most current address given by such Holder
to
the Company.
(2)
if to
the Initial Purchasers;
Credit
Suisse Securities (USA) LLC
Xxxxxx
Xxxxxxx Xxxxxx
New
York,
NY 00000-0000
Fax
No.:
(000) 000-0000
Attention:
LCD-IBD Group
with
a
copy to:
Xxxxxxx,
Xxxxxx & Xxxxx LLP
Worldwide
Plaza
000
Xxxxxx Xxxxxx
New
York,
NY 10019
Attention:
Xxxxxxx X. Xxxxxx XXX
(3) if
to the
Company, at its address as follows:
Sun
Healthcare Group, Inc.
00000
Xxx
Xxxxxx, Xxxxx 000
Irvine,
CA 92612
Attention:
Xxxxxxx Xxxxxx
with
a
copy to:
O'Melveny &
Xxxxx LLP
000
Xxxxx
Xxxx Xxxxxx
Los
Angeles, CA 90071
Attention:
Xxxxxxx Xxxxxxx
All
such
notices and communications shall be deemed to have been duly given: at the
time
delivered by hand, if personally delivered; three business days after being
deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged
by recipient's facsimile machine operator, if sent by facsimile transmission;
and on the day delivered, if sent by overnight air courier guaranteeing next
day
delivery.
(c) No
Inconsistent Agreements. The
Company has not, as of the date hereof, entered into, nor shall it, on or after
the date hereof, enter into, any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(d) Successors
and Assigns. This
Agreement shall be binding upon the Company and its successors and
assigns.
(e) Counterparts. This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and
the
same agreement.
16
(f) Headings. The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(g) Governing
Law. THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
(h) Severability. If
any one or more of the provisions contained herein, or the application thereof
in any circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect and
of
the remaining provisions contained herein shall not be affected or impaired
thereby.
(i) Securities
Held by the Company. Whenever
the consent or approval of Holders of a specified percentage of principal amount
of Securities is required hereunder, Securities held by the Company or its
affiliates (other than subsequent Holders of Securities if such subsequent
Holders are deemed to be affiliates solely by reason of their holdings of such
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
17
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to the Company a counterpart hereof, whereupon this instrument,
along
with all counterparts, will become a binding agreement among the several Initial
Purchasers, the Company and the Guarantors in accordance with its
terms.
Very
truly yours,
SUN
HEALTHCARE GROUP, INC.
By:
Xxxxxxx
Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
General Counsel
18
Americare
Health Services Corp.
Atlantic
Medical Supply Company, Inc.
CareerStaff
Unlimited, Inc.
CareerStaff
Services Corporation
Great
Falls Health Care Company, LLC
HTA
of
New York, Inc.
Masthead
Corporation
Peak
Medical Ancillary Services, Inc.
Peak
Medical Assisted Living, Inc.
Peak
Medical Colorado No. 2, Inc.
Peak
Medical Colorado No. 3, Inc.
Peak
Medical Corporation
Peak
Medical Farmington, Inc.
Peak
Medical Gallup, Inc.
Peak
Medical Idaho Operations, Inc.
Peak
Medical Las Cruces No. 2, Inc.
Peak
Medical Las Cruces, Inc.
Peak
Medical Montana Operations, Inc.
Peak
Medical New Mexico No. 3, Inc.
Peak
Medical NM Management Services, Inc.
Peak
Medical of Boise, Inc.
Peak
Medical of Colorado, Inc.
Peak
Medical of Idaho, Inc.
Peak
Medical of Montana, Inc.
Peak
Medical of Utah, Inc.
Peak
Medical Oklahoma No. 1, Inc.
Peak
Medical Oklahoma No. 3, Inc.
Peak
Medical Oklahoma No. 4, Inc.
Peak
Medical Oklahoma No. 5, Inc.
Peak
Medical Oklahoma No. 7, Inc.
Peak
Medical Oklahoma No. 8, Inc.
Peak
Medical Oklahoma No. 9, Inc.
Peak
Medical Oklahoma No. 10, Inc.
Peak
Medical Oklahoma No. 11, Inc.
Peak
Medical Oklahoma No. 12, Inc.
Peak
Medical Oklahoma No. 13, Inc.
Peak
Medical Peachtree, Inc.
Peak
Medical Roswell, Inc.
Peak
Medical Utah No. 2, Inc.
PM
Henryetta Holdings, Inc.
PM
Oxygen
Services, Inc.
PMC
Hospice Services, Inc.
ProCare
One Nurses, LLC
Regency
Health Services, Inc.
SHG
Services, Inc.
SolAmor
Hospice Corporation
SunAlliance
Healthcare Services, Inc.
19
SunBridge
Xxxxxxx Health Care Corp.
SunBridge
Xxxxxxxx Enterprises, Inc.
XxxXxxxxx
Xxxxxxxx Rehabilitation Center,
Inc.
SunBridge
Care Enterprises, Inc.
SunBridge
Care Enterprises West
XxxXxxxxx
Xxxxxxxxxx Rehabilitation Center
SunBridge
Charlton Healthcare, Inc.
SunBridge
Circleville Health Care Corp.
SunBridge
Clipper Home of North Xxxxxx, Inc.
SunBridge
Clipper Home of Portsmouth, Inc.
SunBridge
Clipper Home of Rochester, Inc.
SunBridge
Clipper Home of Wolfeboro, Inc.
SunBridge
Xxxxxx Health Care Corp.
SunBridge
Gardendale Health Care Center,
Inc.
SunBridge
Glenville Health Care, Inc.
XxxXxxxxx
Xxxxxxx Nursing Home, Inc.
SunBridge
Hallmark Health Services, Inc.
SunBridge
Harbor View Rehabilitation Center
SunBridge
Healthcare Corporation
SunBridge
Xxxx Xxxxx Healthcare, Inc.
SunBridge
Maplewood Health Care Center of
Jackson, Tennessee, Inc.
SunBridge
Xxxxxx Health Care Corp.
SunBridge
Meadowbrook Rehabilitation
Center
SunBridge
Nursing Home, Inc.
SunBridge
Paradise Rehabilitation Center,
Inc.
SunBridge
Xxxxxx Health Care Corp.
SunBridge
Regency Rehab Hospitals, Inc.
SunBridge
Regency-North Carolina, Inc.
SunBridge
Regency-Tennessee, Inc.
SunBridge
Retirement Care Associates, Inc.
SunBridge
Salem Health Care Corp.
XxxXxxxxx
San Bernardino Rehabilitation
Hospital, Inc.
XxxXxxxxx
Xxxxxxx Hills Rehabilitation
Center
SunBridge
Statesboro Health Care Center,
Inc.
SunBridge
Stockton Rehabilitation Center,
Inc.
SunBridge
Xxxxxxx Landing, Inc.
SunBridge
West Tennessee, Inc.
SunDance
Rehabilitation Agency, Inc.
SunDance
Rehabilitation Corporation
SunDance
Services Corporation
20
SunHealth
Specialty Services, Inc.
SunMark
of New Mexico, Inc.
The
Mediplex Group, Inc.
By:
Xxxxxxx
Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
Vice President
21
The
foregoing Registration
Rights
Agreement is hereby confirmed
and
accepted as of the date first
above
written.
by: Credit
Suisse Securities (USA) LLC
By:
Xxxxxx
Xxxxxxxx
Name:
Xxxxxx Xxxxxxxx
Title:
Managing Director
22
ANNEX
A
Each
broker-dealer that receives Exchange Securities for its own account pursuant
to
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus,
a
broker-dealer will not be deemed to admit that it is an "underwriter" within
the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Initial Securities
where such Initial Securities were acquired by such broker-dealer as a result
of
market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date (as defined herein),
it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
ANNEX
B
Each
broker-dealer that receives Exchange Securities for its own account in exchange
for Securities, where such Initial Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of
Distribution."
ANNEX
C
PLAN
OF
DISTRIBUTION
Each
broker-dealer that receives Exchange Securities for its own account pursuant
to
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities. This Prospectus, as
it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Initial Securities where such Initial Securities were acquired as a result
of
market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date, it will make this
prospectus, as amended or supplemented, available to any broker-dealer for
use
in connection with any such resale.
The
Company will not receive any proceeds from any sale of Exchange Securities
by
broker-dealers. Exchange Securities received by broker-dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one
or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Securities or a combination
of
such methods of resale, at market prices prevailing at the time of resale,
at
prices related to such prevailing market prices or negotiated prices. Any such
resale may be made directly to purchasers or to or through brokers or dealers
who may receive compensation in the form of commissions or concessions from
any
such broker-dealer or the purchasers of any such Exchange Securities. Any
broker-dealer that resells Exchange Securities that were received by it for
its
own account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Securities may be deemed to
be
an "underwriter" within the meaning of the Securities Act and any profit on
any
such resale of Exchange Securities and any commission or concessions received
by
any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that, by acknowledging that
it
will deliver and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities
Act.
For
a
period of 180 days after the Expiration Date the Company will promptly send
additional copies of this Prospectus and any amendment or supplement to this
Prospectus to any broker-dealer that requests such documents in the Letter
of
Transmittal. The Company has agreed to pay all expenses incident to the Exchange
Offer (including the expenses of one counsel for the Holders of the Securities)
other than commissions or concessions of any brokers or dealers and will
indemnify the Holders of the Securities (including any broker-dealers) against
certain liabilities, including liabilities under the Securities
Act.
ANNEX
D
CHECK
HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF
THE
PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
____________________________________________
Address:
___________________________________________
___________________________________________
If
the
undersigned is not a broker-dealer, the undersigned represents that it is not
engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities,
it
acknowledges that it will deliver a prospectus in connection with any resale
of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
SCHEDULE
I
Subsidiary
Guarantors
|
1.
|
Americare
Health Services Corp.
|
|
2.
|
Atlantic
Medical Supply Company, Inc.
|
|
3.
|
CareerStaff
Unlimited, Inc.
|
|
4.
|
CareerStaff
Services Corporation
|
|
5.
|
Great
Falls Health Care Company, LLC
|
|
6.
|
HTA
of New York, Inc.
|
|
7.
|
Masthead
Corporation
|
|
8.
|
Peak
Medical Ancillary Services, Inc.
|
|
9.
|
Peak
Medical Assisted Living, Inc.
|
|
10.
|
Peak
Medical Colorado No. 2, Inc.
|
|
11.
|
Peak
Medical Colorado No. 3, Inc.
|
|
12.
|
Peak
Medical Corporation
|
|
13.
|
Peak
Medical Farmington, Inc.
|
|
14.
|
Peak
Medical Gallup, Inc.
|
|
15.
|
Peak
Medical Idaho Operations, Inc.
|
|
16.
|
Peak
Medical Las Cruces No. 2, Inc.
|
|
17.
|
Peak
Medical Las Cruces, Inc.
|
|
18.
|
Peak
Medical Montana Operations, Inc.
|
|
19.
|
Peak
Medical New Mexico No. 3, Inc.
|
|
20.
|
Peak
Medical NM Management Services, Inc.
|
|
21.
|
Peak
Medical of Boise, Inc.
|
|
22.
|
Peak
Medical of Colorado, Inc.
|
|
23.
|
Peak
Medical of Idaho, Inc.
|
|
24.
|
Peak
Medical of Montana, Inc.
|
|
25.
|
Peak
Medical of Utah, Inc.
|
|
26.
|
Peak
Medical Oklahoma No. 1, Inc.
|
|
27.
|
Peak
Medical Oklahoma No. 3, Inc.
|
|
28.
|
Peak
Medical Oklahoma No. 4, Inc.
|
|
29.
|
Peak
Medical Oklahoma No. 5, Inc.
|
|
30.
|
Peak
Medical Oklahoma No. 7, Inc.
|
|
31.
|
Peak
Medical Oklahoma No. 8, Inc.
|
|
32.
|
Peak
Medical Oklahoma No. 9, Inc.
|
|
33.
|
Peak
Medical Oklahoma No. 10, Inc.
|
|
34.
|
Peak
Medical Oklahoma No. 11, Inc.
|
|
35.
|
Peak
Medical Oklahoma No. 12, Inc.
|
|
36.
|
Peak
Medical Oklahoma No. 13, Inc.
|
|
37.
|
Peak
Medical Peachtree, Inc.
|
|
38.
|
Peak
Medical Roswell, Inc.
|
|
39.
|
Peak
Medical Utah No. 2, Inc.
|
|
40.
|
PM
Henryetta Holdings, Inc.
|
|
41.
|
PM
Oxygen Services, Inc.
|
|
42.
|
PMC
Hospice Services, Inc.
|
|
43.
|
ProCare
One Nurses, LLC
|
|
44.
|
Regency
Health Services, Inc.
|
|
45.
|
SHG
Services, Inc.
|
|
46.
|
SolAmor
Hospice Corporation
|
|
47.
|
SunAlliance
Healthcare Services, Inc.
|
|
48.
|
SunBridge
Bxxxxxx Health Care Corp.
|
|
49.
|
SunBridge
Bxxxxxxx Enterprises, Inc.
|
|
50.
|
SunBridge
Xxxxxxxx Rehabilitation Center, Inc.
|
|
51.
|
SunBridge
Care Enterprises, Inc.
|
|
52.
|
SunBridge
Care Enterprises West
|
|
53.
|
XxxXxxxxx
Xxxxxxxxxx Rehabilitation Center
|
|
54.
|
SunBridge
Charlton Healthcare, Inc.
|
|
55.
|
SunBridge
Circleville Health Care Corp.
|
|
56.
|
SunBridge
Clipper Home of North Cxxxxx, Inc.
|
|
57.
|
SunBridge
Clipper Home of Portsmouth, Inc.
|
|
58.
|
SunBridge
Clipper Home of Rochester, Inc.
|
|
59.
|
SunBridge
Clipper Home of Wolfeboro, Inc.
|
|
60.
|
SunBridge
Dxxxxx Health Care Corp.
|
|
61.
|
SunBridge
Gardendale Health Care Center, Inc.
|
|
62.
|
SunBridge
Glenville Health Care, Inc.
|
|
63.
|
XxxXxxxxx
Xxxxxxx Nursing Home, Inc.
|
|
64.
|
SunBridge
Hallmark Health Services, Inc.
|
|
65.
|
SunBridge
Harbor View Rehabilitation Center
|
|
66.
|
SunBridge
Healthcare Corporation
|
|
67.
|
SunBridge
Xxxx Xxxxx Healthcare, Inc.
|
|
68.
|
SunBridge
Maplewood Health Care Center of Jackson, Tennessee,
Inc.
|
|
69.
|
SunBridge
Mxxxxx Health Care Corp.
|
|
70.
|
SunBridge
Meadowbrook Rehabilitation Center
|
|
71.
|
SunBridge
Nursing Home, Inc.
|
|
72.
|
SunBridge
Paradise Rehabilitation Center, Inc.
|
|
73.
|
SunBridge
Pxxxxx Health Care Corp.
|
|
74.
|
SunBridge
Regency Rehab Hospitals, Inc.
|
|
75.
|
SunBridge
Regency-North Carolina, Inc.
|
|
76.
|
SunBridge
Regency-Tennessee, Inc.
|
|
77.
|
SunBridge
Retirement Care Associates, Inc.
|
|
78.
|
SunBridge
Salem Health Care Corp.
|
|
79.
|
XxxXxxxxx
San Bernardino Rehabilitation Hospital, Inc.
|
|
80.
|
SunBridge
Xxxxxxx Hills Rehabilitation Center
|
|
81.
|
SunBridge
Statesboro Health Care Center, Inc.
|
|
82.
|
SunBridge
Stockton Rehabilitation Center, Inc.
|
|
83.
|
SunBridge
Sxxxxxx Landing, Inc.
|
|
84.
|
SunBridge
West Tennessee, Inc.
|
|
85.
|
SunDance
Rehabilitation Agency, Inc.
|
|
86.
|
SunDance
Rehabilitation Corporation
|
|
87.
|
SunDance
Services Corporation
|
|
88.
|
SunHealth
Specialty Services, Inc.
|
|
89.
|
SunMark
of New Mexico, Inc.
|
|
90.
|
The
Mediplex Group, Inc.
|
SCHEDULE
II
Harborside
Guarantors
|
0
|
0000
Xxxxxx Xxxxxx, LLC
|
|
0
|
0000
Xxxxxxxxx Xxxx, LLC
|
|
0
|
0000
XX 00xx Xxxx, LLC
|
|
0
|
0000
Xxxxxxxxxx Xxxx, LLC
|
|
0
|
0000
Xxxxxx Xxxxx Xxxx, LLC
|
|
0
|
0000
Xxxxxxxxx Xxxxxxxxx, North, LLC
|
|
7
|
0000
Xxxxxxx Xxxxxx North, LLC
|
|
0
|
0000
Xxxxx Xxxx, LLC
|
|
0
|
000
Xxxxxxx Xxxxxx, LLC
|
|
10
|
0000
Xxxxxxxxx Xxxxx LLC
|
|
00
|
0000
Xxxxxxxx Xxxx, LLC
|
|
12
|
Bay
Tree Nursing Center Corp.
|
|
13
|
Belmont
Nursing Center Corp.
|
|
00
|
Xxxxxxxx
Xxxxxx Nursing, LLC
|
|
15
|
Caring
Choices Hospice, LLC
|
|
16
|
Connecticut
Holdings I, LLC
|
|
17
|
Countryside
Care Center Corp.
|
|
18
|
Cresview
Nursing, LLC
|
|
19
|
Falmouth
Healthcare, LLC
|
|
20
|
Florida
Administrative Services, LLC
|
|
21
|
Florida
Holdings I, LLC
|
|
22
|
Florida
Holdings II, LLC
|
|
23
|
Florida
Holdings III, LLC
|
|
24
|
Grant
Manor, LLC
|
|
25
|
Harborside
Administrative Services, LLC
|
|
26
|
Harborside
Connecticut Limited Partnership
|
|
27
|
Harborside
Danbury Limited Partnership
|
|
28
|
Harborside
Health I, LLC
|
|
29
|
Harborside
Healthcare Limited Partnership
|
|
30
|
Harborside
Healthcare Advisors Limited Partnership
|
|
31
|
Harborside
Healthcare Baltimore Limited Partnership
|
|
32
|
Harborside
Holdings I, LLC
|
|
33
|
Harborside
Massachusetts Limited Partnership
|
|
34
|
Harborside
North Toledo Limited Partnership
|
|
35
|
Harborside
of Cleveland Limited Partnership
|
|
36
|
Harborside
of Dayton Limited Partnership
|
|
37
|
Harborside
of Ohio Limited Partnership
|
|
38
|
Harborside
Rehabilitation Limited Partnership
|
|
39
|
Harborside
Rhode Island Limited Partnership
|
|
40
|
Harborside
Swanton, LLC
|
|
00
|
Xxxxxxxxxx
Xxxxxxxx, LLC
|
|
42
|
Harborside
Toledo Business LLC
|
|
43
|
Harborside
Toledo Limited Partnership
|
|
44
|
Harborside
Txxx, LLC
|
|
00
|
Xxxxxxxxxx
Xxxxx Xxxxx, LLC
|
|
46
|
Hbr
Danbury, LLC
|
|
47
|
Hbr
Kentucky, LLC
|
|
48
|
Hbr
Stamford, LLC
|
|
49
|
Hbr
Trumbull LLC
|
|
50
|
HHC
1998-I Trust
|
|
51
|
HHC
Nutrition Services, LLC
|
|
52
|
HHCI
Limited Partnership
|
|
00
|
Xxxxxxxxxx
Xxxxx Limited Partnership
|
|
54
|
Kentucky
Holdings I, LLC
|
|
55
|
KHI
LLC
|
|
56
|
Klondike
Manor, LLC
|
|
57
|
Leisure
Years Nursing, LLC
|
|
58
|
LTC
Leasing, LLC
|
|
59
|
Marietta
Healthcare, LLC
|
|
60
|
Maryland
Harborside Corp.
|
|
61
|
Mashpee
Healthcare, LLC
|
|
62
|
Massachusetts
Holdings II, Limited Partnership
|
|
63
|
Massachusetts
Holdings I, LLC
|
|
64
|
New
Hampshire Holdings, LLC
|
|
65
|
Northwest
Holdings I, LLC
|
|
66
|
Oakhurst
Manor Nursing Center Corp.
|
|
67
|
Ohio
Holdings I, LLC
|
|
68
|
Orchard
Ridge Nursing Center Corp.
|
|
69
|
Owenton
Manor Nursing, LLC
|
|
70
|
Pine
Tree Villa LLC
|
|
71
|
Regency
Nursing, LLC
|
|
72
|
Riverside
Retirement Limited Partnership
|
|
73
|
Sunset
Point Nursing Center Corp.
|
|
74
|
Wakefield
Healthcare, LLC
|
|
75
|
West
Bay Nursing Center Corp.
|
|
76
|
Westfield
Healthcare, LLC
|
|
77
|
Woodspoint
LLC
|
|
78
|
Harborside
New Hampshire Limited Partnership
|
|
79
|
HBR
Bxxxxxxx, LLC
|
|
80
|
HBR
Bxxxxxx Drive, LLC
|
|
81
|
HBR
Bowling Green LLC
|
|
82
|
HBR
Brownsville, LLC
|
|
00
|
XXX
Xxxxxxxx Xxxx, LLC
|
|
84
|
HBR
Elizabethtown, LLC
|
|
85
|
HBR
Lewisport, LLC
|
|
86
|
HBR
Madisonville, LLC
|
|
87
|
HBR
Owensboro, LLC
|
|
88
|
HBR
Paducah, LLC
|
|
89
|
HBR
Wxxxxxxx, LLC
|
|
90
|
Vital
Care Services, LLC
|
EXHIBIT
C
SUN
HEALTHCARE GROUP, INC.
$200,000,000
Senior Subordinated Notes Due 2015
JOINDER
TO THE REGISTRATION RIGHTS AGREEMENT
[
], 2007
CREDIT
SUISSE SECURITIES (USA) LLC,
CIBC
WORLD MARKETS CORP.,
UBS
SECURITIES LLC,
JXXXXXXXX
& COMPANY, INC.,
c/o
Credit Suisse Securities (USA) LLC,
Xxxxxx
Xxxxxxx Xxxxxx,
New
York,
New York 10010-3629
Ladies
and Gentlemen:
Reference
is made to the Purchase Agreement (the “Purchase Agreement”) dated March 22,
2007, among Sun Healthcare Group, Inc., a Delaware corporation (the “Company”),
its subsidiary guarantors (the “Guarantors”), Credit Suisse Securities (USA)
LLC, CIBC World Markets Corp., UBS Securities LLC, and Jxxxxxxxx & Company,
Inc. (collectively, the “Purchasers”), concerning the purchase of the Initial
Securities from the Company by the Purchasers. This is the Joinder Agreement
to
the Registration Rights Agreement dated April 12, 2007 (the “Registration Rights
Agreement” or this “Agreement”). Capitalized terms used herein but not defined
herein shall have the meanings ascribed to such terms in the Registration Rights
Agreement.
Each
of
the parties hereto agrees that this Agreement is being executed and delivered
in
connection with the issue and sale of the Initial Securities pursuant to the
Purchase Agreement and to induce the Purchasers to purchase the Initial
Securities thereunder. This Agreement is being executed on the Closing Date
or,
if applicable, the Escrow Release Date, concurrently with the consummation
of
the Acquisition.
1. Joinder.
Each of
Harborside and the Harborside Guarantors listed on Schedule II to the
Registration Rights Agreement (together, the “Joining Parties”) hereby agrees to
become bound by the terms, conditions and other provisions of the Registration
Rights Agreement with all attendant rights, duties and obligations stated
therein, with the same force and effect as if originally named therein as a
party and as if such party executed the Registration Rights Agreement on the
date thereof.
2. Representations
and Warranties of the Joining Parties.
Each
of
the Joining Parties represents and warrants to, and agrees with, the Purchasers
on and as of the date hereof that this Agreement has been duly authorized,
executed and delivered by such Joining Party.
3. GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK.
4. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
each
be deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
5. Amendments.
No
amendment or waiver of any provision of this Agreement, nor any consent or
approval to any departure therefrom, shall in any event be effective unless
the
same shall be in writing and signed by the parties hereto.
6. 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.
EXHIBIT
A
If
the
foregoing is in accordance with your understanding, please indicate your
acceptance of this Agreement by signing in the space provided
below.
Very
truly yours,
|
HARBORSIDE
HEALTHCARE CORPORATION, INC.,
|
|
|
by
|
|
|
Name:
|
|
|
Title:
|
|
|
[HARBORSIDE
GUARANTORS],
|
|
|
by
|
|
|
Name: [authorized
signatory]
|
|
